HomeMy WebLinkAbout20060094.tiff BOARD OF COUNTY COMMISSIONERS HEARING
RE: APPLICANT MARCELLE GEUDNER
Docket No. 2005-13, PL 1684
February 16, 2005
Taken By: KRISTY R. HUGHES
EXHIBIT
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2006-0094
PLEASE ATTACH TO YOUR COPY OF THE TRANSCRIPT OF :
WELD COUNTY BOARD OF COMMISSIONERS HEARING
Re : APPLICANT MARCELLE GEUDNER C/0 JESS ARAGON
Docket No. : 2005-13 , PL 1684
Date of Hearing: February 16, 2005
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PLEASE ATTACH TO YOUR COPY OF THE TRANSCRIPT OF :
WELD COUNTY BOARD OF COMMISSIONERS WORK SESSION
Re: APPLICATION OF MARCELLE GEUDNER C/O JESS ARAGON
Docket No. : 2005-13, PL 1684
Date of Work Session: February 16, 2005
THIS TRANSCRIPT HAS BEEN FILED (fl'
D \'7
XX Signature waived or not required
Reading and signing was not requested by the
deponent
Unsigned; signed signature page and change
sheets, if any, to be filed at trial
Not signed, notice duly given pursuant to the
Rules of Civil Procedure.
Signed by the deponent with no changes
Signed by the deponent with changes, copy of
which is enclosed
Unsigned, with changes, copy of which is
enclosed
FILED WITH: ESTHER- GESICK, nACTING CLERK TO THE BOARD
/DATE FILED: v/ (1 / ) S
RECEIVED BY:
Enclosures : (As above noted)
cc : Esther Gesick, Acting Clerk to the Board
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BOARD OF COUNTY COMMISSIONERS
915 10TH STREET
GREELEY, COLORADO
WEDNESDAY, FEBRUARY 16, 2005
HEARING
RE : APPLICANTS MARCELLE GEUDNER C/O JESS ARAGON
DOCKET NO. : 2005-13 , PL 1684
Copy
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 2
IN ATTENDANCE
COMMISSIONERS
Bill Jerke
Mike Geile
Dave Long
Rob Masden
Glenn Vaad
STAFF
Michelle Martin, Planning Staff
Char Davis, Health Staff
Don Carroll , Public Works
Lee Morrison, Esq. , Assistant County Attorney
Esther Gesick, Acting Clerk to the Board
For the Applicant :
RICK ZIER, ESQ .
Attorney at Law
— 322 East Oak Street
Fort Collins , Colorado 80524
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 3
1 PROCEEDINGS
2 (Proceedings began at 10 : 03 a .m. )
- 3 CHAIRMAN JERKE : Thank you. Bring Weld
4 County Board of Commissioners Wednesday hearing meeting
5 to order . We ' re going to hear just the one case,
— 6 2005-13 , Planning Document 1684 . But before I call it
7 up, I would go ahead and ask for the roll call .
8 ESTHER GESICK: Glenn Vaad?
— 9 COMMISSIONER VAAD : Here .
10 ESTHER GESICK: Rob Masden?
11 COMMISSIONER MASDEN: Here .
— 12 ESTHER GESICK: Dave Long?
13 COMMISSIONER LONG: Here .
14 ESTHER GESICK: Mike Geile?
— 15 COMMISSIONER GEILE : Here .
16 ESTHER GESICK: Bill Jerke?
17 CHAIRMAN JERKE : Here .
_ 18 We ' re all here and accounted for . So that ' s
19 an improvement over the way I usually do this, which
20 I 'm halfway through the hearing before I call for the
21 roll call .
22 At this point , Counselor, are you ready to
23 take a record for this case?
4 LEE MORRISON: Yes , Mr . Chairman. This is
25 Docket No . 2005-13 , the application of Marcelle
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 4
1 Geudner, care of Jess Aragon for a site specific
2 development plan and use by special review permit
- 3 No . 1495 , for a business permitted as a use by right or
4 accessory use in a commercial district , landscape
5 materials yard in the A, agriculture, zone district ,
- 6 which is located in part of the northeast 1/4
7 Section 8 , Township 5 north, Range 67 west of the 6th
8 P .M. , Weld County, Colorado .
- 9 Notice was published February 2nd, 2005 , in
10 the Fort Lupton Press and evidence of posting provided
11 in Exhibit E .
— 12 CHAIRMAN JERKE : Thank you. Michelle, are
13 you ready?
14 MICHELLE MARTIN: Sure . We are working on
— 15 the Power Point presentation, so that may come up
16 momentarily.
17 Michelle Martin, department of planning
- 18 services . Site specific development plan and a special
19 review permit for a business permitted as a use by
20 right or accessory use in the commercial zone district ,
_ 21 landscaping materials yard, in the A, agriculture zone
22 district .
23 The sign announcing the board of county
4 commissioners hearing was posted February 1 , 2005 , by
25 planning staff .
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 5
1 The site is approximately 753 feet west of
2 County Road 17 and approximately a half a mile north of
- 3 the State Highway 34 .
4 The uses which will be permitted will be
5 compatible with the existing surrounding land uses .
- 6 North of the site is pasture with a home approximately
7 400 feet from the proposed development . An existing
8 animal confinement operation is east of the site . A
- 9 poultry business and sod farm lie south of the site . A
10 single family residence is within close proximity to
11 the west of the site .
— 12 Conditions of approval and development
13 standards ensure that the storage and parking areas are
14 adequately screened from the adjacent properties .
— 15 Here is the site . The site is outlined in
16 dark.
17 Eleven referral agencies reviewed this case .
- 18 Ten responded favorably or included conditions that
19 have been addressed through development standards and
20 conditions of approval . No comments were received by
21 the Colorado Division of Wildlife .
22 The department planning services has received
- 23 several letters from surrounding property owners .
4 According to the letters , the majority of the concerns
25 are as follows , noise, dust , traffic and compatibility
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 6
1 with the surrounding area .
2 I have handed out an exhibit in which a few
�- 3 of the surrounding property owners have filed a civil
4 case with district court to determine if the applicants
5 have a right to use the access road without the consent
6 or authorization of the neighbors .
7 Planning commission is recommending approval
8 along with the attached conditions of approval and
9 development standards .
10 There are some photos of the site . This is
11 looking southwest from the access road. This is
— 12 looking due west , once again, from the access road.
13 Looking northwest towards the surrounding properties .
14 Looking southwest into the site . Looking southwest ,
15 once again, into the site . Looking northeast at some
16 surrounding property owners . And then looking
17 southeast from the surrounding property owner to the
18 site . Looking east from the access road. Those are
19 all the photos I have for you today.
20 I can answer any questions . I know the
21 applicants are here, as well as their attorney, and
22 they can answer any questions as well .
23 CHAIRMAN JERKE : Questions?
4 Commissioner Masden?
25 COMMISSIONER MASDEN: Thank you,
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 7
1 Mr. Chairman. Michelle, earlier you had stated
2 something about permission for use of the access road.
- 3 MICHELLE MARTIN: That is correct . I have
4 just handed it to Lee . They have - - I will probably
5 let them address it further .
- 6 COMMISSIONER MASDEN: All right . Thank you .
7 LEE MORRISON: Yes . Mr . Commissioner, the --
8 Gary and Kathleen Weinmeister and Harry Hartshore and
- 9 Charles and Tina Schenner and Thomas Whiler have just
10 filed this complaint against Marcelle Geudner, who is
11 the owner of record for the property, and another
- „12 property to the east , which is Cozy Cow Dairy.
13 The relief they ask for is under Rule 57 for
14 a declaration of the rights of the parties , a
— 15 declaration of the roadway, 60-foot wide roadway, and
16 a -- and a requirement by the Court that TimberRock
17 move their attempted modifications to the roadway and
18 return the roadway to its prior width and condition;
19 and that the Court enter an order establishing rights,
20 duties, obligations of the use of the roadway by and
21 amongst the adjacent property owners ; and establish the
22 obligations for payment of cost and expenses of
23 maintenance of the roadway.
4 Now, obviously the applicants haven ' t had an
25 opportunity to respond and Mr. Zier said he had not
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 8
1 seen this before, five minutes before the hearing.
2 This issue has been raised a number of times , but not
3 brought to the Court , apparently, until now.
4 And what I advised you in several other
5 proceedings was that , you know, you ' re not the final
- 6 determiners of the use of that road. But that - - but
7 in the absence of a Court order saying Geudner couldn ' t
8 use that road or what they were doing was improper,
- 9 then I didn ' t see a reason why that road couldn' t be
10 used to access the subject property and that
11 improvements couldn ' t be made by them to access the
— 12 subject property.
13 Now, it ' s going to go -- presumably go to the
14 courts where those issues will be raised. It doesn ' t
_ 15 say they can ' t use it . I don ' t read this to indicate
16 that these other parties are seeking a declaration that
17 they' re not allowed to use the road.
18 I see it and I think Mr . Hellerich, who
19 drafted this, is present and may have a different view
20 of what he wrote . But I see it as more an issue of
21 what ' s been done in the way of one side ' s view of
22 improvements , apparently, the other side ' s view of
23 damaging the roadway in some way.
4 I guess your next question might be, what
25 does that do to this case?
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 9
1 I don ' t think it prevents you from hearing
2 the case, ' cause there is no order. There ' s no
-' 3 injunction. There ' s no request for injunction. And
4 there ' s no order that says they can' t make
5 improvements .
- 6 It does mean that if you - - if you get to the
7 end of this process , we may need some additional
8 conditions and anything that would address it . And it
9 certainly puts the applicant at a difficult position
10 not knowing where this is going to end up . But I don ' t
11 think you preclude it from proceeding. It does make it
— „12 a little more involved to figure out how to draft a
13 resolution if you were to grant approval .
14 CHAIRMAN JERKE : That ' s the big question,
_ 15 Lee, is the kind of condition and does this body - -
16 board of county commissioners have the ability to go
17 ahead and grant a conditional approval of the USR that
18 would be conditioned upon a future action by the Court .
19 So that if the Court was to come in and
20 potentially deny the use of the road for the purpose
21 the applicant wants , that somehow what we had done,
22 then, I assume would either be rendered changed or
23 invalid or something.
4 LEE MORRISON: Or meaningless . If there ' s no
25 access , none of this as designed would - - would work.
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 10
1 I 'm sure there ' s a way to do it . I guess a --
2 CHAIRMAN JERKE : Conditional approval .
- 3 LEE MORRISON: Conditional approval , but they
4 still would have to comply with final issue by the
5 Court . I think the bigger problem is even though this
- 6 issue was raised the first time this case came in front
7 of you, it was never taken to court until now. So
8 there ' s a real timing issue for the applicant of this
9 period of uncertainty. But I think we can work around
10 it .
11 It also presents some issues . We have a
_ 12 stipulation in the injunctive case that presumes the
13 process could go forward to resolution and then they' d
14 have a decision from you this spring and know whether
15 they could open or not .
16 CHAIRMAN JERKE : Counselor, to not presuppose
17 anything - - ' cause I have absolutely no idea how I ' ll
18 vote nor any of my colleagues -- but I think it might
19 be a good idea for at least you to be able to prepare,
20 if possible, some language that should this board find
21 for the applicant at some point later on, that we have
22 some kind of conditional language prepared that could
23 at least be offered up to attorneys that are out there
4 for applicants and opponents to be able to consider .
25 And if that ' s something that you could work on as we
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 11
1 kind of work our way through this case .
2 LEE MORRISON: I 'm sure I will have some time
— 3 to do that .
4 CHAIRMAN JERKE : Apparently we will have time
5 to do that , just guessing from the size of the crowd.
— 6 Okay. Further questions for Michelle at this
7 point , or do you want to just go ahead and continue?
8 COMMISSIONER LONG: Mr . Chairman, I had a
— 9 question for Lee .
10 CHAIRMAN JERKE : Go ahead.
11 COMMISSIONER LONG: Wouldn' t this - - a
— 12 decision by this board either way prejudice the Court
13 in some way in what their decision might be or offer
14 some bias or - - to me, it taints the whole issue of
_ 15 what might occur .
16 LEE MORRISON: I - - how do I put this
17 tactfully? I think the Court will rule as they feel is
_ 18 appropriate . It ' s possible that your decision might --
19 I mean, there ' s discussion about what was - - the
- 20 improvements made to the road. It ' s possible that a
21 decision you made has some bearing on how the road was
22 done . That might be evidence .
23 But I don ' t think, you know, the Court is
4 going to say, oh, the commissioners did this ;
25 therefore, I have to rule this way.
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 12
1 COMMISSIONER LONG: I ' m not suggesting it ' s
2 that black and white . To me, it ' s -- this action is
— 3 putting the cart before the horse, so to speak .
4 LEE MORRISON: I think the analogy may be a
5 chicken and an egg . If the - - you know, we can keep
— 6 doing that . And the other difficulty is we ' ve got an
7 injunction that the applicant can ' t open until you make
8 a decision in their favor. And if you don ' t , then they
— 9 don ' t .
10 If you just delay until the Court decides,
11 then they never -- that ' s the other factor of the
_ 12 decision. So I don ' t think the influence on the Court
13 should prevent you from proceeding.
14 I ' m not saying you have to proceed, but I 'm
- 15 saying there ' s a way to do it and make your decision
16 and still let the Court make theirs .
