HomeMy WebLinkAbout20060096.tiff HEARING CERTIFICATION
DOCKET NO. 2005-13.A
RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1495
FOR A BUSINESS PERMITTED AS A USE BY RIGHT OR ACCESSORY USE IN THE
COMMERCIAL ZONE DISTRICT (LANDSCAPE MATERIALS YARD) IN THE
A (AGRICULTURAL) ZONE DISTRICT - JESS ARAGON, DBA TIMBERROCK
LANDSCAPE
A public hearing was conducted on February 8, 2006, at 10:00 a.m., with the following present:
Commissioner M. J. Geile, Chair
Commissioner David E. Long, Pro-Tem
Commissioner William H. Jerke
Commissioner Robert D. Masden
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Lee Morrison
Planning Department representative, Michelle Martin
Health Department representative, Char Davis
Public Works representative, Donald Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated September 30,2005,and duly published October 5,
2005, in the Fort Lupton Press, a public hearing was conducted on October 19, 2005,to consider
the request of Jess Aragon,dba TimberRock Landscape,fora Site Specific Development Plan and
Use by Special Review Permit#1495 fora Business Permitted as a Use by Right or Accessory Use
in the Commercial Zone District(landscape materials yard)in the A(Agricultural)Zone District. At
said hearing, the Board deemed it advisable to continue the matter to February 8, 2006, to allow
adequate time to obtain a ruling from the District Court on pending litigation filed by the surrounding
property owners. On February 8, 2006, Lee Morrison, Assistant County Attorney, made this a
matter of record. Michelle Martin,Department of Planning Services,gave a brief description of the
location of the site and surrounding land uses. She stated eleven referral agencies reviewed this
proposal, ten responded favorably or provided comments that have been addressed in the
Conditions of Approval and Development Standards,and staff received no correspondence from
the Colorado Division of Wildlife. Ms. Martin stated she did receive various correspondence from
surrounding property owners expressing concern regarding noise,dust,traffic,and incompatibility.
She stated, regarding the pending civil dispute over use of the joint access road, Judge Jonathan
Hays has made a ruling,therefore, it is now appropriate to proceed with review of the application.
In response to Commissioner Masden, Ms. Martin stated the privacy fence surrounding the site is
approximately six feet tall.
Char Davis, Department of Public Health and Environment, stated the site will be serviced by the
Little Thompson Water District and a permitted septic system. She stated the applicant did submit
a Dust Abatement Plan,which has been reviewed by staff and found to be adequate. Responding
to Chair Geile, Ms.Smith stated the Dust Abatement Plan addresses the internal portion of the site,
not the access road.
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Donald Carroll, Department of Public Works, stated he is requesting the applicant widen the road
and culvert through the drainage area west of the site access gate. He further stated the applicant
will be required to maintain the business haul route with an adequate surface,which includes dust
control for all-weather access.
Rick Zier,Attorney, represented the applicant and stated the applicant is in agreement with all the
Conditions of Approval and Development Standards,and he clarified the privacy fence is seven feet
tall. He stated the site slopes from the south to the north,therefore,the piles of material have been
placed on the south end. He explained the applicant has done some cut and fill within the site,and
in some places the ground level is 12 to 13 feet below the top of the fence. He stated the applicant
began the operation without the necessary permits and was directed to apply for a Use by Special
Review Permit. He stated the original application was denied, by a vote of three to two, due to
concern regarding dust,noise,screening,traffic,and the credibility of the applicant. Mr.Zier stated
following the denial,the applicant spent time trying to obtain legal representation,and was under the
impression that since he was in the application process, he could open the business. However,
Weld County disagreed and negotiated an arrangement which allowed the business to stay open,
on a limited basis,while the applicant continued to pursue a Use by Special Review Permit. Mr.Zeir
stated the Board of Commissioners approved a Substantial Change application in October,2004,
based on a more detailed application and the announcement of a projected auto mall and related
uses,which was new since the original hearing. He stated, in an effort to show the Board he would
do what he had promised, the applicant also made significant changes to the site, including
landscaping, dust mitigation within the site and on the access road, and road improvements. He
further stated approval of the Substantial Change allowed for the submittal of a new Use by Special
Review application, which was unanimously approved by the Town of Windsor Planning
Commission, and approved by the Weld County Planning Commission on February 1, 2005. On
February 15,2005,the application was presented to the Board of Commissioners; however, prior
to the hearing the applicant was served with papers of complaint for a lawsuit regarding the
proposed commercial use of the private road. He stated the road was commonly owned by the
various adjacent property owners;however,the opponents requested partition,which would divide
