HomeMy WebLinkAbout20042917 BEFORE THE WELD COUNTY, COLORADO, PLANNING COMMISSION
RESOLUTION OF RECOMMENDATION TO THE BOARD OF COUNTY COMMISSIONERS
Moved by Doug Ochsner,that the following resolution be introduced for approval by the Weld County Planning
Commission. Be it resolved by the Weld County Planning Commission that the application for:
CASE NUMBER: SCH-25
APPLICANT: Marcelle Geudner/Jess Aragon
PLANNER: Sheri Lockman
LEGAL DESCRIPTION: Pt NE4 Section 8, T5N, R67W of the 6th P.M., Weld County, Colorado.
REQUEST: A Review of a Previously Denied Application for Land Use(Use by Special
Review 1430 for a Landscaping Materials Yard)and request for Substantial
Change Determination
LOCATION: 753 feet west of CR 17 and 1/2 mile north of State Highway 34.
be recommended favorably to the Board of County Commissioners for the following reasons:
1. It is the opinion of the Planning Commission that the applicant has demonstrated that a substantial
change has occurred and recommends approval of the applicant's request.
2. The Weld County Board of County Commissioner's Resolution recorded October 17, 2003 denied
the Applicant's Use by Special Review Request (USR-1430), for the following reasons:
A. The Proposal is not consistent with Section 22-2-170 C (C.Goal 3), states "address the
compatibility of commercial land uses with adjacent land uses."The Conditions of Approval,
Design Standards and Operation Standards cannot ensure that incompatibilities regarding
traffic, dust, noise and visual aspects of the site will be adequately mitigated.
B. The proposed use is inconsistent with Section 22-3-140.6.1 (T.Policy 4.1) which states
"establish policy standards for the regulation of accesses to streets and highways from
adjacent land uses and intersecting roads."The access road serving the site was created by
Quit Claim Deed on February 19,1981,and is a legal access; however, it is the opinion of the
Board of County Commissioners that the private nature of the road will create future
problems with access for a commercial business.
C. The uses which will be permitted will not be compatible with the existing surrounding land
uses. North of the site is a pasture with a home within 400 feet.A single family residence lies
within close proximity to the west of the site. Although Conditions of Approval and
Development Standards were proposed to ensure that storage and parking areas were
adequately screened from the adjacent properties, it is the opinion of the Board of County
Commissioners that the noise, dust, and traffic associated with the business cannot be
adequately mitigated.
D. The proposed Design Standards (Section 23-2-240, Weld County Code), Performance
Standards (Section 23-2-250, Weld County Code), proposed Conditions of Approval and
development Standards do not ensure that there are adequate provisions for the protection
of health, safety, and welfare of the inhabitants of the neighborhood and County. The past
performance of the applicant, as evidenced through the sudden stockpiling of materials onto
the property without going through the application process; an executed lease which
addresses the lack of a permit to protect the property owner, who is a co-applicant; and a
pole barn currently being constructed without proper permits,suggests that the applicant will
have difficulty complying with the proposed Design Standards (Section 23-2-240, Weld
County Code), Operation Standards (Section 23-2-250, Weld County Code), Conditions of
Approval and Development Standards, and such noncompliance will adversely effect the
health, safety and welfare of the inhabitants.
3. Pursuant to Chapter 2, Article II, Section 2-3-10 of the Weld County Code, the Board of County
Commissioners shall consider the applicant's request for a Hearing of Substantial Change and
whether within the concept of a new application, the facts and circumstan of which are
substantially changed from the initial application: EXHIBIT
2004-2917 1 3
Sc.“ tas
Resolution SCH-25
Jess Aragon
Page 2
Criteria 1. -- Has the land-use application substantially changed? (e.g., substantial changes in lot
size or density, in internal or external roads, or, in the case of a rezoning, in the uses proposed)
The denial of Use by Special Review # 1430 (USR-1430) was in part based on incompatibilities
specific to traffic, dust, noise and visual aspects of the site.The applicants have included additional
screening and landscaping to mitigate the visual impact to the surrounding properties.Dust mitigation
will be accomplished by applying magnesium chloride to the access road and gravel or crushed
concrete to the parking area and on bare areas in the site. Further, the site plan has been altered to
lessen the impact from dust for the residence to the west.
Criteria 2.—Have the surrounding land-uses substantially changed? (e.g.,has the adjacent land use
changed during the period of time since the last application such that what would be compatible with
the adjacent use has changed)
The application indicates two surrounding land uses have substantially changed, Cozy Cow Dairy to
the east of the site and SouthGate Ill Commercial Annexation to the south of the site. Planning Staff
does not agree that the changes to Cozy Cow Dairy or the SouthGate Ill Commercial Annexation are
substantial changes.
The existing uses at the Cozy Cow Dairy described in the application have been determined to be
uses allowed by right and in compliance with Non-Conforming Use#347 by the County Attorney's
Office. Possible future uses are not applicable to this application.
As indicated in a Town of Windsor referral dated July 22, 2004, the SouthGate III Commercial
Annexation has not been finalized by the Town and when finalized the portion adjacent toTimberRock
will not be developed until sanitary sewer is available to the site. Further,the Town has indicated that
the TimberRock site is depicted as High Density Estate Single Family Residential on the Town's Land
Use Plan Map.The SouthGate IIl Commercial Annexation will not change this designation. The Weld
County Board of County Commissioner's Resolution for USR-1430 called out incompatibilities with
property to the north with a pasture and home and to the west with a single family residence. The
property to the south was not included in the resolution.
