HomeMy WebLinkAbout20050503.tiff HEARING CERTIFICATION
DOCKET NO. 2005-13
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 - MARCELLE GEUDNER, C/O JESS ARAGON
A public hearing was conducted on February 16, 2005, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner M. J. Geile, Pro-Tem
Commissioner David E. Long
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
Attending Court Reporter, Kristy Hughes, Wilson George Court Reports, Inc.
The following business was transacted:
I hereby certify that pursuant to a notice dated January 28, 2005, and duly published February 2,
2005, in the Fort Lupton Press,a public hearing was conducted to consider the request of Marcelle
Geudner, do Jess Aragon, 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. Lee Morrison,Assistant
County Attorney, made this a matter of record. Michelle Martin, Department of Planning Services,
presented a brief summary of the proposal and entered the favorable recommendation of the
Planning Commission into the record as written. She gave a brief description of the location of the
site, and stated the proposed use appears to be compatible with the surrounding land uses. Ms.
Martin stated 11 referral agencies reviewed this proposal,ten responded with comments that have
been addressed in the Conditions of Approval and Development Standards,and staff did not receive
a response from the Colorado Division of Wildlife. She stated staff has received several letters from
surrounding property owners expressing concern with noise,dust,traffic,and compatibility with the
surrounding area. She submitted a copy of a District Court Initial Pleading of Complaint, marked
Exhibit H, regarding use of the access road. In response to Commissioner Masden, Mr. Morrison
stated the complaint was filed by Garry and Kathleen Weinmeister, Harry Hartshorn, Charles and
Tina Shinner,and Thomas Weiler,against Marcelle Geudner and Cozy Cow Dairy,LLC. He stated
the relief they ask for under Rule 57 is for the court to declare the rights of the parties;declare that
the roadway is 60 feet; require TimberRock to move its attempted modifications to the roadway and
return it to the prior width and condition; enter an order establishing the rights, duties, obligations,
and use of the roadway by and among the adjacent property owners;and establish the obligations
for payment of costs and expenses for maintenance of the roadway. He stated the applicants have
not had an opportunity to respond since they were provided with a copy just prior to this hearing.
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He further stated the access has been discussed several times at previous hearings regarding this
proposal, the Board of Commissioners is not in a position to make a final determination for use of
the road,and in the absence of a court order stating the applicant is not allowed to use the road,he
sees no reason why the Board cannot proceed. He stated the Pleading does not request that the
applicant not use the road, and it appears the primary issue is the condition of the road. He stated
that issue should not prevent this hearing process from proceeding because there is no court order
or injunction on the matter. He stated the Board may wish to include some different conditions to
address any future court action; however, that does not preclude them from proceeding. Chair
Jerke questioned whether the Board can conditionally grant a use based upon a future action of the
court. Mr. Morrison reiterated the issue would be addressed as a Condition of Approval, and if the
court rules in favor of the Plaintiffs and there is no access for a commercial use,then the proposed
use would not be able to proceed. Mr. Morrison stated it does pose a timing issue because even
if the Use by Special Review Permit is approved today,the condition pending the outcome of a court
finding may prevent the landscaping business from commencing this season. Responding to
Commissioner Long,Mr. Morrison stated although it is possible that the Board's decision may have
some bearing on how the road is addressed, the court will rule as it feels appropriate rather than
basing its decision on the action of the Board. Commissioner Geile commented this is not a typical
case because the use existed prior to any proper authority or permits and there have been other
court injunctions regarding this property. He expressed concern with proceeding without having all
of the issues resolved. Mr.Morrison stated there have been other cases in which access has been
contested; however, this is a different situation because the Pleading is contesting the manner of
treatment of the access, not whether the applicant should be able to use the access. He further
stated civil proceedings ideally take three months to complete; however,it is more likely to take six
to nine months to get a decision from the trial court. Chair Jerke commented the applicant has
always been out there at their own risk,and this court matter poses one additional risk as to whether
the Board will proceed today or wait for a court matter to be resolved. Commissioner Vaad stated
Condition of Approval#1.J of the Draft Resolution requires approval from the Department of Public
Works regarding the widening of the road. Mr. Carroll stated his referral response dealt with the
narrow portion of the access where it goes down to a one-way lane crossing the drainage, which
poses a safety concern. He stated there should be a two-way drive extending to the west property
line. Commissioner Vaad stated it appears the applicant was responding to something the
Department of Public Works was requiring them to do, which is now being contested by the
neighbors.
Rick Zier, attorney, represented the applicant and stated they have not been served with legal
documents or had a chance to review the complaint; however,the Plaintiffs'attorney is present to
address the matter. Mr.Zier stated the access was discussed at the last hearing 18 months ago,
and he expressed concern with a complaint being filed on the eve of this procedural process. He
stated the applicant is a co-owner of the access, not a co-easement holder. He clarified the access
is not an easement,rather,the rights of all the owners are significantly more than an easement. He
stated if the board precedes today and the request is approved,the court may later modify or limit
the access, and the applicant will be subject to that order regardless of what was allowed by the
County. He stated this petition should not cause a total inaction of the Board pending the action of
another body,and having to wait six to nine months would be very problematic for the applicant and
the timing of the business.
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Chair Jerke stated he would like to proceed with the hearing despite the pitfalls,which will be for the
applicant to address. Commissioner Geile stated he feels this is a huge problem that needs to be
resolved, therefore, he would prefer to continue the matter to a future date. Responding to Chair
Jerke, Mr. Morrison suggested making a motion to continue the matter for three months to be listed
on the Board's regular 9:00 Agenda for the purpose of scheduling a new hearing date if the court
matter has been resolved. In response to Commissioner Geile, Mr. Morrison stated the access
issue filed with the court was not considered by the Planning Commission because it is dated
February 9, 2005. Commissioner Geile moved to continue the request of Marcelle Geudner, do
Jess Aragon,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,to be listed on the Board's regular
9:00 a.m. Agenda for the purpose of scheduling a new hearing date if the court matter has been
resolved. The motion was seconded by Commissioner Long. Commissioner Vaad stated he does
not support the motion because the changes that are being contested were required by County staff,
therefore, he wants to proceed. He stated the Board may also consider a lesser width than what
is being requested by staff, while keeping an adequate width to ensure safety and keep some
access. Commissioner Long noted the Board has not taken a formal action or adopted the
Conditions of Approval recommended by staff, therefore, any modifications were done at the
applicant's risk. Upon a call for the vote, the motion carried three to two, with Chair Jerke and
Commissioner Vaad opposed. In response to Mr.Morrison,Ms.Gesick stated three months would
be May 18,2005. Mr. Morrison suggested the matter of scheduling a future hearing date should be
a 9:00 a.m. Planning item. In response to Commissioner Geile, Mr. Morrison stated the rules of a
quasi-judicial process still apply and the Board should not hear testimony regarding this matter.
There being no further discussion, the hearing was completed at 11:00 a.m.
This Certification was approved on the 23rd day of February 2005.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
L® WELD COUNTY, COLORADO
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William H. J e, Chair
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