the road among the various properties and create an easement for their use. Mr. Zier stated the
Board of Commissioners continued the hearing, pending the outcome of court proceedings. He
stated during the interim the Board received complaints from surrounding property owners,which
initiated a Probable Cause Hearing;however,the Board determined the applicant had not violated
the operating conditions. He further stated,on January 27,2006,the court did order partition of the
road and that each party pay$200.00 for maintenance and use the road. The order further stated
the users were not to obstruct the use of the road, and ultimately the road exists under a 60-foot
easement. Mr.Zier stated during the Substantial Change Hearing, it was noted that the adjacent
Cozy Cow Dairy intended to start retail uses, and there is now a formal application for a Use by
Special Review Permit on that site. He stated the auto mall to the south has already begun site
grading work. He stated the subject site was eroded; however, the drainage has been improved,
road base has been added,the applicant is applying Magnesium Chloride to the site twice a year
for dust mitigation,and a formal traffic study has been conducted. He further stated approximately
90 percent of the site is covered with rock, which helps control dust, although some of the mulch
and topsoil piles do have potential for blowing. He stated the septic system has been designed and
installed for the public restroom,the site has been improved with landscaping and water features,
and noise has been mitigated by the location of the materials yard,fencing, and landscaping. He
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further stated the site will serve as a buffer or transitional use from the site to the south,which will
consist of high traffic volumes, lighting, and continual activity. Mr. Zier stated the area along
U.S. Highway 34 is changing. He stated the closest residence is 160 feet from the property line;
however,the house is approximately 250 feet from the landscaping activities and separated by a
building,fencing,and topography. He stated the next closest home is 400 feet to the northeast,with
additional distance from the materials yard. Mr.Zier stated the remaining complaints were received
from neighbors west of the site; however, traffic accessing the site and will not drive past those
homes. He stated the applicant is required to mitigate the reasonable concerns of the neighbors,
and he feels the applicant has gone beyond what is required to show the area residents that this will
be a nice operation. He stated the opponents are requesting the applicant be restricted to the
current temporary hours of operation; however, the applicant is requesting the site be allowed to
operate from 8:00 a.m.to 6:00 p.m.,Monday through Saturday,and from 9:00 a.m.to 5:00 p.m.on
Sunday. He stated this is a seasonal business,and it is very important for the applicant to operate
on weekends to meet the needs of the customers.
In response to Chair Geile, Mr. Morrison stated it is not necessary for the applicant to resubmit
documents previously submitted at the Planning Commission hearing. Mr.Zier submitted copies
of court documents, marked Exhibit T.
Jess Aragon, applicant, submitted a booklet, marked Exhibit U, and thanked his neighbors for
expressing their concerns because they have resulted in a better application and site. Mr.Aragon
referred to various pages in the booklet with pictures showing the improvements to the site,
including landscaping,fencing, dust abatement on the road and parking areas, public restrooms,
screening,a new building with sod,signage,and weed control. He also referred to pages showing
comparison pictures of the site before and after the work was completed,material piles,views from
the site, construction of the terraces within the site, and the office and parking area. Mr. Aragon
stated he relocated the truck parking area away from the Weiler property, and now uses that area
to stack landscaping timbers,which are hand loaded. He stated the terraces within the site resulted
in a base level that is lower than the bottom of the fence line. Mr. Aragon also referred to pages
showing views of the site from Windsong Ranch and other surrounding properties, and the
construction taking place south of the site. He stated the Weiler residence is 160 feet west of the
western property line, and the TimberRock site is not visible from the front of the Weinmeister
residence. He further stated some of the residents in the Windsong Ranch subdivision did sign a
petition in support of his proposal,and he feels the hours of 8:00 a.m.to 6:00 p.m.,Monday through
Saturday, and 9:00 a.m. to 5:00 p.m. on Sunday, are very reasonable for this type of operation.
Matt Delich, Delich and Associates, stated he has been conducting traffic studies in northern
Colorado since 1980. He submitted a copy of his Traffic Study, marked Exhibit V, and stated he
conducted his traffic counts on Saturday,September 18,2004,during the morning and afternoon.
He stated the afternoon peak hour had a total of 15 trips, with ten trips being associated with the
subject site. Mr.Delich stated his study was conducted after the peak season;however,a neighbor
conducted an informal count and reported 22 trips per day during the busy season. He stated both
studies show a minimal amount of traffic, and based on the County traffic manual, this operation
generates less than a typical landscaping business,on a road that can easily handle the anticipated
amount of traffic.