17 CHAIRMAN JERKE : Commissioner Geile?
18 COMMISSIONER GEILE : I guess, Counsel ,
19 here - - I hear what you ' re saying. I concur with
- 20 Commissioner Long. You know, it ' s not as if this is an
_ 21 application that - - a typical application that ' s come
22 before us . It ' s been a land use -- it ' s been in
23 progress without any land use authority for a long
4 time . We 've had to deal with it in a lot of respects .
25 With respect , as you just mentioned, as far as
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 13
1 injunction and other things like that .
2 My concern is , we go ahead and hear it .
- 3 Let ' s say we approve it . Then they go ahead and start
4 doing their business only to have the courts come back
5 with some other determination.
- 6 To me, it puts a cloud over this whole thing
7 that I ' m not sure that I ' m in a position to - - to
8 concur with. I almost think that , like any other case,
9 as applicants come before us, they have all their ducks
10 in order and all the issues resolved, otherwise it ' s
11 resolved -- we have difficulties getting through the
case .
13 I guess what I ' m trying to say is, I would
14 just as soon see all the ducks in order which would be
— 15 a determination by the Court before we proceed with
16 this case . Because I think there ' s too many
17 ramifications if they continue to operate . They go
18 ahead and start operating again, how do you deal with
19 that? All of the sudden the Court rules - - or not
20 rule - - anyway, goes on and on. I think it ' s just so
21 complicated and the pitfalls with this that concerns
22 me .
23 LEE MORRISON: And I understand that . I do
4 think that this is a somewhat -- we 've had some other
25 cases where the right of access at all was contested.
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 14
1 And to say -- I don ' t read this to say they contest
2 that there ' s any access at all . It ' s the manner of the
- 3 access that ' s contested.
4 So it ' s somewhat a different case we had
5 about three years ago where the decision was made that
6 we weren ' t going to approve it because there was no
7 order to access . But , you know, obviously it ' s within
8 your discretion to continue something like this if you
9 feel matters can' t be adequately resolved by your
10 decision.
11 COMMISSIONER GEILE : If I - - concerning the
— last question, how long will it take the proceedings
13 going through court for this case to wind up in court?
14 LEE MORRISON: Well , the -- the current
— 15 simplified civil procedure process theoretically could
16 result in a hearing in three months . That ' s -- usually
17 doesn ' t happen that way, but if everyone pursued this
- 18 and met all their time lines and there wasn ' t extensive
19 discovery, then it could be done in - - and the Court
20 had time to hear the case, we could get there as
- 21 quickly as three months . I would say more likely six
22 to nine months to get a decision from the trial Court .
23 That would still be fairly expeditious .
4 CHAIRMAN JERKE : I guess a point that I would
25 want to make . A reference to what Commissioner Geile
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 15
1 brought up would simply be that the applicant has
2 always been out there at risk in this . He continues to
- 3 be at risk in this . The application ' s at risk. Their
4 business is at risk . They 've always been at risk.
5 That ' s not to prejudice my feelings in any way on this .
6 They know that they 've been in a risky
7 business the entire time with respect to the fact
8 they've not been properly permitted by County
9 government . And, to me, this is simply one additional
10 risk that they, I 'm guessing, will elect to go ahead
11 and pursue .
— 12 If we give them the option of whether or not
13 they want to pursue or not, I 'm quite sure they will
14 want to continue on today and have the case heard.
— 15 Because they simply have been out there . They' ve got
16 the dollars at risk. They' ve got the business at risk.
17 We ' re obviously at the end of winter and
18 entering - - we ' re entering into a period in which sales
19 will increase now.
20 Other comments before we begin on this?
- 21 Commissioner Vaad?
22 COMMISSIONER VAAD : Well , I ' m just looking at
23 condition of approval 1-J, and I ' m wondering if we
4 aren' t already involved in a court procedure because it
25 says , The applicants will address the requirements and
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 16
1 concerns of the requirements of Public Works pertaining
2 to the widening of the road as stated in the referral
- 3 response dated December 3 , 2004 .
4 And I 'm not sure I recall what that was , but
5 I know there was another response a year before that , a
- 6 half year before that on May 21st, 2003 . So could I
7 ask the Public Works to tell us what that response was
8 about or what their request was about on the letter
- 9 dated December 3 , 2004 .
10 DON CARROLL : Be more than happy to do that .
11 Don Carroll , Public Works . As a requirement throughout
— J 2 the hearings , my response to that was road widening .
13 Roadway narrows just past the entrance to TimberRock to
14 a one-way lane crossage drainage pattern. This is a
— 15 safety condition -- or safety concern - - excuse me .
16 There should be a two-way drive extending to
17 the west property line . What I 'm stating here is , it
— 18 narrows to a one-way lane in front of TimberRock.
19 We ' re asking to have it widened to a two-way situation
20 because it is a concern, a safety concern to Public
21 Works .
22 CHAIRMAN JERKE : Continue, please,
23 Commissioner Vaad.
4 COMMISSIONER VAAD : Thank you, Chairman. To
25 my recollection, that was part of the issue, the
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 17
1 improvements in the drainage modifications . And so, in
2 my opinion, it looks like the applicant was responding
- 3 to something that we were requiring them to do, just
4 from brief review that Lee Morrison read us of the
5 legal action - - the proposed legal action or the
6 issues . So we may be in it whether we wanted to be or
7 not , as far as this legal action.
8 So I would be in favor of continuing, if
- 9 that ' s - - but I guess I would also defer to the
10 preferences of the applicant . If they would rather
11 not , I would listen to that .
- 12 CHAIRMAN JERKE : I think the applicants have
13 had an opportunity, obviously, to hear some of this
14 discussion and may or may not temper their opinion of
_ 15 the whole thing as well . This would be little bit out
16 of order, I suppose, to go ahead and bring up the
17 applicants and ask them if they - - with this
- 18 information, if they are sure they want to continued
19 today.
20 I ' m not seeing any negatives from my
21 colleagues or counselor, so I would ask the applicant
22 or representative to approach the mic, and, I guess ,
23 let us know with this information, the debate that
4 you 've heard already regarding the impending Court
25 action, whether or not you would like us to even
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 18
1 proceed today.
2 RICK ZIER: Thank you, Mr . Chairman. I 'm
- 3 Rick Zier, Z I E R, attorney for the applicant , and my
4 offices are at 322 East Oak in Fort Collins .
5 Michelle gave us a copy of this 9 : 30 this
- 6 morning. I don ' t know that it has been served. The
7 date on it is the 9th of this month, so I ' m reading it
8 for the first time as Lee and you are . And the
- 9 plaintiffs ' attorney is here and can explain it further
10 as well . I 've not had a chance to talk with him.
11 My feeling in looking at it is that it is,
— _12 first of all , an issue that has been raised by the
13 neighbors before, the co-owners of the roadway, more
14 than - - well , 18 months ago at the last county
— 15 commission hearing it was raised.
16 And to have the action be filed just on the
17 eve of this hearing and to have this potential
— 18 procedural issue for you is troubling for us because
19 the documents and things that are cited and attached to
20 it are all from years and years ago .
— 21 All this information was available and known
22 and made available to the County by us, as far as we
23 can tell in looking at that as a co-owner, is much
4 better than just a co-easement holder, although the
25 complaint variously calls this a private, joint-access
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 19
1 roadway, and then one point calls it an easement . It
2 is not an easement , clearly. Evidence of that has been
- 3 presented to the board.
4 I ' m very comfortable as a co-owner the rights
5 of all of the owners of this road are greatly enlarged
- 6 over whether or not it is an easement and it suggests ,
7 as the lawsuit does , that we should be bound by
8 historic use is to analogize to adverse easement law.
- 9 I feel like I ' m arguing to the Court .
10 The point of the matter is , as the chairman
11 has said, issues of the road have been presented
— 12 before . They have been discussed. And ultimately if
13 somebody has an issue with that , they have the ability
14 to do it , as they have evidentially now done, to bring
- 15 it to a Court .
16 But what happens here is - - has always been
17 subject to whatever a Court might do about that ; in
- 18 other words, it is at our risk. We have understood
19 that . It is at the risk of anybody who has anything
20 other than adjacent public access . That ' s always the
21 case in these matters .
22 And if the board should go forward as we
- 23 would wish it to today and approve this for the reasons
4 in the USR code that have been complied with and a
25 Court should later modify or limit that , we are subject
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 20
1 to that regardless of the decision of this board. We
2 are clearly subject to that . We would obey and do what
3 is necessary.
4 If the board wants to add a condition that
5 simply acknowledges and recognizes that the board wants
- 6 us to do that , otherwise privileges that we received
7 from you under the USR would be withdrawn and we ' re
8 perfectly happy to do that .
9 What this should not do is cause total
10 inaction by the board on something, the merits of which
11 will be determined by another entity at a much later
— 12 time . And the passage of that time will be greatly
13 egregious to my client , who has followed the rules and
14 is here properly before you having followed the
_ 15 procedures .
16 So we would ask that you vote this up or
17 down - - sounds like the Republican party of judges - -
- 18 up or down on the merits of your USR regulations that
19 we have tried to attend to very closely. And if the
20 Court should somehow affect that, we are subject to
21 that and we recognize that , assuming we were properly
22 served with this .
- 23 So I agree with Lee, that it ' s more likely
4 six to nine months . If we lose a full season, harvest
25 season, you know, whether we end up winning the battle
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 21
in the courts later, we may lose the war if we ' re out
2 of business .
- 3 We did reach stipulation with the Court . We
4 have obeyed that . We have asked for substantial change
5 considerations, been awarded that , thankfully. And now
- 6 we are going forward having proceeded in Windsor, the
7 county planning commission and yourselves . So we would
8 ask that you consider it on the merits and deal with it
- 9 appropriately.
10 But I don ' t want you to be in a position of
11 the Court . That ' s not fair .
— 12 CHAIRMAN JERKE : Any questions for - - just on
13 this issue right now? ' Cause it is quite clear that
14 you do want to continue with the case .
— 15 RICK ZIER: Applicant wants to do that .
16 CHAIRMAN JERKE : Any further discussion on
17 the question as to whether or not we continue on,
18 because it ' s certainly my preference to go ahead and
19 hear the case today. I know that there are pitfalls .
20 Clearly the pitfalls are with the applicant ' s case and
21 stand -- they' re the ones that stand to potentially
22 gain or lose from everything that ' s to be heard today.
23 COMMISSIONER GEILE : I guess, Mr. Chairman,
4 that I respectfully disagree . I feel that this is a
25 significant cloud over us being able to proceed today.
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 22
1 If it ' s the feeling of the board to -- the majority of
2 the feeling of the board would go forward, certainly
- 3 I ' ll consider with an open mind hearing the case .
4 But I feel this is huge problem and needs to
5 be resolved before we can hear the case without any
- 6 interferences from things like this, such as access,
7 which is a major issue in this case .
8 So I guess I would propose that we can ' t go
- 9 until the Court resolves the issue . I would be willing
10 to make that a motion up or down.
11 CHAIRMAN JERKE : I think that ' s the proper
_ 12 way to handle it , so we actually do have deliberation
13 and have it on record and have the vote of whether or
14 not we continue this case or not . I think it would be
15 appropriate to go ahead and give it a date for certain.
16 I don' t like things hanging out there forever, and I
17 don ' t think counsel does either .
_ 18 Esther, can you come up with a date for the
19 purposes of this motion that would put us out for the
20 end of this year.
21 LEE MORRISON: Can I go ahead and suggest
22 something slightly different . That you schedule it
23 for - - essentially a Court will call it a setting - -
_ 4 but you just put on the business agenda to schedule it .
25 ' Cause not knowing when the Court is going resolve it ,
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 23
1 you know, you could get end of the year, that may be
2 too long. You can get three months, may be too short .
— 3 So I suggest you put it on at, like, three
4 months - - three or four months for a scheduling . If
5 there ' s no decision on the horizon, then you schedule
— 6 it out another three or four months . And then once - -
7 so that keeps it on the docket but there ' s not a
8 hearing set until that business day, in which time you
— 9 schedule the actual hearing .
10 COMMISSIONER GEILE : Besides a
11 recommendation. Before I make a motion, I think it ' s
— 12 pretty obvious . But just for the record, this was
13 not -- this action we 've had with the courts that was
14 presented to us this morning before the Court , it was
__ 15 not a part of the planning commission record; is that
16 right?
17 LEE MORRISON: No . It could not - - it ' s
_ 18 dated - -
19 COMMISSIONER GEILE : I just wanted to make
20 sure that ' s in the record.
21 LEE MORRISON: It ' s dated February 9th. Now,
22 the action was not . This issue has come up at every
23 proceeding .
4 COMMISSIONER GEILE : It ' s part of the
25 proceeding but not a matter of their deliberations ; is
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 24
'1 that correct?
2 LEE MORRISON: That is correct .
— 3 COMMISSIONER GEILE : With the recommendation
4 of counsel how we proceed as far as future hearing, I
5 would make a recommendation that we continue at that
— 6 time to allow the courts to resolve the issue of
7 access .
8 COMMISSIONER LONG: Second.
— 9 CHAIRMAN JERKE : Okay. It ' s been moved by
10 Commissioner Geile, seconded by Commissioner Long to
11 continue the case for somewhat of an indeterminate
— 12 period of time, be put upon the docket again when
13 appropriate . If I 'm not stating that correctly, Lee,
14 please let me know.