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Warren Schaeffer,attorney representing the plaintiffs in the lawsuit,submitted duplicate copies of
the court order,marked Exhibit T. He stated the most critical finding of the court is that the property
owners were allowed to extend their property lines to the centerline of the road and establish use
of the road under an easement pursuant to case law reflected in Lazy Dog Ranch v.Telluray Ranch
Corporation. He referred to paragraph#5.a,which states the owners may make use of their portion
of the easement,which is necessary,including maintenance,which does not cause unreasonable
damage to the servient estate,or unreasonably interfere with the enjoyment of the servient estate.
He stated the TimberRock property is dominant to the Schinnerand Cozy Cow Dairy properties to
the east,and the most dominant property along the easement is the Hartshorn property at the west
end of the road. He state the Schinners feel they are being unduly burdened by the TimberRock
activities, and the Weilers are also greatly impacted because they are the closest neighbors. He
stated the neighbors had to fully litigate the case in an effort to protect their property rights and
enjoyment of their property. Responding to Chair Geile, Mr. Schaeffer stated paragraph #5.b
indicates the dominant estate has the obligation to maintain the quality of the access, and the
shared maintenance responsibility is diminished for the property owners to the east. He stated a
narrow interpretation of the language indicates the property owners to the west share in the burden
of maintaining the access leading to the TimberRock access,which may result in further litigation.
In response to Commissioner Long, Mr. Schaeffer stated the Lazy Dog Ranch v. Telluray Ranch
Corporation case established the concept of dominant and servient estates. (Clerk's Note:A copy
of Lazy Dog Ranch v. Telluray Ranch Corporation was added to the file by Assistant County
Attorney, Lee Morrison, marked Exhibit Y.)
Jeff Richards,attorney for Garry and Kathy Weinmeister, referred to a letter which was submitted
with the forged signatures of the Weinmeisters, and stated he was hired to help resolve the
problem. In response to Chair Geile, Mr.Morrison stated the Board always has the authority to sift
through the evidence and determine whether it is credible or applicable. Mr. Richards stated his
clients simply want to refute the letter, as it exists in the record, and he submitted copies of the
investigator's background and his results,marked Exhibits W and X. He stated the investigator did
an analysis and deduced the signatures were forged;however,the content of the letter still resulted
in harming the Weinmeisters' reputation in the community.
Kathy Weinmeister, surrounding property owner, submitted a booklet, marked Exhibit Z, with
photographs supporting her concerns regarding health hazards from dust,traffic safety, and use
of the private road. She stated there is no dispute that the applicant has created a visually pleasing
site;however,that does not make it compatible with the other uses in the area. She referred to her
pictures showing the deteriorating condition of the road due to standing water caused by alterations
to the natural drainage, rocks tracked onto Weld County Road 17, mud and standing water along
the culvert area,etcetera. Ms.Weinmeister referred to the findings of her unscientific traffic count,
conducted during the peak season spanning from May 15,2004,to June 13,2004,fora total of 29.5
hours. She stated during the two-month period there was a total of 395 vehicles,of which 111 were
dump trucks and 20 were semi trucks. She further stated there was one occurrence when one of
the large trucks left a trail of spilled material along the road,and she expressed concern with trucks
being parked along the access road before and after hours, which may be a hazard during an
emergency situation. She referred to additional photographs showing examples of the dust
generated by traffic on the access road, and stated Magnesium Chloride was not applied until
July 19, 2005. Lastly, Ms. Weinmeister reviewed various photographs taken from surrounding
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properties showing the distance and views from the Weiler property. She stated it is 58 feet from
the Weiler's yard to the TimberRock fence,the residents are impacted by dust and exhaust fumes
from parked trucks, and the health, safety and welfare of the area residents are still in jeopardy.
Mr. Morrison stated the record will be in the Clerk to the Board's Office during the lunch hour for
review, since copies of some of the submitted exhibits were not provided to all parties involved.
ChairGeile recessed the hearing until 1:30 p.m. Upon reconvening,John Schroeder,owner of Elite
Rock and Stone,stated he markets stone throughout the country,and TimberRock is the cleanest
and neatest site that he has done business with. Mr. Schroeder stated he inquired of his largest
customer in the Front Range,which completes thirteen times the volume of TimberRock, and the
operator indicated an average traffic count during the peak season of 111 entrances per day.
Carmen Stavely, Group Real Estate, stated she was the listing agent when the property was sold
to Marcelle Geudner,who later transferred the property to Mr. Aragon. Ms. Stavely stated she is
aware of the original condition of the site, and the applicant has significantly improved the site's
appearance and road condition. She stated the property was sold to Ms. Geudner approximately
four years ago.
Bob Ho stated he provides advertising services along the north Front Range,and he has completed
business dealings with the applicant. He stated Mr. Aragon has been in good standing in the
community, and has advertised in accordance with the hours restricted by the County. Mr. Ho
stated he has visited the site,as well as many others in the area,and he observed the subject site
to be the most visually appealing.
Karl Hagman,Windsor resident,stated he has a new home and intends to do the landscaping. He
stated the existing hours of operation make it difficult for many people to access the site, and he
supports the proposed hours, including weekends. He stated the establishment is in a good
location;however,without the requested hours,the business will not be very competitive with other
facilities in the area. He further stated the barrier fencing will likely serve as a mitigating factor for
the neighboring properties to the west by shielding the light that is sure to be generated by the future
auto mall.
Ron Martin,Fort Collins resident and mortgage broker,stated the future auto mall property is under
significant change,and the subject site appears to serve as a buffer for the properties to the north.
He stated the site historically served as a silage pit for the Cozy Cow Dairy; however, it has since
been significantly improved and is a tremendous addition to the community. He further stated the
applicant should be allowed to have normal business hours in order to operate and make a living.
He stated the applicant is not a developer and was unaware of the land application process;
however, once he was notified and provided with direction, Mr. Aragon has done all that was
requested of him.
Garry Weinmeister, surrounding property owner, stated proponents of the application have
attempted to discredit his testimony in the past. He stated he still has concerns regarding traffic,
noise, dust, and the quality of life. He stated the original application was denied based on
incompatibility with the existing uses. Mr.Weinmeister stated the proposed auto mall will be located
in the southeast corner of the property to the south, approximately 1,800 feet from TimberRock;
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however,the distance from TimberRock to Windsong Ranch is 698 feet,and 163 feet to the Weiler
residence. Mr. Weinmeister stated the proposed high-density business is incompatible with
the 26 surrounding homes. He stated the original application was denied, in part, because of the
commercial use of the road; however, following the recent court findings, the adjoining property
owners still assume liability for accidents that may occur on the road. He stated noise continues
to be a problem, despite the screening placed by the applicant. He further stated traffic is still a
significant issue,and the applicant's engineer made his findings based on a study conducted after
the busy season had ended. Mr. Weinmeister stated on a busy day the traffic count could reach
200 to 250 trips, many of which are trucks and semis, and during 2005, dust suppressant was
applied only once. He expressed concern with the proposed hours of operation being seven days
a week,and noted he has witnessed activity at the site before and after hours. He further stated the
operator gets a break from the site; however, the neighbors are forced to live with the impacts on
a daily basis. Mr.Weinmeister stated the Windsor Fire Protection District required the placement
of two fire hydrants;however,they have not been placed,and other outstanding concerns still have
not been addressed. He stated there are claims that denial of this request will put the business out
of operation;however,the applicant does have the option of relocating during the slow season and
using the site for residential purposes. He further stated TimberRock has operated for three full
seasons without having the appropriate permits, and the same concerns that resulted in a denial
of the first application are still valid concerns.
Tom Weiler, surrounding property owner, stated he resides at the property directly west of, and
adjacent to,TimberRock. He stated the auto mall will be one-half mile away,and it will not consist
of heavy equipment,noise,traffic,or dust. Mr.Weiler stated he lives 160 feet from the site,and the
busy season coincides with the time of year that the area residents want to be outside enjoying their
properties. He stated TimberRock may be a nice place to do business; however,the patrons get
to leave and enjoy their own property, while the neighbors are left to deal with the impacts. He
further stated dumping rocks into a metal dump truck is very noisy and disruptive, and the Board
should consider the property rights of both the applicant and the surrounding property owners.
Lyn Martin, Fort Collins resident and customer of TimberRock,stated almost 90 percent of the site
is surfaced with rock and dust abatement chemicals. She stated the business has one semi-truck,
with one driver, who often completes deliveries directly from the rock quarries rather than the
landscape yard. Ms. Martin stated she did not experience loud noise from dumping rocks upon her
visits to the site,and the auto mall will likely generate conflicts for the neighbors concerning noise,
lights, etcetera. She stated the applicant has pursued the necessary permits and remained in
compliance throughout the various delays in the process. She stated the applicant should be
allowed to operate with the requested hours of operation,which are more conservative than many
of his competitors,and she noted the Town of Windsor and the Weld County Planning Commission
recommended approval of the proposal.