_ 15 LEE MORRISON: Basically continue it for
16 setting .
17 CHAIRMAN JERKE : Continue it for the purposes
18 of setting . That ' s the lingo I 'm looking for.
19 COMMISSIONER GEILE : That ' s what I said.
20 CHAIRMAN JERKE : I 'm sorry. I can ' t remember
21 everything everyone says .
22 Further discussion on this . I want to hear
23 from colleagues . We need to make a good deliberative
4 action. Go ahead, Commissioner Vaad.
25 COMMISSIONER VAAD : Mr . Chairman, I don ' t
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 25
1 find that I can support the motion. I appreciate and
2 honor the purpose of putting it forward. It ' s a matter
- 3 of - - like I said before in my previous statements, I
4 think we ' re in it since we required the changes . And
5 from just the reading that Lee Morrison has given us
- 6 with the legal paper in front of him, it was because,
7 at least in part or not a major part , a response of
8 what we requested.
9 So whether our decision would be different
10 because we ' re there or we ' re not there, as far as that
11 legal action, I don ' t think is part of the case .
— Obviously there ' s opposition to the approval
13 of this , and so I think we should go ahead and deal
14 with it now and decide on the basis of the facts that
— 15 it would be presented in support of the application
16 whether it was worthy of our allowing the use by
17 special review in agricultural zone and not delay it .
— 18 Then if it would be reversed later, seems
19 like the worst that could happen is they ' d have to say
20 well , you can ' t follow the County' s directions . It has
_ 21 to go back to a narrower road, instead of this improved
22 60-foot template that Public Works has requested.
23 In any case, they would still have access to
4 their business . It might not be adequate to what we
25 would have liked to have seen, but we ' re using a
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 26
1 position of not denying access to any property. So I
2 think it would be consistent for us to make exceptions
- 3 to what we 've requested, the 60-foot access to
4 something less , to make sure they have access to their
5 property.
- 6 CHAIRMAN JERKE : Commissioner Long?
7 COMMISSIONER LONG: Well , I guess I ' d have
8 to - - I guess I see it differently, in fact . That
- 9 might have been things that we requested but none of
10 those were approved.
11 Any actions taken were not based upon our
— 12 recommendation where it was approved and they had to
13 abide by it . They were done, as previously said, at
14 their own risk by recommendations of staff . But I
- 15 don' t see how we ' re brought into it in that fact
16 because it wasn' t ever on an approval basis . So I
17 think that we ' re still separate from that .
_ 18 I do see a cloud, as Commissioner Geile said,
19 that we are separate from that , and I think it would be
20 hard to - - for me to be able to go ahead.
21 I ' m not saying if there ' s a decision of this
22 board, I wouldn ' t be able to do that . But I 'm just
23 basing an argument on continuation. I would - - that ' s
4 why I seconded it .
25 CHAIRMAN JERKE : Okay. Any further
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 27
1 discussion?
2 This is unique to go nearly 40 minutes just
— 3 to figure out if - - whether or not we want to continue
4 or not . I don ' t think we ' ve had that . Hopefully that
5 won ' t be a mar on my chairmanship .
— 6 Esther, would you go ahead and read the role
7 call regarding the question of whether we go ahead and
8 continue or not .
— 9 ESTHER GESICK: Glen Vaad?
10 COMMISSIONER VAAD : No .
11 ESTHER GESICK: Rob Masden?
— 12 COMMISSIONER MASDEN: Yes .
13 ESTHER GESICK: Dave Long?
14 COMMISSIONER LONG: Yes .
— 15 ESTHER GESICK: Mike Geile?
16 COMMISSIONER GEILE : Yes .
17 ESTHER GESICK: Bill Jerke?
18 CHAIRMAN JERKE : No .
19 And that motion passes three to two?
- 20 ESTHER GESICK: Yes .
21 CHAIRMAN JERKE : So with that , I guess at
22 this point we will take this case up at another time .
23 That will be - -
4 LEE MORRISON: The date for setting, did
25 we -- we need to pick a date for that .
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 28
1 CHAIRMAN JERKE : Three months out for
2 setting.
— 3 LEE MORRISON: Probably should incorporate
4 that into the motion.
5 ESTHER GESICK: May 18th.
— 6 LEE MORRISON: May 18th.
7 ESTHER GESICK: At 10 : 00?
8 CHAIRMAN JERKE : Is that appropriate - -
- 9 ESTHER GESICK: 9 : 00 .
10 CHAIRMAN JERKE : -- for the makers and
11 seconders of the motion?
— 12 COMMISSIONER GEILE : Yes .
13 LEE MORRISON: Is that all right to put that
14 on a 9 : 00 as opposed to a 10 : 00?
- 15 ESTHER GESICK: Yeah.
16 LEE MORRISON: Okay. 9 : 00 , May 18th for
17 setting of further hearing or a continuance of the
_ 18 setting date .
19 CHAIRMAN JERKE : Not for the USR. But just
20 to set the date for the future .
_ 21 COMMISSIONER GEILE : We still have the rules
22 of quasi-judicial responsibility, to say whether the --
23 LEE MORRISON: The case is still pending, so
_ 4 ex parte communications is not appropriate .
25
BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
Page 29
1 CHAIRMAN JERKE : Anything else to come before
2 us? We ' re adjourned.
— 3 (Proceedings concluded at 10 : 58 a .m. )
4 * * * * *
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Page 30
1 CERTIFICATE
2 I, KRISTY R. HUGHES, a Shorthand Reporter
3 and a Notary Public of the State of Colorado, appointed
4 to take the WELD COUNTY BOARD OF COMMISSIONERS HEARING,
5 certify that the hearing was taken by me at
6 915 10th Street, Greeley, Colorado, on February 16,
7 2005; that the proceedings were thereafter reduced to
8 typewritten form by means of computer-aided
9 transcription; that the foregoing is an accurate
10 transcript of the proceedings at that time.
11 I further certify that I am not related to
12 any party herein or their counsel and have no interest
13 in the result of this litigation.
14 IN WITNESS WHEREOF, I have hereunto set my
15 hand and affixed my Notarial Seal this 10th day of
16 March, 2005 .
17
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20 Shorthand Reporter .yam ' , &St• :'
21 �//i�i1�AP`��
22 My Commission Expires 07/05/2008
23
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Page 1
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BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
— Page 2
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BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
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BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
— Page 4
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BOARD OF COUNTY COMMISSIONERS HEARING RE: APPLICANT MARCELLE GEUDNER
— Page 5
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BOARD OF COUNTY COMMISSIONERS WORK
SESSION RE: APPLICANT MARCELLE GEUDNER
Docket No. 2005-13, PL 1634
_ February 16, 2005
Taken By: KRISTY R. HUGHES
- Wilson
Fort Collins - Denver- Greeley
Colorado
court reporters, inc. 1-800-84.5-3001
PLEASE ATTACH TO YOUR COPY OF THE TRANSCRIPT OF:
WELD COUNTY BOARD OF COMMISSIONERS HEARING
Re : APPLICANT MARCELLE GEUDNER 0/0 JESS ARAGON
Docket No. : 2005-13 , PL 1684
Date of Hearing: February 16, 2005
-� R7
THIS TRANSCRIPT HAS BEEN FILED ' \-1/ r
XX Signature waived or not required
Reading and signing was not requested by the
deponent
Unsigned; signed signature page and change
sheets, if any, to be filed at trial
Not signed, notice duly given pursuant to the
Rules of Civil Procedure .
Signed by the deponent with no changes
Signed by the deponent with changes, copy of
which is enclosed
Unsigned, with changes, copy of which is
enclosed
FILED WITH: ESTHER ACTING CLERK TO THE BOARD
/(/
DATE FILED: u.� Jt /0l aa)s
RECEIVED BY:
Enclosures : (As above noted)
cc : Esther Gesick, Acting Clerk to the Board
Wilson George Court Reporters, Inc. (800) 845-3001
One Old Town Square, Suite 200 B, Fort Collins, CO 80524 (970) 224-3000
303 East 17th Avenue, Suite 200, Denver, CO 80203 (303) 861-5000
801 8th Street, Suite 220, Greeley, CO 80631 (970) 353-0300
PLEASE ATTACH TO YOUR COPY OF THE TRANSCRIPT OF:
WELD COUNTY BOARD OF COMMISSIONERS WORK SESSION
Re: APPLICATION OF MARCELLE GEUDNER C/O JESS ARAGON
Docket No. : 2005-13 , PL 1684
Date of Work Session: February 16, 2005
THIS TRANSCRIPT HAS BEEN FILED !( }� ! ' •
XX Signature waived or not required
Reading and signing was not requested by the
deponent
Unsigned; signed signature page and change
sheets, if any, to be filed at trial
Not signed, notice duly given pursuant to the
Rules of Civil Procedure.
Signed by the deponent with no changes
Signed by the deponent with changes, copy of
which is enclosed
Unsigned, with changes, copy of which is
enclosed
FILED WITH: ESTHER GESICK, ACTING CLERK TO THE BOARD-iyDATE FILED: /aoW05
RECEIVED BY:
Enclosures : (As above noted)
cc: Esther Gesick, Acting Clerk to the Board
Wilson George Court Reporters, Inc. (800) 845-3001
One Old Town Square, Suite 200 B, Fort Collins, CO 80524 (970) 224-3000
303 East 17th Avenue, Suite 200, Denver, CO 80203 (303) 861-5000
801 8th Street, Suite 220, Greeley, CO 80631 (970) 353-0300
BOARD OF COUNTY COMMISSIONERS
915 10TH STREET
GREELEY, COLORADO 80631
WEDNESDAY, FEBRUARY 16, 2005
WORK SESSION
RE: APPLICANT MARCELLE GEUDNER, c/o JESS ARAGON
DOCKET NO. : 2005-13 , PL 1634
fr,
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 2
IN ATTENDANCE
COMMISSIONERS
Bill Jerke
Mike Geile
Dave Long
Rob Masden
Glenn Vaad
STAFF
Michelle Martin, Planning Staff
Char Davis , Health Staff
Don Carroll , Public Works
Lee Morrison, Esq. , Assistant County Attorney
Esther Gesick, Acting Clerk to the Board
Bethany Salzman, Zoning Compliance
For the Applicant :
RICK ZIER, ESQ .
Attorney at Law
_ 322 East Oak Street
Fort Collins, Colorado 80524
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 3
1 PROCEEDINGS
2 (Proceedings began at 1 : 35 p .m. )
3 CHAIRMAN JERKE : We ' ll start the work
4 session. This is a relatively informal hearing .
5 Generally we discuss amongst ourselves , the
- 6 commissioners as well as staff, kind of general
7 indications on how we want to go on a given issue or
8 subject .
- 9 Typically they' re really held with respect to
10 County business . That ' s generally what we ' re talking
11 about . And so we need to understand and it needs to be
— 12 very clear for the record that we ' re not determining
13 how we ' re going to go on this land use application,
14 because that ' s already been determined that we ' re going
— 15 to continue that and have continued it to a point three
16 months out .
17 What we are going to talk about - - and Lee
— 18 can go ahead and state it again in a more official
19 way - - but kind of the question as to whether or not we
20 instruct Lee to go ahead and have negotiations with the
— 21 applicant as to whether or not they will be able to go
22 ahead and continue with business, and under what
23 circumstances that business would be allowed to go
:4 ahead and continue during the interim period, in
25 between today and when this thing is finally ever
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 4
, l decided by us , in a formal USR hearing. And that
2 clearly will be months from now, at best .
- 3 And so with that , we 've also passed out to
4 the five members of the board the stipulation, the
5 agreement that we have with the applicants . And really
6 the point of interest for us is just one paragraph, and
7 I ' ll read it into the record quickly. No . 5 is ,
8 Business operations may resume on the site only if and
9 when the respondents were granted approval and fully
10 complete the use by special review process from Weld
11 County or are granted approval and fully complete the
_12 annexation and land use process for the Town of
13 Windsor.
14 And in a situation like this, there ' s a lot
— 15 of people that clearly are interested in this
16 particular case . This is not one of those venues in
17 which we have public testimony.
— 18 We think, though, that it would be helpful to
19 us to be able to hear from the applicant or the
20 applicant ' s attorney in this case . And then, since
- 21 there are a number of people who are opposed to what
22 the application was all about , also hear from their
23 attorney. And those are the only two people that we ' re
24 going to hear from that are out of the audience . The
25 rest will be reserved to - - to staff .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 5
1 And, again, it ' s just a discussion on the one
2 issue of whether or not to allow applicant to continue
3 operations , and if so, what level to be able to do it,
4 instruct staff to go ahead and work with them during
5 this interim period.
6 I guess I bring it up to my colleagues to see
7 if they' ve got questions or input in the process at
8 this point . Dave?
9 COMMISSIONER LONG: I do. Thank you,
10 Mr . Chairman. Just a question. By this, this is a
11 Court order. So do we have any discretion within this
— 12 to make any change or to recommend a change? Wouldn' t
13 it have to go back before the Court?
14 LEE MORRISON: Any change would have to go
15 back before the Court , but this order was arrived at by
16 agreement between TimberRock and -- the property owners
17 and the operators of TimberRock on one side and the
18 County on the other . So a Court would normally accept
19 a change unless they found it somehow didn ' t - - you
20 know, wasn ' t arrived at in a fair fashion.