Jim Spears, TimberRock employee/truck driver, stated Mr. Aragon surfaced the site with rock to
help control the dust, and screening was placed to buffer noise. He stated the road is well
maintained and quickly repaired after inclement weather. He further stated he is not at the site very
often,and he can complete three or four loads per day,which does not generate truck traffic on the
road. Mr.Spears stated dust is also generated by some of the surrounding land uses,and his dump
truck has a liner to help reduce noise.
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Brandi Rubiano stated she has known the applicant for 14 years, and has worked at TimberRock
since she was 14 years old. She stated the sign for the site is very good quality, and the
landscaping and water feature are nice. Ms. Rubiano stated the neighbors seem to be opposing
the applicant rather than the operation. She stated there have been times when she has worked
at the site alone,and she can only serve up to four customers at a time,therefore,she does not feel
the site generates an excess amount of traffic. She further stated that although she has severe
allergies, she does not have a problem working at the site.
Sean Brodley, Fort Collins resident,stated he has been a friend and employee of the applicant for
1.5 years. He stated he has found the applicant to be generous and kind-hearted,and he has been
working to improve the condition of the site and the road serving the site and his neighbors.
Mr. Brodley stated the road is much wider, smoother, and safer to drive on, and the site is
well-maintained and clean of miscellaneous debris. He stated Mr.Aragon has worked hard to meet
the demands of the County,and he has not seen any discrepancies with how the applicant operates
the facility.
Judy Hartshorn,surrounding property owner since 1973,stated she can hear gravel being dumped
at the TimberRock site from one-half mile away. Ms. Hartshorn stated she assisted Ms.
Weinmeister in conducting the traffic study,and she clarified the study is a compilation of 29 hours
during a one-month period for a total of 395 vehicles. She stated Mr. Carroll has requested the
culvert replacement in response to her husband's request,and she requested there be a time limit
on when the work be completed. She stated the landscaping yard is beautiful;however,she does
not feel it is in the right location. She thanked the Board for viewing both sides of the issue.
Marcelle Geudner,Littleton resident,stated she bought the property in June 2001,which was later
sold to the applicant in February2005. Ms.Geudner stated when she bought the property the road
was almost impassible. She explained Mr.Aragon is waiting to improve the culvert until he receives
final approval from the Board. She stated the auto mall will have very tall light poles,and she feels
the noise from traffic on U.S. Highway 34 and dust from the auto mall construction is much more
intrusive than anything generated by TimberRock.
Tina Schinner,surrounding property owner,stated everyone agrees the site is very nice;however,
her issue of concern is compatibility. She stated, as proposed, the business would be open 65
hours a week, seven days a week, and she noted the applicant was operating a business in the
Town of Windsor and should have been aware of the permitting process. Ms.Schinner stated her
private attorney has indicated an increased liability burden will exist now that the road has been
partitioned,and based on the potential amount of traffic, it is very likely a lawsuit will come forth in
the event of an accident. She referred to Lazy Dog Ranch v. Telluray Ranch Corporation,which
states the dominant tenant cannot place an undue burden on the servient tenant;however,that will
be the case with TimberRock and the traffic that must pass her home to reach the business. Ms.
Schinner further stated there are children in the area who use the road, and she is concerned for
their safety. She stated if the business is allowed to operate seven days a week,the residents will
not have an opportunity to enjoy their own properties. Ms.Schinner stated the applicant will naturally
want to increase the business,which will result in more traffic,regardless of whether noise and dust
are mitigated. She stated the highest traffic count recorded by Ms. Weinmeister indicated 22
vehicles in a day,during peak season,and Mr. Delich's estimates indicate there could be a vehicle
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passing every five minutes. Responding to Commissioner Vaad,Ms.Schinner stated although she
requested partition of the road,which resulted in increased liability, she feels she had increased
liability even before the partition took place. She explained the neighbors did attempt to come to a
resolution; however, they did not receive a response from the applicant.