21 So, yes , it would require the Court to accept
22 a modification. But if the two sides agreed to the
23 modification, it ' s unlikely that the Court would not
4 amend its order .
25 COMMISSIONER LONG: Okay.
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 6
1 COMMISSIONER GEILE : Lee, you were looking at
2 the litigation that had been filed. That was filed on
- 3 behalf of Tom Hellerich, the attorney of record. Who
4 was it filed on behalf of and when was it filed?
5 LEE MORRISON: Well , it was filed, I believe,
6 the 9th of this month. The defendants are the Cozy Cow
7 Dairy, which is immediately to the east of the
8 applicants .
— 9 COMMISSIONER GEILE : And defendants .
10 LEE MORRISON: The defendants . Those being
11 sued are Cozy Cow and the applicant and the name - - the
— 12 named defendant is Geudner because they ' re the property
13 owner. And then everyone else that uses the road
14 are -- the private drive are named as plaintiffs .
— 15 COMMISSIONER GEILE : How many are those? How
16 many are there? So the defendant is Cozy Cow and the
17 applicant , and the litigation was filed on behalf of
_ 18 how many?
19 LEE MORRISON: Well , there ' s six named
20 parties . I believe that represents four properties .
— 21 COMMISSIONER GEILE : All those properties are
22 directly associated with the easement or whatever it
23 is, the access or the road?
:4 LEE MORRISON: It ' s my understanding that - -
_
25 that they are - - all the parties are co-owners of this
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 7
strip of land.
2 COMMISSIONER GEILE : So they do, in fact ,
-- 3 have interest? All six of them have interest?
4 LEE MORRISON: As far as I know.
5 CHAIRMAN JERKE : Both defendants and
— 6 plaintiffs have interest , real feasible interest in the
7 road?
8 LEE MORRISON: Yeah. Well , that ' s how I read
— 9 that document , that they have a joint tenancy in some
10 form.
11 COMMISSIONER GEILE : Thank you.
— 12 CHAIRMAN JERKE : Other questions for Lee?
13 Lee, did you have an actual statement or anything that
14 you wanted to - -
_ 15 LEE MORRISON: I think you fairly summarized
16 this . It ' s a - - the stipulation was reached last
17 summer in July when there was a hearing scheduled, and
- 18 the stipulation had other terms which basically allowed
19 a ramping down of activities .
- 20 The - - the action was brought because there
21 were activities going on that had not ceased after the
22 denial of a permit . There had not been any further
- 23 proceedings in that case . You know, we collected
?4 information. There ' s been some back-and-forth
25 assertions, but we 've not been back in front of the
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 8
1 judge .
2 And the request - - given what happened this
- 3 morning, which is there ' s no possibility now of you
4 making a decision prior to commencement of the spring
5 landscaping season, then the request was made by
6 Mr . Zier that you direct this office to make some
7 modification in that stipulated order that would allow
8 some level of operation.
- 9 CHAIRMAN JERKE : Okay. And the question, of
10 course - - just to stay honed in on it -- is what
11 direction this board gives Lee when we come to a
— 12 conclusion here in a while .
13 LEE MORRISON: I guess the only - - the other
14 thing I would say -- and if planning wants to weigh in,
- 15 they certainly should -- typically when someone is
16 alleged to be in violation of the zoning code but is
17 taking steps to correct it , including making
_ 18 appropriate applications , this board does not insist
19 that they cease before they apply.
20 This case is somewhat different in that they
21 went through the process once and were denied, but they
22 have since obtained determination that they are
23 presenting a substantially different proposal and gone
4 through all those steps in an expeditious fashion to
25 get the matter back before you .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 9
1 And so that ' s - - that ' s really that -- it is
2 a little bit different because they had already gone
— 3 through the process once, been denied, continued to
4 operate until we got this order.
5 CHAIRMAN JERKE : Any other questions for Lee
— 6 at the moment?
7 Let me ask if there ' s anything pertinent to
8 come from staff , planning, road/bridge, again, related
— 9 only to this question. Make sure you don ' t have
10 anything new for us .
11 At this point , then, I think it would be
_. 12 appropriate to ask the applicant ' s attorney if he ' d
13 like to go ahead and present , I guess, what the
14 applicant would like to do at this point , assuming you
- 15 understand everything on where we ' re at . Very well .
16 RICK ZIER: I do . I 'm Rick Zier, again, for
17 the applicant . Before I say much to the issues this
18 afternoon, we might want to clear up one thing .
19 And that is we believe that Mr. Hellerich has
- 20 a conflict of interest both in the litigation and I
21 think on anything against my clients having to do with
22 this because of their having gone to see him almost
23 exactly a year ago this month. And they were trying to
`4 obtain counsel to prepare the substantial change
25 application.
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1 They had gone to see Jacque Johnson, who
2 could not handle it, and she referred them to Tom. She
- 3 called Tom on their behalf and called them back and
4 said that she had done that and they should call Tom.
5 They did call Tom. Made an appointment to see him in
- 6 his office here in Greeley. They did go to see him.
7 They met for about an hour. Discussed - - this was
8 before this litigation, obviously. Discussed the
- 9 details of the USR .
10 Gave them the names of the objecting
11 neighbors , who are now his clients , and he checked
— 12 those for conflicts of interest . Proposed a fee, an
13 attorney/client fee agreement to them, which they
14 picked up later at his office, but then declined for
— 15 other reasons to do that . And that was the end of it .
16 He never billed them. They didn ' t go forward
17 from that point , but they did share confidences with
— 18 him. And so we had a problem with that .
19 I mentioned to Tom this morning . Since then
20 we ' ve gotten copies of daytimers confirming the dates
_ 21 of those calls and contacts , and I 've just been
22 informed by him that he does intend to withdraw. If
23 that ' s the case, I would have a continuing objection to
:4 him.
25 And, again, I don ' t want to throw a monkey
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Page 11
wrench but I do not think it ' s appropriate that he had
2 confidential conversations with Jess Aragon, who is now
- 3 on the title to the property as a co-owner, and is
4 clearly the applicant here - - with that occurring.
5 And I have no objection in his absence to
- 6 having his clients speak, if that ' s what you would wish
7 in the alternative . I don' t mean to take away the
8 podium from them, but I do have an issue with that .
9 And I will pursue litigation should he not withdraw.
10 CHAIRMAN JERKE : You know, it ' s an
11 interesting thing . When you run for county
— 12 commissioner, this isn ' t what you anticipate . We don' t
13 really think that you ' re going to be called upon to
14 become some kind of judge . We don' t wear a black robe,
— 15 didn ' t go to law school . This is really challenging
16 stuff . And it ' s really interesting, I guess , you know,
17 just from my perspective .
18 Perhaps , Tom, if you want to come up in a
19 very limited -- incidentally, too, we want to get out
20 of here in an hour . We all have other appointments at
21 3 : 00 , so if you want to just briefly address that part
22 of the issue for the moment , please . That would be
- 23 fine .
A TOM HELLERICH: Thank you very much. My name
25 is Tom Hellerich. I 'm with the firm of Winters ,
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Page 12
Hellerich and Hughes . And I did talk with Mr. Zier
2 following the hearing this morning . Based upon their
3 representation that there was a conflict , I did go back
4 to my office and check it out . I have no records at
5 all relating to any meeting with - - with - - can ' t
6 remember your name - - Jess at all .
7 I did check them on my daytimer for a year
8 ago and his name does appear there . So I think I do
9 have a conflict in that respect .
10 When we filed the lawsuit , that was simply to
11 determine the use of the road. It had nothing to do
— 12 with this application. Period. And Jess was not an
13 owner . Now I guess they' re saying he has subsequently
14 become an owner .
_ 15 When we checked the County records
16 immediately preceding the filing of that lawsuit last
17 week, County records didn ' t show him as an owner
_ 18 either . I 'm not saying that he isn' t . If he is , we
19 certainly weren' t aware of it at the time that it was
20 filed so I had no way to correlate that Jess was anyway
21 involved with that . It was Ms . Geudner.
22 And Ms . Geudner, I couldn' t tell you who she
23 is today. But I think there ' s an appearance of a
4 potential conflict , and I 'm not going to fight with
25 that by any means . Because I think our professional
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1 code of conduct says , if there ' s an appearance, you
2 withdraw. So I am going to have to withdraw from the
— 3 lawsuit .
4 But I was here today simply to tell you about
5 the lawsuit , not to talk about the USR application
— 6 alone . I was simply here to talk about the lawsuit and
7 answer any questions you may have about the issues
8 involving that road, et cetera .
— 9 CHAIRMAN JERKE : Okay.
10 TOM HELLERICH: That was all I was here for
11 in the limited capacity.
— 12 CHAIRMAN JERKE : In the interest of fairness,
±3 then, I think that what we probably want to do is allow
14 for one opponent to be able to go ahead and speak
— 15 following when Rick speaks for the applicant .
16 And hopefully you ' ll look amongst yourselves ,
17 figure out who would be the best one to speak for the
- 18 group of you and go ahead and treat it that way. Just
19 to treat it as fairly as we can. And then, Tom,
- 20 obviously, you ' re withdrawing from this situation.
21 TOM HELLERICH: I 'm out of this .
22 CHAIRMAN JERKE : And going back to your law
— 23 office, I guess .
"4 TOM HELLERICH : I ' m going back.
25 COMMISSIONER LONG: Thank you.
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CHAIRMAN JERKE : Thank you for your fairness
2 of this . We appreciate that too.
�- 3 And, Rick, where we left off -- I know you
4 guys are trading messages here or whatever - - but ,
5 Rick, where we left off was allowing you to go ahead
- 6 and kind of present what you would like this board to
7 potentially do for this interim period for your
8 client ' s best interest .
9 RICK ZIER : Okay. First of all , I want to
10 say I think this is true, everything that Tom told me .
11 I have no reason to suspect otherwise . We would ask
- 12 that on a reasonable basis that the business be allowed
13 to operate .
14 It is a seasonal business . We don ' t know the
— 15 timing of this . It is not something that we or the
16 County can control or obviously we would expedite it as
17 much as possible .
- 18 But having now withdrawal of counsel , maybe
19 there ' s a delay in the lawsuit . Those kinds of things
20 do happen. So it ' s kind of a no-win thing . It ' s just
21 something we 've been confronted with, as you have, for
22 the first time today, and we have been trying to weigh
23 all of this .
4 But since the determination has been made to
25 await the Court ' s decision on this, although I didn ' t
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Page 15
1 directly negotiate the stipulation of the Court order
2 with Mr . Morrison, I 'm aware of it , and I ' m certainly
-- 3 aware of it now. It was by agreement . We would ask
4 that by agreement we negotiate something that is
5 reasonable .
6 I think the reason, from my understanding, of
7 why the County was agreeable to it at the time was ,
8 number one, it ' s a seasonal business . We knew that for
- 9 several months in the winter it would be closed
10 completely, no matter what . So that was a blessing .
11 And also it was tapering down. The spring is the
— 12 heavier time of year. Obviously, that ' s where we ' re
13 headed into now.
14 But at the point the stipulation was entered
— 15 into the -- the lighter time of the year was coming and
16 the County was more comfortable with that .
17 So that being the case, we had hoped that if
- 18 we got after it with a substantial change application,
19 for that to be approved, tried to get an expedited
20 County procedure to get a reading from you finally
21 before this spring season would begin. And the County
22 and we worked pretty hard to do that, and obviously
23 we ' re appreciative of the staff that did get us to this
4 point . Now, that ' s a little academic .
25 We ' re faced with something that we didn ' t
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Page 16
1 really anticipate last summer because we didn ' t think
2 that we ' d have to deal with this now. We have been
- 3 closed since October . We have remained in compliance
4 with the Court order . We have tried to follow all of
5 the rules .
- 6 The reason that this happened, that they
7 opened without the attorney -- I mean, they were not
8 ignoring this . They were turned down with a three to
9 two vote in October of 2003 , as you know. They would
10 have been closed that winter .
11 They tried to get an attorney through that
— 12 winter. I ' ve seen the daytimers just today that
13 mentioned seven, eight, nine different attorneys that
14 they talked to . Tom was just one of many, including
— 15 some in Larimer County, like me .
16 I was referred by two other Larimer County
17 attorneys who were -- who were consulted and they were
18 trying to do that . In fact, I was consulted twice . I
19 can tell you that I was called in February last year by
20 them and I could not take it because of the crest of
21 other business . They called me again in May desperate
22 and I took it then.
- 23 By then the lawsuit had been filed. And they
4 were already represented in the lawsuit by a non-land
25 use attorney, but they were trying to get a land use
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 17
1 attorney all that time to file a substantial change
2 application because of two things . Right after their
— 3 denial , the Martin Lind plans for just south of them
4 came to the floor and felt that was a great difference .
5 And number two, their application itself was changed.
— 6 So I talked to Mr . Morrison. He advised me
7 of your substantial change procedure .
8 CHAIRMAN JERKE : You know, Rick, let me stop
— 9 you. You ' re doing a great rehearsal of what we 've been
10 through, what you ' ve been through. What I really need
11 to hear is what your client , you know, wants from this
— 12 board. Obviously they' d love to be open 24/7 and with,
13 you know, no-holds-barred.