Cindy Rubiano,Office Manager,stated the application is requesting a maximum of six employees,
including herself, Mr.Aragon,and her daughter. She stated the semi truck is not always at the site
everyday, the existing culvert was installed at the request of a neighbor, and the photographs
displayed by Ms.Weinmeister,depicting poor road conditions,were taken prior to the improvements
completed by the applicant. She stated there are business receipts proving TimberRock has paid
for dust mitigation more than once,they have posted speed limit signs, and a majority of the time
customers are leaving with loaded vehicles and are not speeding. Ms. Rubiano stated the fire
hydrants are not required unless the site is annexed to the Town of Windsor and water and sewer
are provided,and the school bus does not run during the peak season in the summer. She referred
to an oversized map from the Town of Windsor, marked Exhibit AA,which designated the area for
neighborhood businesses, and one half of the residents from Windsong Ranch signed letters in
support of the business. Responding to Commissioner Jerke, Ms. Rubiano stated TimberRock
primarily serves homeowners, therefore, it does not need to open until 8:00 a.m.,whereas larger
companies which deal with commercial landscapers need to open earlier. She stated the business
remain open until 6:00 p.m., to service the needs of the homeowner/customers.
Charles Schinner,surrounding property owner,stated there are no street lights on the road for night
operation,and although the TimberRock employees drive very well,the customers often speed. He
stated it is difficult to see oncoming traffic at the intersection of the access road and Weld County
Road 17, which has a speed limit of 55 miles per hour. Mr. Schinner stated his daughter enjoys
riding horses; however, she is restricted from using the access road due to the possibility of
vehicles spooking the horses. He stated the neighborhood attempted to form a Road Association
which would have carried the liability insurance rather than each individual owner; however, the
neighbors did not receive a response from the applicant. He further stated the neighbors are still
open to that option in an attempt to deal with the problem before an accident happens. Mr.Schinner
stated the traffic will increase during the summer hours, when the area residents want to be
outdoors enjoying their properties,and he does not feel the applicant's ignorance of the law should
be used as a defense.
Brad Weiler, surrounding property owner to the west, stated he concurs with all of the previous
comments of opposition,and he submitted photographs of dust generated at the TimberRock site,
marked Exhibit BB. He stated the privacy fence is seven feet tall; however, it appears the property
within the fence is elevated because people are visible over the top of the fence. He stated he does
not have any privacy,there are occasions when customers pass the TimberRock entrance and use
his driveway to turn around,and the fence is not adequate to mitigate dust. There being no further
comments, Chair Geile closed public testimony.
Mr.Aragon stated he has complied with the Stipulation Order and the restricted hours of operation,
which were 9:00 a.m.to 5:00 p.m.,Monday through Friday,9:00 a.m.to 3:00 p.m.on Saturday,and
closed on Sunday. He stated he agreed to abide by the Stipulation; however, he indicated those
hours were not conducive to the business needs. He further stated there are issues of liability for
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the road, regardless of the outcome of the lawsuit. Mr.Aragon stated purchasing a property with
a jointly-owned road automatically creates a liability,and he does have insurance to protect him in
the event of a lawsuit following an accident. (Changed to Tape#2006-06.) He stated he takes the
maintenance of the road very seriously and he has been able to keep his business alive by being
an honorable business person. He stated he cares for the needs of his neighbors and intends to
operate in a manner that can be respected in Weld County. Responding to Commissioner Jerke,
Mr.Aragon stated Development Standard#20 requires the application of dust suppressant twice
a year or as determined by the Department of Public Works. He stated he has applied dust
suppressant three time since 2004, and he is agreeable to placing suppressant two times a year.
Commissioner Jerke suggested making two applications a minimum, rather than constantly
checking with the Department of Public Works. In response to Chair Geile, Mr.Aragon stated the
application reflects the requested hours of operation as 9:00 a.m. to 6:00 p.m., Monday through
Saturday,and from 9:00 a.m.to 5:00 p.m.on Sunday. He further stated he understands the Traffic
Study on Weld County Road 17 will need to be completed and submitted to the City of Greeley
which has jurisdiction, and the culvert west of his access will be extended to accommodate two-
lane traffic.
Mr.Zier explained Ms.Weinmeister conducted her traffic study a few hours at a time,for a total of
29 hours spanning over a month. He stated the joint owners of the road did make an effort to
participate in a Road Association,and following various revisions,Mr.Aragon agreed;however,the
neighbors did not want to withdraw their opposition to the Use by Special Review Permit. He
clarified the Road Association was one point of an eight point Settlement Agreement, which the
applicant approved,and his neighbors did not. He stated the neighbors urged the courtto partition
the road in an effort to reduce liability; however, today's testimony indicated they now feel it has
increased their liability. Mr.Zier submitted the plaintiffs'Supplemental Brief regarding Co-Tenant
Liability,marked Exhibit CC,and stated this area is in the A(Agricultural)Zone District,which does
allow this type of use through a Use by Special Review Permit. He further stated the site is
compatible with the uses to the east and south, and the applicant has paid significant amounts of
money and continues to work with County staff to mitigate the concerns of the remaining four
neighbors. He stated other landscaping operations have not been required to mitigate to the extent
of this applicant, and the applicant did not agree to the terms of the Stipulation Order on a
permanent basis. He stated following significant discussion by the Planning Commission, it was
determined that the hours of operation proposed by staff are appropriate. Responding to Chair
Geile, Mr. Zier stated the applicant is still agreeable to a Road Association.