14 But can you give us some sense of what kinds
— 15 of things they might be able to work with and live with
16 in the sense of restrictions that would mitigate to
17 neighbors that might persuade me and others that we
— 18 should even grant anything . So that ' s what I want you
19 to - -
20 RICK ZIER: Yes , I can. I was trying to lay
21 the background for what I 'm going to say.
22 CHAIRMAN JERKE : Okay.
23 RICK ZIER: Simply, that it ' s our
4 understanding that in other instances , frequently with
25 landscape material yards, when they ' ve been in
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 18
1 violation, that they have gone into the process and
2 followed rules and so forth, they have been able to
- 3 operate in some capacity. Sometimes limited. I don' t
4 know the nature of all of those, and I ' m sure everyone
5 is a little different .
- 6 Because I think that the County wanted it to
7 be more limited than if it was wide-open, and that was
8 one of the reasons you agreed to the stipulation at the
- 9 time, given that we had by then filed this substantial
10 change application. We would offer some kind of
11 reasonable limit on days of operation, hours of
— 12 operation, whatever you believe is reasonable .
13 The county planning commission a couple of
14 weeks ago had a fairly extensive discussion of hours ,
— 15 and there were a couple of motions made that either
16 died for lack of a second or didn ' t pass on limited
17 amount of hours of operation.
- 18 They ultimately granted kind of a wide-open
19 thing. But we ' d understand if it was 9 : 00 to 5 : 00 or
- 20 10 : 00 to 4 : 00 or something like that . If you want to
21 limit Sundays more, we ' re amenable to anything .
22 But we have followed all the rules and we
23 don ' t know how long this is going to take . And if it
4 turns out, as I suspect , that this is without merit , a
25 Court will find, as all the case law in Colorado says ,
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 19
1 that co-joint or tenants in common on a road, as long
2 as they don' t impair the others ' use of road for the
- 3 access needs that they require and as long as they
4 agree to maintain their fair share of the road -- which
5 in this case they have - - they have agreed to do much
6 more than that and not asking for contributions of the
7 others - - that it will be found without merit .
8 That we will be back here with that victory
- 9 in our pocket in September or November or next January.
10 But this business may be under if we cannot , under some
11 reasonable way, continue to be open and in a way that
— 12 is reasonable .
13 We have improved the road. We have widened
14 it . We have made it more safe . We have improved the
_ 15 drainage . If during that time, Don ' s department feels
16 that it would be safer to widen the road more, we ' ll do
17 that on a temporary basis .
18 We understand all of this is at our risk . We
19 understand that it is of our making. We understood
- 20 that from the beginning . But we also hope that we
21 impress with the good faith that was shown in the last
22 year in attending to all of the County ' s requirements
23 and trying to look out for the reasonable concerns of
4 the neighbors , who we take very seriously.
25 So we ' re open to a limitation on hours and
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 20
1 days . If there are other limits that you want to
2 discuss, we ' re amenable to them, reasonably. So, yes .
- 3 Whatever you think in terms of hours is fine . We just
4 request that we be able to survive this time .
5 Because to hear about this the morning of the
6 final date of the hearing in this matter, to be tossed
7 this curve, seems a little untoward and not fair . And
8 you have granted it in other cases where people have
- 9 been -- I think thumbed their nose much more than this
10 applicant has .
11 CHAIRMAN JERKE : Okay. Let ' s open it up to
- 12 questions for Rick. And start off, I guess , hours and
13 days . It occurs that you ' d be amenable to virtually
14 anything that is common-sensicle, that that makes
- 15 sense .
16 RICK ZIER : Absolutely.
17 CHAIRMAN JERKE : So if this board would come
— 18 to say, never on a Sunday, for example, that would be a
19 kind of thing that you would be open to, obviously.
20 I 'm sure that he ' d be open to never on a recognized
21 holiday, for example, those types of things . You won' t
22 want to be open on the 4th of July and such.
23 A big question, I think, remains in my mind
4 regarding retail visitors . Over the wintertime I don' t
25 think you had any retail visitors . How important is it
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 21
1 to have retail visitors there? Are there limitations
2 on them? What do you do with retail visitors? And
3 that ' s a question I want to hear addressed still .
4 And then finally, because we have people with
5 health concerns in the area with respect to dust , kind
6 of a voluntary program would be enforced for dust
7 abatement on that - - on the road in question, the
8 common road.
- 9 RICK ZIER : Sure .
10 CHAIRMAN JERKE : That appears to be something
11 that occurs to me very necessary, so that has to be
— done potentially quarterly or, you know, every other
13 month or something . Something that really keeps that
14 in good shape, because of the fact , if there winds up
— 15 to be a lot of retail people, you definitely want to go
16 ahead and treat that road because there is health
17 concerns with respect to dust in the area . So those
— 18 are some items that I want you to address now if you
19 could.
20 JESS ARAGON: Jess Aragon, TimberRock. I 'm
21 willing to do what ' s necessary. As far as the dust
22 abatement , I ' d like to adhere to what we had agreed to .
23 And I think if you want to use the bridge and Public
4 Works as kind of a sounding board on this or if you
25 want to police the activity of the level of - - of mag
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 22
1 chloride applications , I would be amenable to that .
2 That hours of operation, Monday through
- 3 Saturday would be okay. 9 : 00 to 5 : 00 operation hours .
4 In terms of retail traffic , that is a
5 component of our business . It is something that we do
-- 6 need and require . We have mitigated a lot of the
7 issues on the road with respect to traffic signs and
8 that sort of thing. And I 'm willing to work with the
— 9 County in any way I can to survive and go through this
10 process , and essentially, hopefully come back in and
11 have a good proposal and be a viable component of the
— 12 community.
13 CHAIRMAN JERKE : I don ' t have any clue on how
14 to limit retail traffic . That ' s something that
15 everybody wants a lot of if they' re in the retail
16 business .
17 JESS ARAGON: I think it ' s important to point
— 18 out that they' re a very small - - we ' re a small
19 business .
20 CHAIRMAN JERKE : Can be self-limiting by
- 21 virtue of location.
22 JESS ARAGON: Right .
23 CHAIRMAN JERKE : And numbers of people that
4 really come in.
25 JESS ARAGON: And we were prepared to do a
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Page 23
1 traffic study that showed our impacts , which is
2 relatively small in nature compared to other similar
- 3 business operations, and that would have been part of
4 the USR, of course .
5 But I do want to say that our business
— 6 operation is smaller in scope compared to other
7 companies that perform this type of service for the
8 public .
- 9 CHAIRMAN JERKE : Okay. I want to open it up
10 to my colleagues for questions . Mike?
11 COMMISSIONER GEILE : I have some . Thank you.
— 12 I want to make sure of a couple of things . First of
13 all , the injunction said that you would not do any
14 business on the site on or after October 15th, ' 04 .
15 Has there been anything done at the site?
16 JESS ARAGON: No, sir.
17 COMMISSIONER GEILE : Has there been anything
18 hauled on the site? Any customers coming to the site?
19 Retail business coming to the site?
20 JESS ARAGON: Sir, there has not been any
21 retail business . And we closed our doors October 15th;
22 however, I have received phone calls . And because I
23 have a truck and have suppliers that are out of my
4 particular business site, I 'm able to go to my vendors
25 with my truck, get a load and haul it to Greeley, say,
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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1 for example, by the load.
2 COMMISSIONER GEILE : So you have been doing
— 3 business?
4 JESS ARAGON: Not off the site, no, sir .
5 CHAIRMAN JERKE : On the site?
— 6 JESS ARAGON: No, sir . I get the phone calls
7 forwarded to my cell phone, which I live in Fort
8 Collins . And I can take the call right in Fort
— 9 Collins, and I have managed to do a couple of loads in
10 that manner.
11 But being that this is a seasonal business,
there hasn ' t been any activity. And I made the
13 commitment to shut the business down October 15th,
14 which I did. And I have continued to have it closed,
_ 15 and we have not moved any materials in or out of the
16 site since October 15th.
17 COMMISSIONER GEILE : Reason I bring up the
_ 18 questions , Mr . Aragon, is because history has it , seems
19 like every time we 've had you in front of us something
20 has happened at the site . It was almost as if you
21 re-missed any directions we gave you as far as don ' t do
22 this anymore, don ' t do this anymore . More or less you
— 23 say that you ' re going to do whatever you want , how you
4 want , when you want it .
25 And I 'm trying to get a feeling in my mind
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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1 that -- a confidence in view of the history we ' ve had
2 with you concerning this operation.
- 3 JESS ARAGON: Yes .
4 COMMISSIONER GEILE : And if we were to agree
5 on anything today, number one, I think it would have to
- 6 be very -- I don ' t know what the word to use - - but it
7 would have to be some kind of a business plan that
8 would be less than what you ' re proposing right now. It
9 would have to be really a moderate use of the site for
10 the business purposes that you 've established.
11 On top of that , we ' d have to come up with a
_ 12 plan or a process to monitor what you ' re doing very
13 carefully to make sure you don ' t go outside of those
14 parameters .
15 The other question I had - - this is getting a
16 little bit out of - - outside of this , but , as we were
17 discussing the proceedings this morning, it ' s obvious
18 that all of a sudden, you and your - - you, as the
19 applicant and now as the defendant , had received an
- 20 application that was made to the courts . And that you
21 were, in essence, going to be proceeding to the courts
22 to resolve that issue .
- 23 And right away I - - I would assume that your
4 counsel would be advising you that that might be
25 harmful to you and that maybe you might have some legal
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Page 26
1 opportunities which would, in essence, cause exposure
2 to those who filed the litigation.
3 I ' m trying to think through this whole thing
4 so that we don ' t end up with more clouds on this when
5 it eventually comes back to us . All of a sudden we
6 have another series of lawsuits . You suing them; them
7 suing you.
8 We get down to the final hearing of this and
9 it ' s very, very - - well , I ' ll say it again. It ' s a
10 very, very clouded application that we have .
11 I ' m not asking you to make a commitment that
you ' re not going to file any litigation against those
13 who filed this with the courts, but I guess I would
14 like some kind of a determination from you as to what
_ 15 your next step might be . Counsel is going to advise me
16 that it ' s probably none of our business .
17 But , you know, if I 'm looking at trying to
18 make an arrangement that would allow you to stay in
19 business , I guess I would like to know how this thing
20 is going to sort out . I don' t want to see another
21 litigation, after another litigation, after another
22 litigation.
23 JESS ARAGON: May I say something in my
4 defense?
25 COMMISSIONER GEILE : Sure .
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Page 27
1 JESS ARAGON: With respect to those
2 allegations, those are coming directly from the people
- 3 that are in opposition filing the lawsuit against me .
4 I don' t think they' re in an unbiased position to make
5 those allegations .
- 6 COMMISSIONER GEILE : That ' s all I have .
7 CHAIRMAN JERKE : Any other questions? Go
8 ahead, Rick.
- 9 RICK ZIER : Commissioner Geile, I would input
10 also . We just saw this today, as you did for the first
11 time . I can tell you that there will be an answer
— 12 filed that will deny that there is any merit to this
13 suggestion.
14 There ' s twin suggestions in the lawsuit . One
_ 15 is that the easement , as it is called incorrectly,
16 simply be used for the historic uses of accessing the
- 17 residences that are there and presumably maybe one more
18 other residence . Secondly, that it is without merit ,
19 that what TimberRock has done to the road has not
20 improved it and has caused a safety issue or other
21 impassability issues . That ' s clearly not the case and
22 that ' s easily shown. That will be the main defense .
23 If there is a counterclaim, my - - my
4 suggestion is that under the law of tenants in common
25 in Colorado, if one tenant in common improves a
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 28
1 commonly owned way, he or she has the right to seek
2 contributions from the others for their fair share of
3 that, if the Court has determined benefitted by that .
4 Now, the applicant has not sought to do that and does
5 not seek to do that .
- 6 If she is sued and if they are damaged and
7 slowed down and made to defend themselves in a suit
8 that could have been filed 18 months ago and should
- 9 have been, that may be part of the issue . Now, I don ' t
10 know what more you have in mind. But just from a real
11 estate and land use thing, that ' s all I can say.
— 12 But , you know, Mrs . Geudner just was served
13 outside the door now on behalf of the attorney who has
14 now withdrawn. And she ' s not had a chance to even
— 15 review it in detail or advise me or anybody else on it .
16 So, I mean, did you have something in mind that you
17 thought we had up our sleeve?
- 18 COMMISSIONER GEILE : I think, Counsel , you ' re
19 hitting the bottom which, in essence, we come up with a
20 modified agreement for an operating plan. It ' s not
- 21 exactly what you want to accomplish. So, in essence,
22 what you ' re going to do is file some kind of litigation
23 to seek damages for that increment from what we
4 approved and what you feel you could have operated the
25 business .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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"1 RICK ZIER: No . That ' s not what I said. And
2 I don ' t know that the applicant is entitled to that . I
— 3 do feel as if we ' re arguing to a Court . What I said
4 was, there may be a right to seek contribution for the
5 value of improvements to the road that have been done
— 6 voluntarily so far without any requirement to do that .
7 And that would be her choice, that any
8 attorney would have to advise her of, whether she would
— 9 choose to do that or not . That ' s the only logical
10 counterclaim that I can think of . I don ' t know.
11 Unless you have something else in mind.
— 12 COMMISSIONER GEILE : Nothing I want to talk
13 about .