Ms.Martin stated the application indicates the proposed hours of operation during the peak season,
and staff proposed the hours of operation be from March 15,to November 15,of any calendar year.
She stated the Planning Commission amended staffs recommendation to allow operations
year-round. She stated based on the court order,Condition of Approval#1.H.5 should be amended
to state, "The sixty(60)foot access easement to be surveyed by Chuck Jones of King Surveying,
based on Judge Hays'Court Order of January 27, 2006, be reflected on the plat." Commissioner
Jerke suggested modifying Development Standard#20 to add the words"more often"to imply that
dust mitigation shall be done a minimum of twice a year. Responding to Chair Geile, Mr. Carroll
stated he does want the applicant to extend the culvert to accommodate two-way traffic,which is
addressed in the Conditions of Approval and Development Standards. Ms. Martin stated the
applicant will need to contact the City of Greeley regarding the proposal for off-site signage within
2006-0096
PL1684
HEARING CERTIFICATION - JESS ARAGON, DBA TIMBERROCK LANDSCAPE (USR#1495)
PAGE 10
the right-of-way for Weld County Road 17. Commissioner Vaad suggested that not be included in
the Board's Resolution, since that requirement is under the jurisdiction of the City of Greeley.
Mr. Morrison stated the road access easement attempts to address liability issues, and a Road
Association would provide an additional level of protection; however, he is not comfortable with
requiring a Road Association as a Condition, since the parties have not been able to reach an
agreement in the past and may result in a third-party veto power. Commissioner Jerke stated he
is comfortable with relying on the court's instruction to do an easement, and it should be up to the
parties to pursue a Road Association if they desire. Commissioner Vaad commented the
landscaping business does carry general liability coverage to cover any additional risk posed by the
business. He further stated the hours of operation listed in Development Standard #25 will be
determined by the market,therefore, he supports keeping the hours as proposed. Commissioner
Jerke concurred. In response to ChairGeile regarding the noise levels allowed under Development
Standard #7, Ms. Davis stated the Commercial Zone District is permitted 55 to 60 decibels
depending on the time of day,which is measured 25 feet from the property line. She stated staff
attempts to take noise readings at the noisiest time, and 60 decibels is comparable to a running
cloths dryer, an active business office, or conversational speech, and 70 decibels is similar to
freeway traffic, or a noisy restaurant.
Commissioner Vaad stated at the last hearing the case was continued to wait for a determination
on whether the applicant had a right to use the road. He stated the pictures provided by the
applicant show the improvements to the facility and road, and any impacts from fugitive dust and
noise will be addressed by the Development Standards. He stated the site is an agricultural area
with residences, not a residential area with special agricultural uses. He further stated the
properties are held by people that are not farming, and he supports the application, with the
Conditions of Approval and Development Standards, which will adequately mitigate impacts.
Commissioner Masden concurred with Commissioner Vaad,and stated the matter was continued
until the court made a determination regarding the road. He stated he agrees with the staff and
Planning Commission recommendations regarding the hours of operation, since the area is
changing. He further stated the dust and noise mitigation measures are being completed and will
likely be continued in accordance with the Conditions of Approval and Development Standards;
therefore, he supports the application.
Commissioner Jerke concurred and stated the applicant has done a great job with the appearance
of the property. He stated the changes in the area will have a variety of impacts on the existing
residents; however, this facility will likely be an attractive impact.
Commissioner Long stated this proposal started off on the wrong foot without the appropriate
permits; however, that is not one of the criteria to be considered, although it does weigh on the
issue. He stated at the Substantial Change Hearing he did not feel the rumored changes regarding
the auto mall were finalized or substantial enough to meet the criteria; however,it is now apparent
those changes are taking place,and this does appear to be compatible with the existing and future
uses in the area. He stated if the application had started under the appropriate process,there may
not have been so much opposition; however, as the process has evolved, the application has
2006-0096
PL1684
HEARING CERTIFICATION - JESS ARAGON, DBA TIMBERROCK LANDSCAPE (USR#1495)
PAGE 11
improved. He suggested the parties involved begin to look at the potential for the area rather than
the negative issues expressed in the past.