14 RICK ZIER : And to me, that ' s not the issue
— 15 today. That ' s a separate something that ' s going to
16 have to go on in the courts . It ' s going to have to
17 take its own course, and she ' ll have to be advised. I
- 18 don ' t know that I ' ll be the one doing that .
19 CHAIRMAN JERKE : Well , those things , again,
— 20 are things that are not a question for us to answer in
21 the next 45 minutes .
22 RICK ZIER: Sure, sure . Suffice it to say
23 that we - - we are sorry that we ' re involved in this
4 court suit . We ' re sorry it has slowed down this
25 process . We want to do what we can to stay alive . I
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 30
l think that the lawsuit does not have merit . I look
2 forward to defending it . I 'm sorry it ' s put a monkey
— 3 wrench into this procedure .
4 And we simply ask to be able to survive
5 reasonably until then, and we ' ll come back as quickly
— 6 as we can with whatever limits the Court or without
7 whatever limits the Court has imposed and come back
8 with that as a known quantity at that time .
— 9 CHAIRMAN JERKE : Okay. Do we have any more
10 questions for the applicant at this point?
11 RICK ZIER: It ' s certainly not in our
— 12 interest to slow down the court proceedings , as you can
13 appreciate .
14 CHAIRMAN JERKE : Okay. Thank you.
- 15 RICK ZIER : Thank you.
16 CHAIRMAN JERKE : Go ahead, Mr. Aragon.
17 JESS ARAGON: I also want to add that nor is
- 18 it in my interest -- our interest to violate any
19 agreements that we have set forth with this governing
20 body as well . I know that that is a - - that is going
21 to have bearing, have weight on your ultimate decision
22 as to whether or not we proceed or not . So I ' m not
23 going to sacrifice a small gain for -- and lose sight
4 of the big picture later on that could be - -
25 CHAIRMAN JERKE : Okay. Any response to that?
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1 Thank you .
2 What I ' d like to do is recognize one person
— 3 from the opponents ' side, and hopefully you ' ve had a
4 chance to whisper amongst yourselves . If you want
5 somebody to come up in the absence of Mr . Hellerich,
— 6 one person is all we ' re going to accept . So if you
7 want to come up and state your name and proceed.
8 GARY WEINMEISTER : I ' m Gary Weinmeister . I
— 9 live at 28649 Weld County Road 17 , Windsor .
10 And, yeah. We do have a few notes here .
11 They' re kind of scrambled. Hopefully I can get through
— 12 all of them and make sense of this .
13 First of all , I would like to say that we
14 were caught offguard today too by the conflict of
15 interest . Because that was one of the first things
16 that the attorneys checked on when we asked them to
17 review the case .
18 And I think the fact that Tom didn ' t have
19 anything in his files but he did find something in his
- 20 daytimer indicates that I think he did due diligence to
21 determine that there was no conflict of interest .
22 Apparently it was overlooked.
- 23 The other thing I ' d like to say is , just as
the applicants have had a difficult time finding an
25 attorney to file a substantial change request , we have
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"1 also gone through three attorneys , and now with today' s
2 proceedings we will move on to a fourth attorney. That
3 is why this suit was not filed earlier .
4 Another reason it wasn ' t filed earlier,
5 because we had conflicting advice as far as when to
- 6 file that . One of the attorneys we talked to said we
7 should wait until after the commissioners make a final
8 decision on this USR, and then if it doesn ' t go in our
- 9 favor, in the opposition ' s favor, then we should look
10 at filing the suit . That was one side of the advice we
11 received. And then, of course, there was the other
— 12 side that said, there is no merit in waiting . Get it
13 done .
14 So we actually hired Mr . Hellerich in
- 15 December of this year, and as soon as we got him hired
16 and started proceeding with this, we did try to make
17 haste as far as getting this lawsuit filed.
18 In addition to that, it ' s unfortunate that
19 the defendants and the applicants were not aware of the
- 20 suit until today. There were several attempts to serve
_ 21 this - - the papers on the defendant and there was
22 decided resistence as far as that serving .
- 23 CHAIRMAN JERKE : Gary, what I ' m really
4 searching for here is what advice you ' d like to give to
25 this board with respect to whether or not we allow them
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Page 33
1 to stay in business and if so, under what conditions
2 during this interim period, between today and when the
3 board finally decides whether or not they've got a
4 valid USR .
5 So I ' d really like comment on a number of
6 things , like hours and days and holidays and retail
7 visitors and mag chloride and other things , whatever
8 else you can come up with to mitigate and whether that
9 would ever be enough mitigation. Those are the kinds
10 of things that I want to spend time on to help us make
11 a decision to go ahead and give our attorney the
— 12 ability to go ahead and negotiate up or down on this
13 thing at this point .
14 GARY WEINMEISTER : Some of the things that
_ 15 I 've jotted down was that the applicant has been
16 operating for two seasons now. And we have, as a
17 result of that , been the recipients of the traffic, the
18 dust , the noise, the impact of this operation.
19 And it has been quite nice since the
20 operation has been shut down as far as that impact is
21 not there at this time . So we would like to see - - I
22 guess we really didn ' t discuss this specifically, but
23 my thoughts are that we would like to see this
4 injunction upheld. Just because of the impact on the
25 neighborhood, the impact that we all have been enduring
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 34
1 for two seasons .
2 Hours of operation. I guess, you know, a lot
- 3 of these things I have concerns about because there
4 have been posted hours of operation, there have been
5 agreed to hours of operation, but yet there is nothing
- 6 to monitor or enforce those hours of operation. So we
7 get traffic in there seven days a week, and we also get
8 traffic in there, you know, after 6 : 00 , 7 : 00 , 8 : 00 at
9 night . Some of these things we were going to point out
10 in our arguments today before the hearing, and so it ' s
11 kind of hard to separate the two .
— 12 We have concerns about the retail traffic .
13 The retail traffic has increased the traffic on that
14 road 900 percent . We have documentation from a couple
— 15 of sources to prove that .
16 So I don ' t know how you mitigate that . I
17 don' t know how you limit the retail traffic to this
- 18 business to where you have a compromise . I think
19 that ' s probably what we ' re looking for here is some
20 kind of a middle-of-the-road compromise . And I really
21 don' t see how you could do that , put any kind of
22 stipulation on it , you know, 20 cars for one day or a
- 23 figure like that .
4 As far as days of operation. Boy, it sure
25 would be nice to have at least one day a week and
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 35
1 probably two days a week where we didn ' t have to have
2 that impact . And then, again, I guess I really can ' t
3 see a good compromise on our part , you know, as far as
4 allowing the resumption of activity there .
5 And I think Mr . Aragon indicated, you know, a
- 6 partial resumption would not benefit him. I don ' t
7 think it would benefit us . I hope I covered most of
8 the things . I hope they are pertinent to your
- 9 decision-making process here . And if you have any
10 questions, I will attempt to answer those .
11 CHAIRMAN JERKE : Let me ask you about - - the
— _12 mag chloride came up . How has that road been with
13 respect to dust in the last year or so?
14 GARY WEINMEISTER : In the two years it has
— 15 not been good. There has been one application of mag
16 chloride or some similar dust suppressant . One
17 application of dust suppressant in two seasons of
18 operation.
19 CHAIRMAN JERKE : Other questions? To
20 summarize, then, from opponents ' perspective, it would
21 be fairly safe to state that number one priority would
22 be to not have it at all .
23 GARY WEINMEISTER : That ' s correct .
4 CHAIRMAN JERKE : And beyond that would be to
25 obviously limit to some days off with respect to days
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 36
1 off, weekends, and shorter number of hours open per day
2 and - -
- 3 GARY WEINMEISTER : That ' s correct .
4 CHAIRMAN JERKE : Good dust mitigation
5 program.
— 6 GARY WEINMEISTER : I would like to add one
7 little thing. Also a restriction on hours of
8 deliveries coming into the site .
— 9 CHAIRMAN JERKE : And hours of delivery to
10 receive .
11 Okay. Any other questions? Gary, thank you
�2 for your time .
13 GARY WEINMEISTER : Thank you.
14 CHAIRMAN JERKE : At this point we ' ll just go
_ 15 back to my colleagues . We ' ll go ahead and have a
16 little discussion about what kind of direction we would
17 like to go ahead and give Lee from this point on with
18 respect to this case .
19 And this is a time when obviously we deal
20 with real-life freedom of speech and try to go ahead
21 and persuade each other. This is a little bit more
22 legislative, I suppose, than maybe quasi-judicial and
23 we ' re attempting to do it abreast , persuade each
4 other ' s perspective on it .
25 I know, Mike, you have some perspective on
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1 it .
2 COMMISSIONER GEILE : First of all , what I
-- 3 tried to say a little bit earlier, I can see some
4 potential exposure here . Without being a lawyer, I
5 just have a feeling if we just shut this off , put them
— 6 in a position where they can ' t operate, there ' s
7 obviously going to be some damage lawsuits filed. And
8 that ' s , I think, just going to make the situation
— 9 worse .
10 What I would rather do is to put this in the
11 position where we have an opportunity to do it . Only
way we can do that is to put some kind of modified
13 business operating plan in place with a method to
14 review it to ensure they are following whatever
- 15 business plan we come up - - modified business plan we
16 come up with.
- 17 Trying to figure out how that should be said.
18 I think we talked about hours of operation, days of
19 operation, mag chloride, retail visitors . I 'm not sure
20 how you control retail visitors , but I think we can do
21 it with - - hours of operation might solve that . You
22 mentioned hours of delivery, I think.
- 23 CHAIRMAN JERKE : Yeah. Same hours .
4 COMMISSIONER GEILE : So I think that we ' re
25 looking at mitigation. We can just absolutely shut it
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 38
1 off and say this injunction holds . Or we can establish
2 some process where applicant in this case is allowed to
- 3 operate under some kind of plan, which, in essence,
4 mitigates the use or the access to the property by
5 people coming into the business property. So those are
6 my thoughts .
7 CHAIRMAN JERKE : I think it ' s accurate . I
8 think it really is a question of , you know, for the
- 9 interim to be or not to be, whether or not you actually
10 allow a business here or not or whether or not you do
11 provide for enough mitigation to hopefully provide some
— level of protection for the neighbors .
13 And I think we can go through the laundry
14 list of the different things to mitigate, and those are
— 15 pretty obvious by going through the list that we can
16 instruct Lee to negotiate on, but we need to hear from
17 each of us to see whether or not we want to bother or
— 18 not . Lee?
19 LEE MORRISON: Well , the other thing is, I
- 20 mean, what ' s starting to sound like you ' re talking
21 about what would be in the permit . So it seems to me
22 you may want to consider what was recommended to you by
- 23 the planning commission as a starting point . Some of
4 those things are going to - - can ' t really work because
25 there ' s conditions and things like that .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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1 Rather than reinvent another process that
2 ends up looking a lot like the process you 've deferred,
3 you may want to refer to what ' s been recommended by the
4 planning commission, and maybe by exclusion leave those
5 things that aren ' t going to be dealt with in the
- 6 interim, if that ' s the direction you go .
7 CHAIRMAN JERKE : Well , that can certainly be
8 a direction to give you, would be to go with what the
- 9 planning commission recommended. And not having that
10 in front of me at the moment - - some of us apparently
11 do - - Commissioner Vaad probably does, as well as Lee
— 12 does .
13 But there are other things that could come
14 into it as well that we could make specifics on that
- 15 you would be instructed to negotiate upon some of the
16 hours of operation and holidays . For example, mag
17 chloride perhaps to be actually witnessed by a Public
— 18 Works employee, for example . Hours of delivery
19 allowed, some of those kinds of things , that may or may
20 not be exactly accurate with whatever the planning
21 commission had approved of .
22 Anyway, let ' s get back to what other
23 commissioners feel . Commissioner Long?
4 COMMISSIONER LONG: Yeah. From my
25 perspective, at this time I 'm hesitant to come up with
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 40
1 any mitigation plan. We had our initial land use
2 hearing a year ago in October of ' 03 , I think it was .
3 And they were denied, and they operated a whole other
4 season outside the scope of that . They were out of
5 compliance .
6 You don ' t need an attorney to establish a
7 substantial change . You can do that on your own. It ' s
8 a process that allows any citizen to go to the planning
9 department and initiate that application and that
10 process .
11 I think if we were to go - - I understand
— 12 fully and appreciate under normal circumstances when an
13 applicant is in violation and they showed good due
14 diligence to be able to come forward with an
15 application. We do give them that time and allow them
16 to stay open. In here it was by - - there was a denial ,
17 kept working with a thought of maybe substantial
_ 18 change, but it never came to fruition until at the very
19 last moment .
20 We 've spent a considerable amount of taxpayer
_ 21 money and energy and resources , I think, in trying to
22 enforce our - - our codes to the fullest effect of
23 asking our attorney at the time to research and go and
_ 4 tell them that they can' t operate when they should have
25 been in compliance and not operating way back in
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 41
1 October. So I think we gave them to February of that
2 year to be able to wind down and get rid of their
- 3 storage and warehouse supplies . And yet they stayed
4 open for another season.
5 So from my perspective at this time I ' m -- my
- 6 vote would be to uphold the stipulations as they are .
7 And I think because there has not been the due
8 diligence of the words that I 've heard because
- 9 basically they said we ' re going to operate anyway. And
10 so I 'm not willing at this point , unless I 'm convinced
11 otherwise, to negotiate a plan.
— 12 I think it would set a precedent saying just
13 to other potential violators of our code, if we just
14 follow this course we ' ll be able to wriggle around and
— 15 make it work on our behalf , and I 'm not willing to set
16 that kind of precedent .
17 CHAIRMAN JERKE : Certainly good points . And
- 18 I don ' t want , I guess , anybody to think simply because
19 we 've spent a fair amount of time talking about
20 potential mitigation that that was the only route to
21 pursue .
22 The whole question is whether or not we even
23 get to that point , and now we 've obviously heard from
4 Commissioner Long on the direction that he ' s headed on
25 it . Certainly open it up to any of my other colleagues
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 42
1 and talk about a given direction they ' re in at this
2 point .
- 3 And, Mike, you ' ve talked some on it .
4 Commissioner Vaad?
5 COMMISSIONER VAAD : Well , I , like
- 6 Commissioner Long, have struggled with the fact that
7 there was a level - - and I 'm not attributing a reason
8 of why -- but there was an ignoring of the fact that we
- 9 had denied the use by special review and yet the
10 business continued.
11 So I 'm not sure where I sit on that , other
— 12 than it ' s obvious that it was going on. I look at the
13 information provided to us , and obviously Mr . Aragon is
14 invested heavily in the property. The visual aspects
— 15 have certainly improved.
16 And I know in the conditions of approval that
17 were approved by the planning commission in the most
— 18 recent deliberations they had, they required a
19 submittal of the landscape and screening plan. Hard
20 for me to imagine that that plan wouldn ' t - - won ' t --
21 they won ' t admit - - let me start over .
22 I think they would easily have met the
23 requirements with that plan. You can see very little
4 of the operation from outside the property, and what
25 you can see seems attractive, so that ' s a positive .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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1 We -- in the conditions of approval it does
2 require a dust abatement plan be submitted that we get
3 to decide on. We, through our health department ,
4 decides on whether that ' s adequate or not . As I 've
5 listened to Mr . Weinmeister, and I think that ' s all I 'm
6 reflecting on now, the whole issue seems to be on the
7 traffic on that road.
8 Because what ' s going to appear a huge - - my
- 9 term - - auto complex over there is certainly going to
10 be different in the nature of what ' s there right now,
11 Mr. Aragon and the dairy aside . And that hasn' t been
— 12 brought up, so it still goes back to the road.
13 Dust abatement can be successful , use it on
14 the county roads . Dust abatement by a plan that we
15 approve and the responsibility on us is to make sure
16 it ' s an adequate plan and we ' ll take care of the dust .
17 As I recall the drawings , I think there ' s
18 only one property other - - on that road that this
19 traffic impacts before it goes into Mr . Aragon ' s
20 property. The rest of the property is on the south.
_ 21 And you mentioned the health aspects, and I
22 think those were from property owners to the west , and
23 there are also requirements for controlling the
4 fugitive dust from the property. So I think we address
25 that .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
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1 I recall from the very first hearing when it
2 was denied, the noise aspects, large aluminum bed
3 trucks and rocks being unloaded from that , so I haven ' t
4 come - - I haven ' t heard that issue . Again, all the
5 discussion goes back to the road. And a little bit of
6 my recollection of that was that drainage interfered
7 with widening out and doing other things and you can
8 see in the pictures .
9 I don' t want to see anybody go out of
10 business, and that ' s not our purpose . So I ' d be in
11 favor of some kind of an accommodation. I don ' t know
— 12 what that needs to be to assure that Mr . Aragon ' s
13 business can limp along -- my term - - until such a time
14 as the court matter was settled. He suggested that
_ 15 he ' s willing to accept some modifications and
16 restrictions on his business .
17 I ' d be happy to enter into a discussion among
18 us as to what those might be . I guess it would be up
19 to us to determine whether or not we can come up with
20 something we think he can still maintain his business
21 with and until we get a decision from the court
22 matters . It ' s a shame that it ' s probably going to take
23 six or nine months, as been mentioned.
4 CHAIRMAN JERKE : Commissioner Masden?
25 COMMISSIONER MASDEN: Thank you, Chairman.
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 45
1 Yeah. This is - - this is difficult for all of us to go
2 through all this, and with the new findings today with
3 the lawsuit that has been filed also on the access to
4 the road, and that really muddies the water.
5 We do have the Court order that was done
- 6 previously - - well , last year, back on July 1st , 2004 ,
7 where Mr. Aragon did agree to immediately cease and
8 desist accepting any landscaping material and cease all
- 9 business operations on or before October 15th in the
10 statement of stipulation that only if the respondents
11 were granted approval of the USR in Weld County.
— 12 And I think, like counsel said, that they can
13 work with the courts on that . Looking at it, I agree
14 with a lot of the comments that my colleagues have
— 15 talked about and what Commissioner Vaad said. We ' re
16 not here to put people out of business .
17 But there is also a situation, like
— 18 Commissioner Long stated, that they were denied a USR
19 and continued to operate a business . And that was, you
20 know, kind of like thumbing your nose at this board
21 also and the County. And that is very irritating, to
22 say the least .
23 But I get back to looking at where we ' re at
_ 4 on this and the situation we ' re in here today, and like
25 I stated earlier and what Commissioner Vaad said,
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 46
" 1 the - - we ' re not here to put anybody out of business
2 that is complying.
- 3 We have approved them for a substantial
4 change . That ' s one reason we are here today. And they
5 had a hearing before this with the planning commission
- 6 that was approved, passage by a four to three vote,
7 passed on to this board to hear .
8 RICK ZIER: It was unanimous .
9 CHAIRMAN JERKE : Yeah. I think it was a six
10 to zero vote . Three members absent .
11 COMMISSIONER MASDEN: Oh, it was . I
— 12 misspoke . All right . Thank you. That was a unanimous
13 vote on that and then discussion about some
14 modifications on doing business . Because I would be
— 15 agreeable to sitting down and looking at something like
16 that . Modification of days , hours , no holidays .
17 We do have some direction. We have a
18 standard in here for dust - - or dust abatement as
19 needed, whichever we can work out , and hours of
20 operation that would coincide with delivery hours also.
21 So you don ' t have two different sets of hours , which - -
22 one set of hours would be easy for everybody to
- 23 understand and live with. So I would be willing to go
4 along with something like that .
25 CHAIRMAN JERKE : To be able to move this
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 47
1 along, perhaps, and ask counsel for their advice on
2 this along the way because we don ' t want to create an
- 3 impression one way or the other.
4 Again, the question will be what advice we
5 want to go ahead and give counsel to go ahead and move
- 6 on, and if we could have a motion that would go either
7 Commissioner Long ' s way or this way, we would instruct
8 counsel to either enforce basically a court action to
- 9 go ahead and stop the business or to go ahead and allow
10 the business to continue under a serious set of
11 mitigation plans .
— 12 And if that is the successful motion that the
13 group would agree to, then we could go over briefly
14 again to reiterate what those wind up being .
— 15 So if you don ' t think we ' re tainting
16 ourselves too much by an actual vote . Since we have
17 some difference of agreement here, that ' s what I would
— 18 hope we could do .
19 LEE MORRISON: Well , if that ' s the way you
20 think best to resolve it . You know, in a work session
- 21 you tend to do it not by role call but by - -
22 CHAIRMAN JERKE : Typically a nod of the head
23 is what we do most of the time .
4 LEE MORRISON: Right . Because you ' re - - you
25 know, you have to be careful not -- we ' re - - what kind
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 48
�1 of decisions you make in a work session. But if the
2 best way, in your estimation, is to actually do a role
- 3 call , I think you 've done that as well in a work
4 session where there ' s been a more contentious issue .
5 CHAIRMAN JERKE : Well , why don ' t we go ahead,
6 do that , and I guess we ' ll go down this path that at
7 least we will know - - have a direction stated for Lee
8 to be able to follow one way or the other . And at
- 9 least we know which way it goes, whether it goes three
10 to two or four to one or five to zero and give Lee as
11 well as all the people here, court reporter, the proper
— 12 advice on exactly which direction we ' re going.
13 So if somebody would like to state a motion,
14 we could see how it goes . Commissioner Long?
_ 15 COMMISSIONER LONG: Let me state - - temper my
16 motion to -- my motion would be to stay with the
17 stipulated order and uphold that . But I want to temper
18 that also with comments from the colleagues . It ' s not
19 my intent either to stop any business .
20 The idea, though, is to provide health,
21 safety and welfare to the citizens and to have what
22 this board decides , you know, upheld. And in my mind
23 it did not happen. And I don ' t think it would happen.
4 I don' t have confidence in that .
25 So I would make a motion that the stipulated
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 49
1 order be upheld in full .
2 CHAIRMAN JERKE : Okay. Is there a second to
— 3 that motion then?
4 COMMISSIONER LONG: I don ' t think I ' m going
5 to hear that .
— 6 CHAIRMAN JERKE : Not hearing that .
7 COMMISSIONER LONG: It ' s okay. And then if
8 fails - - it fails for lack of motion, then I 'm willing
— 9 to work with my colleagues to be able to do this as - -
10 and work - - I 'm not like --
11 CHAIRMAN JERKS : You ' re not a track vote .
— 12 COMMISSIONER LONG: No .
13 CHAIRMAN JERKE : Commissioner Vaad?
14 COMMISSIONER VAAD : Mr . Chairman, I ' d like to
15 work off of this order from Judge Klein that was
16 entered in - - I guess it was July 1st or July 13th,
17 2004 . And I believe it would be appropriate to ask Lee
- 18 to go back to Judge Klein regarding paragraph No . 5 ,
19 which is business operations may resume, and ask for a
- 20 modification of that to say that business operations
21 may resume immediately with the following
22 modifications .
- 23 And then business will only be conducted
4 Monday through Saturday and only between the hours of
25 9 : 00 to 5 : 00 . And that ' s inclusive of all business ,
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 50
1 including deliveries , so that there aren ' t deliveries
2 happening outside of those hours either . That gives
- 3 the one day without business, the evening hours , even
4 those hours that are still light in the spring and the
5 summer, and people can enjoy their property without
- 6 business traffic on that road.
7 9 : 00 should be late enough for the hours
8 between now and school ' s out , that if school children
- 9 are using that road, they won ' t be encountering
10 retail-type traffic or delivery or commercial traffic
11 on there . And then also - - so this has a concluding
— 12 time .
13 Some reference in that paragraph 5 of the
14 stipulation that this will hold in place until there ' s
_ 15 a resolution of the litigation that we were presented
16 this morning so that that ' s resolved.
17 And if that ' s resolved and not in the favor
18 of the applicant , then this stipulation goes away and
19 we ' re back to there will be no business because there
20 would be no access for commercial . So I ' m trying to
_ 21 tie those things today together.
22 CHAIRMAN JERKE : I don ' t know that we have to
23 be so specific because Lee ' s the lawyer here . We give
4 him the direction, and hopefully that ' s what you can
25 say. I think it ' s clearly, it ' s - - it ' s - - this is one
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 51
of those things that I don' t know about doing it only
2 when that litigation has been decided. It could be
— 3 appealed for years to come .
4 LEE MORRISON: I think the other problem with
5 litigation is there doesn ' t necessarily seek exclusion
— 6 from use of that road. It seeks other relief and
7 primary focus doesn ' t seem to be stopping the use . It
8 has to do with the nature of the improvements , the cost
— 9 of the improvements, the width of the road, but I don' t
10 see it seeking a prohibition of use .
11 CHAIRMAN JERKE : Wouldn ' t we want to tie it
12 to our final resolution with respect to the USR?
13 LEE MORRISON: Yeah. To slightly modify
14 Commissioner Vaad ' s approach, it would be more when you
15 make a decision and they would either -- it would have
16 to comply with that either in the affirmative, or if
17 denied then they would have to conclude operations .
18 COMMISSIONER VAAD : Then I stand corrected.
19 CHAIRMAN JERKE : Well , let ' s make it a
20 work-in-progress . Are there further things that people
21 want to put on this laundry list? Commissioner Geile?
22 COMMISSIONER GEILE : I guess I do respect
23 Commissioner Vaad. I would order to limit the retail
4 side of it . My thoughts would be Monday through
25 Friday, 9 : 00 to 5 : 00 . That would essentially give them
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 52
1 two days relief to the property, the people of the
2 area, and enable the applicant to do business during
- 3 those hours . We ' re talking about a modified business
4 plan.
5 Then the other thought I had would be to
-- 6 put - - but other thing would be that the - - the
7 business would not be allowed to commence until they
8 had completed a dust abatement program that ' s agreeable
- 9 by our Public Works department .
10 And also getting back with - - Commissioner
11 Jerke had mentioned earlier would be - - hours of
— 12 operation would not be permitted on holidays and some
13 definition as to what holidays are . So those are the
14 only thoughts I would have .
- 15 I was trying to figure out a way to control
16 the retail side of it . The way I could figure out is
17 to limit business to 9 : 00 to 5 : 00 . Give the people of
_ 18 the area relief on the weekends .