Mr. Morrison stated Mr.Zier indicated from the audience that the applicant is in agreement with the
two modifications proposed by staff for Condition of Approval #1.H.5 and Development
Standard #20.
Commissioner Vaad moved to approve the request of Jess Aragon,dba TimberRock Landscape,
for a Site Specific Development Plan and Use by Special Review Permit#1495 for a Business
Permitted as a Use by Right or Accessory Use in the Commercial Zone District (landscape
materials yard)in the A(Agricultural)Zone District,based on the recommendations of the Planning
staff and the Planning Commission,with the Conditions of Approval and Development Standards
as entered into the record. His motion also included modifying Condition of Approval#1.H.5 to state,
"The sixty(60)foot access easement to be surveyed by Chuck Jones of King Surveying, based on
Judge Hays'Court Order of January 27,2006,be reflected on the plat,"and modifying Development
Standard#20 to state,"The applicant shall apply dust suppression chemical(magnesium chloride
or calcium chloride)on the haul road between Weld County Road 17 and the entrance to the site
no less than twice a year,or more often, as determined by the Department of Public Works."The
motion was seconded by Commissioner Masden, and it carried unanimously. There being no
further discussion, the hearing was completed at 3:45 p.m.
This Certification was approved on the 13th day of February 2006.
was APPROVED:
OARD OF UNTY COMMISSIONERS
ELD CO ,<TY, COLORADO
1161
ATTEST: � L__�{' �..I��I
�
tie, Chair
Weld County Clerk to the Bo. ; ( 1 V'�� �y ) T°cmce °eel
rl David E. Lon Pro-Tem
BY: ( Kt
6( C i Iv/
g
De�i ty Cle to the Board ,J '1 �Y7-riz,
W' ' m Jerke �^
TAPE #2006-05 and #2006-06 `,� cb l,1a
Robert D. Masden, U f,
DOCKET#2005-13.A f// /
Glenn a s
2006-0096
PL1684
EXHIBIT INVENTORY CONTROL SHEET
Case USR#1495 - JESS ARAGON, dba TIMBERROCK LANDSCAPE
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 02/01/2005)
D. Clerk to the Board Notice of Hearing
E. Planning Staff Certification and 2 Photos of sign posting
F. Applicant Request for Court Reporter confirmation,
dated 02/11/2005
G. Craig Coburg Telephone transcript of opposition, dated
02/15/2005
H. Planning Staff Initial Pleading submitted by Thomas
Hellerich on behalf of Weinmeister,
Hartshorn, Shinner, and Weiler, Case
#2005CV265, dated 02/09/2005
Garry Frederickson Letter of Opposition, dated 02/16/2005
J. Clerk to the Board 2 transcripts of 02/16/2005 Proceedings and
cassette of Work Session
K. Applicant Letter re: Sale of Property to Jess Aragon,
dated 03/28/2005
L. County Attorney Filing Summary, dated 05/10/2005
M. Lyn Martin Letter of Support, dated 10/13/2005
N. Clerk to the Board Notice of Hearing, dated 09/30/2005 (Filed
under Legals)
O. County Attorney Copy of Newspaper Article
P. County Attorney Faxed copy of Court Final Order, dated
01/31/2006
Q. Michael Brouwer E-mail of Support, dated 02/07/2006
R. Jeffrey Richards E-mail re: Clients and attendance, dated
02/07/2006
S. Stan Liss Letter of Support, dated 02/07/2006
T. Applicant Order for Partition, Amended Complaint,
and Answer of Defendant re: Case No. 05
CV 265
U. Applicant Booklet of photos and information
V. Matt Delich Traffic County Comparison Summary, dated
10/15/2004
W. Jeffrey Richards Resume for Richard Lewis, Forensic
Document Examiner, fax dated 01/11/2006
X. Jeffrey Richards Conclusion and Opinion Findings of Richard
Lewis, fax dated 01/26/2006
Y. County Attorney Westlaw Brief re: Lazy Dog Ranch v.
Telluray Ranch Corporation
Z. Kathy Weinmeister Packet re: Road, Culvert, Dust, and Vicinity
AA. Cindi Rubiano Two oversized maps/photos
BB. Brad Weiler 15 Photographs
CC. Applicant Plaintiffs' Supplemental Brief re: Co-Tenant
Liability, Case No. 05 CV 265
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