19 CHAIRMAN JERKE : Like 9 : 00 to 5 : 00? Yeah.
20 Go ahead.
21 COMMISSIONER VAAD : I understand the point - -
22 well made - - and I have never been in the retail
23 business . I understand it . I know when - - the day
_ ^ 4 that I can do things as a buyer is on Saturdays , and so
25 seems like my way of thinking, that ' s a busy day for
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 53
1 this . So if we were going to make it five days , maybe
2 we could ask Mr. Aragon if he would rather Tuesday
3 through Saturday. At least give him that opportunity
4 for what I imagine would be a big retail day on
5 Saturday. Those of us that work can go buy our stuff .
- 6 CHAIRMAN JERKE : That ' s an intriguing
7 trade-off . More like the barber ' s day off on Monday
8 ' cause they want to cut hair on Saturday. I ' m just
9 guessing - - you can show me a nod whether or not you ' d
10 rather be open on a Saturday or a Monday? Saturday?
11 It ' s got to be 50 percent of sales , I would think .
12 Commissioner Long?
13 COMMISSIONER LONG: I agree with
14 Commissioner Guile . Because we ' re talking about true
15 mitigation, and mitigation with the landowners and
16 they' re home Saturdays and Sundays . And that would be
17 my preference . You know, I completely understand the
18 busy day is Saturday.
19 We ' re talking about mitigation here, and I
20 would say, you know, no retail sales or deliveries
21 other than on Monday through Friday 9 : 00 through 5 : 00 .
22 Yeah. That ' s a tight spot . But can you market - -
23 change your business marketing plan to be successful in
4 those timespans . But I think that mitigates , from my
25 perspective, better both sides . I know it ' s tough. I
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 54
r--
1 don' t know if anyone agrees with me necessarily either.
2 CHAIRMAN JERKE : That ' s for sure . We
- 3 understand the issue .
4 Okay. I 'm trying to think if there was
5 anything else here that we were looking at . The thing
- 6 of mag chloride, I think I would want to insist on two
7 per year .
8 COMMISSIONER GEILE : Or as needed.
- 9 CHAIRMAN JERKE : Or as needed determined by
10 Public Works . And I don ' t know if we ' re going to be
11 able to come to an agreement on Saturdays versus
— 12 non-Saturdays or not here . That ' s just a tough one .
13 We need to give some direction to our counsel on that,
14 though. I don ' t know if we want to see a show of hands
— 15 or anything on that . Want to just do that?
16 Okay. Why don ' t we ask the question, I ' ll
17 just ask it simply in favor of a Monday through Friday
- 18 only. Okay. Two . Favor of Monday through Saturday.
19 Okay. Three . So you got a 60/40 split there, Counsel .
20 You can see there ' s some mixed emotions on it, to say
21 the least . Perhaps in negotiations you can do Saturday
22 mornings .
- 23 COMMISSIONER LONG: A compromise Tuesday
4 through Saturday.
25 CHAIRMAN JERKE : Would Tuesday through
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 55
1 Saturday change the vote any? Or see if it does?
2 COMMISSIONER GEILE : Based upon the fact that
- 3 I voted included Saturdays , that ' s a good compromise .
4 CHAIRMAN JERKE : Yeah. It would be . Lee, I
5 think the direction that you probably need to have is
- 6 maybe that you need to have some discretion on this .
7 Obviously, it ' s a tight enough vote that - - oh, you ' re
8 enjoying this , aren ' t you? Perhaps a Tuesday through
9 Saturday might be amenable .
10 Perhaps an early closing hour on a Saturday
11 might be an advantage instead of stretching it clear
— 12 out to 5 : 00 . Getting it done by 3 : 00 in the afternoon
13 or noon even. But I think it ' s clear that we would
14 want to see more mitigation on the Saturday than
- 15 what -- than what a full , complete day is .
16 COMMISSIONER MADSEN: Early closing on
— 17 Saturday.
18 CHAIRMAN JERKE : Were there any other issues
19 to give Lee direction on mitigation? Oh, the other - -
20 well - -
21 COMMISSIONER LONG: Deliveries .
22 CHAIRMAN JERKE : Deliveries were included in
- 23 the same hours .
4 COMMISSIONER MADSEN: Of operation.
25 CHAIRMAN JERKE : And the other thing would be
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 56
1 to simply incorporate other requirements from planning
2 commission that we would have already had in our
3 resolution, and that I believe is agreed on a nod to
4 enforce those things .
5 COMMISSIONER GEILE : One of the questions I
6 had, Mr. Chairman, is how are we going to enforce this?
7 CHAIRMAN JERKE : I 'm looking right at Bethany
8 right now.
9 COMMISSIONER GEILE : I do need to have that
10 comfort level in view of the history of this , and I
11 think the applicant would want us to have some sort of
_ 12 enforcement procedure for representation.
13 CHAIRMAN JERKE : Lee?
14 LEE MORRISON: To some extent, it ' s
— 15 expedited, because if we make this an order of the
16 Court, it ' s already at that level ; whereas , someone
17 else who would take it to court would first have to
— 18 establish an order and a default or an order or default
19 and proceed to contempt . At this point if we have a
20 stipulated order, then the next step would be to bring
21 a contempt citation. That ' s as far as the process that
22 I would have been involved in.
23 I would think that the violations arm of the
4 planning department would operate in the same fashion
25 they operate in on other cases where we have an order
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 57
1 and that is keep track of whether there is a violation
2 of that order.
3 COMMISSIONER MASDEN: Lee, I was wondering,
4 as part of our agreement on all this , at this point in
5 time that you could include in this - - and see if
6 everybody would be agreeable - - that if there is a
7 violation of what agreement you come up with for them
8 to operate, if there ' s a violation - - if Bethany would
9 happen to write a violation on this, that it would go
10 back to the original stipulation. If there is a
11 violation, that we go back - - that we go back to square
— 12 one . We go back to the stipulation or Court order.
3 LEE MORRISON: The only -- someone, though,
14 is going to need to make a determination on that , and
15 the way - - that would either be the Court , the way this
16 is set up, or conceivably you. I 'm not real
17 comfortable in putting that on the planning department .
18 Because I can tell you this is a case where
19 we 've had assertions of violations and responses that,
20 as an example, some - - offer some work on the site that
21 the applicant said was landscaping of their own site,
22 not a violation of the requirement that they not haul
23 any material for retail . So I don ' t want - - I think if
. 24 we do that there ' s still got to be someone with or
25 without a robe who has the ability to make a
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 58
1 determination of whether it ' s really a violation or
2 not , to hold a hearing.
- 3 And so we could put in there that if the
4 judge determines or if you determine that there ' s been
5 a violation of the stipulation, that the remedy would
- 6 be to close down. We can do that, but there needs to
7 be a hearing before that happens .
8 COMMISSIONER MASDEN: Which would either be
- 9 by the Court or by us .
10 LEE MORRISON: Yeah. So that might be a way
11 to create a remedy short of contempt .
— 12 COMMISSIONER MASDEN: That ' s what I was
3 looking at . Some type of enforcement process .
14 LEE MORRISON: That still could go to the
15 Court ' cause we could stipulate and if the Court
16 determines that they violated it , then this provision
17 would be revoked. And then the next step if they
18 continue would be to bring a contempt .
19 RICK ZIER : We agree with that . Agree with
- 20 Commissioner Geile . We want that too . We want that
21 objective met .
22 COMMISSIONER MADSEN: It protects both - - all
23 parties .
LEE MORRISON: Of course it does .
25 CHAIRMAN JERKE : Lee, does it need to be
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 59
1 either or would they, obviously, the applicant , have
2 the ability to appeal to the courts if they didn ' t like
- 3 our decision anyway?
4 LEE MORRISON: Well , I think it - - it depends
5 on the framework . You know, they can appeal a final
- 6 decision of your board. So if it were set up - - if you
7 heard that case and made a final decision, that would
8 make it an appealable decision. So, yeah. We could
- 9 set it up that way.
10 I mean, I think the direction you should tell
11 me is , do you want it to go to you or to the Court in
— 12 the first instance . Ultimately it could go to the
3 Court if you wrote your decision as the final decision.
14 CHAIRMAN JERKE : We can act quicker than the
- 15 Court , I assume .
16 LEE MORRISON: Well , in most cases .
17 CHAIRMAN JERKE : Usually we can. Until today
18 I always thought that was true .
19 LEE MORRISON: Ordinarily we have better
— 20 access to your docket than the Court ' s docket .
21 CHAIRMAN JERKE : Is there a drawback to
22 making it either?
23 LEE MORRISON: I don ' t know. That sounds
...24 like the kind of question that Mr . Zier and I might
25 need to converse about .
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 60
1 CHAIRMAN JERKE : Why don ' t we just give you
2 direction to go ahead and converse about which is the
- 3 best way to go for a perceived violation that goes
4 through a process, something that ' s a little out of our
5 league today, perhaps .
- 6 We have another staffer that wants to come up
7 and give us advice .
8 BETHANY SALZMAN: Can I just ask for
- 9 clarification. The majority of the complaints that I
10 do get are dealing with work that ' s conducted on the
11 site after hours . Does this 9 : 00 to 5 : 00 include
— 12 business-related maintenance of the property? Which is
3 the majority of the complaints that I do get , and I
14 foresee that being a problem. If I will - - continue to
__ 15 get complaints on that if it ' s - - that ' s one of my
16 questions .
17 CHAIRMAN JERKE : You just see me nodding my
- 18 head, don ' t you?
19 BETHANY SALZMAN: I do.— 20 CHAIRMAN JERKE : That ' s a great question.
21 BETHANY SALZMAN: At 5 : 00 they ' re closed?
22 CHAIRMAN JERKE : I ' ll turn to my colleagues .
- 23 If there is business operations going on there, then I
— ,,-24 would assume that ' s a violation at that point . We ' re
25 holding applicant ' s feet to the fire closer than
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 61
1 they 've been held before in order to try and mitigate
2 this situation.
- 3 LEE MORRISON: So you want business -- in the
4 past , the issue had been is business including
5 improving the site? And it ' s not clearly stated that
- 6 it is, but you want it to be stated that site
7 improvements also fall within any --
8 CHAIRMAN JERKE : Quit working at 5 : 00 .
- 9 BETHANY SALZMAN: Thank you.
10 CHAIRMAN JERKE : I 'm assuming my colleagues,
11 that they would like to see some - - Commissioner Vaad?
— 12 COMMISSIONER VAAD : Just to say it verbally.
3 I think the discussion has been pretty clear what the
14 concerns of the neighbors are . And so we ' re trying to
— 15 stop business outside of the hours of 9 : 00 to 5 : 00 , and
16 if something ' s going on that brings up a complaint ,
17 people say, Business is going on, that ' s antithetical
- 18 to what we ' re trying to remedy here .
19 CHAIRMAN JERKE : I guess the final question
20 would be to Lee, then. Do you have what you need from
21 us today in the work session to give you direction to
22 work with the applicant?
23 LEE MORRISON: I think I have enough to work
r.24 with the applicant up to a point . I may need to bring
25 it back to you, but I believe I have enough that
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 62
1 Mr . Zier and I can discuss it .
2 CHAIRMAN JERKE : Okay.
- 3 COMMISSIONER MADSEN: We can give you more if
4 you need.
5 CHAIRMAN JERKE : We could give you less too .
- 6 Okay. I think that ' s it . Thank you and this is the
7 first time that we 've done anything like this in my 50
8 months here, so this has been quite unique . I
- 9 appreciate your patience and attentiveness to this , and
10 it hopefully will be a good process .
11 Commissioner Geile?
— 12 COMMISSIONER GEILE : I have one more thing.
3 It goes back to what I was trying to say a bit earlier
14 at first . And that is all sensitivity and emotions are
_ 15 tied to both sides . People have come out, the
16 applicant , in essence, people in the area - - is so high
17 at this level . All it ' s going to do is generate more
18 and more litigation.
19 So in my opinion what this does , by
— 20 mitigating this, it at least gives a process to move
21 ahead towards a hearing date in the future . Perhaps
22 hearing this with as few clouds , maybe without any
23 clouds, possibly, so we can come to a determination.
�4 And I would hope that the property owners realize that
25 what we ' re trying to do is in the best interest of
BOARD OF COUNTY COMMISSIONERS WORK SESSION RE: APPLICANT MARCELLE GEUDNER
Page 63
r,.., 1 everybody, especially as I look at it from the
2 mitigation part and letting us hear the case .
— 3 CHAIRMAN JERKE : Thanks . And that ' s all for
4 this work session. Thank you.
5 (Work session concluded at 2 : 58 p .m. )
— 6 * * * * *
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Page 64
1 CERTIFICATE
2 I , KRISTY R. HUGHES, a Shorthand Reporter
3 and a Notary Public of the State of Colorado, appointed
4 to take the WELD COUNTY, BOARD OF COMMISSIONERS WORK
5 SESSION, certify that the work session was taken by me
6 at 915 10th Street, Greeley, Colorado, on February 16,
7 2005; that the proceedings were thereafter reduced to
8 typewritten form by means of computer-aided
9 transcription; that the foregoing is an accurate
10 transcript of the proceedings at that time .
11 I further certify that I am not related to
— 12 any party herein or their counsel and have no interest
13 in the result of this litigation.
14 IN WITNESS WHEREOF, I have hereunto set my
15 hand and affixed my Notarial Seal this 10th day of
16 March, 2005 .
17 0% R.
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20 9/ •... ...:.,s9
21 �� Short and Reporter
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22 My Commission Expires 07/05/2008
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