Criteria 3. — Have applicable provisions of the law substantially changed? (e.g., the applicant is
proposing using a different procedure so a different set of criteria apply or the applicable ordinance
has been amended by the Board so the criteria have substantially changed)
This criteria is not applicable to this case.
Criteria 4. — Within the concept of rehearing the previously denied application, is there newly
discovered evidence that the applicant could not have discovered with diligent effort at the time of the
original application ?
The applicant has included the SouthGate Ill Commercial Annexation and plans for retail sales at
Cozy Cow Dairy as newly discovered evidence. As indicated in comments for Criteria 2, Planning
Staff does not believe either establishes a substantial change and therefore their discovery should
not be considered a substantial change.
4. Weld County Planning Staff has determined that the submitted information does meet the intent of
a substantial change as outlined in Chapter 2,Article II,Section 2-3-10 of the Weld County Code and
therefore should be allowed to submit the application discussed in the Substantial Change.
Resolution SCH-25
Jess Aragon
Page 3
Motion seconded by John Folsom
VOTE:
For Passage Against Passage Absent
Michael Miller
John Folsom
Bryant Gimlin
Bruce Fitzgerald
James Welch
James Rohn
Tonya Stobel
Chad Auer
Doug Ochsner
The Chair declared the resolution passed and ordered that a certified copy be forwarded with the file of this
case to the Board of County Commissioner's for further proceedings.
CERTIFICATION OF COPY
I,Voneen Macklin, Recording Secretary for the Weld County Planning Commission,do hereby certify that the
above and foregoing resolution, is a true copy of the resolution of the Planning Commission of Weld County,
Colorado, adopted on September 7, 2004.
Dated the 7'" of September, 2004.
1 ( Y L
Voneen Macklin
Secretary
9 _ 7 - may
asked about the showroom and the number of customers per day and week? Rick Torrez, owner of the
business, added that there have been approximately six people since July. Mr. Folsom asked if the hours of
operation will be suitable. Mr.Torrez stated the operation shuts down between January and February but the
hours are fine. Mr. Folsom asked about the number of employees and if four was adequate. Mr. Torrez
stated that the need varies based on the job but the maximum needed would be six total.
The Chair asked if there was anyone in the audience who wished to speak for or against this application. No
one wished to speak.
Don Carroll added that Public Works would like to have a non exclusive right of way agreement for CR 48 for
future use.
John Folsom moved that Development Standard#23 change the number of employees from 4 to 6. James
Rohn seconded. Motion carried
John Folsom moved that Case USR-1485, be forwarded to the Board of County Commissioners along with
the Conditions of Approval and Development Standards with the Planning Commissions recommendation of
approval. Chad Auer seconded the motion.
John Folsom commented that he typically does not like commercial or industrial uses in the agricultural zone.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. John
Folsom,yes;James Welch,yes; Michael Miller,yes;James Rohn,yes;Tonya Strobel,yes; Chad Auer,yes;
Doug Ochsner, yes. Motion carried unanimously.
CASE NUMBER: SCH-25
APPLICANT: Marcelle Geudner/Jess Aragon
PLANNER: Sheri Lockman
LEGAL DESCRIPTION: Pt NE4 Section 8, T5N, R67W of the 6th P.M.,Weld County, Colorado.
REQUEST: A Review of a Previously Denied Application for Land Use(Use by Special
Review 1430 for a Landscaping Materials Yard)and request for Substantial
Change Determination
LOCATION: 753 feet west of CR 17 and 1/2 mile north of State Highway 34.
Sheri Lockman,Department of Planning Services presented Case SCH-25,reading the recommendation and
comments into the record.The Department of Planning Services is recommending approval of the application
with the approval being based on Criteria 1. Criteria 1 states -- Has the land-use application substantially
changed? (e.g., substantial changes in lot size or density, in internal or external roads, or, in the case of a
rezoning, in the uses proposed).The applicants would like to be considered based on Criteria 2 and Criteria
4 while staff does not agree. Criteria 2 sates--Have the surrounding land-uses substantially changed? (e.g.,
has the adjacent land use changed during the period of time since the last application such that what would
be compatible with the adjacent use has changed).
Doug Ochsner asked for clarification on the Criteria. Ms.Lockman indicated the applicant has asked for three
criteria to be heard while staff believes they have met Criteria 1 concerning the substantial change in the land
use application.
John Folsom asked if Criteria 1 constitutes a substantial change. Mr. Folsom added the comments address
dust mitigation and visual impacts but do not address traffic. Does Planning staff believe there has been a
substantial change in traffic? Ms. Lockman stated staff is only reviewing the information the applicant has
requested,traffic was not a submitted subject. Mr. Folsom added the Board of County Commissioners was
not specific on the grounds for denial. They used the Health safety and welfare and would it be correct in
saying there was no substantial change in traffic therefor no substantial change had taken place. Mr.Morrison
stated the purpose of the proceeding goes back to a legal concept that the applicant cannot get a decision
with an application of the same set of facts. This proceeding is to establish that the same application is not
being re-submitted. The concept has been added that the applicant should address issues identified by the €*1 R p
Board of County Commissioners. Mr. Morrison added the applicant must show the application is different g,;
either externally or internally. The applicant is not obligated to address every issue that goes into a new
application to determine a substantial change has been made. The Planning Commission is not limited to
staffs recommendation but is limited to what the applicant has requested. Mr. Folsom asked if it has not been
established by applicant or otherwise that traffic changed then a substantial change has not been made. Mr.
Morrison stated no, it is a matter of a different application but it does not have to be different in every aspect.
Michael Miller asked for clarification on what staff considers a substantial change. Mr. Miller indicated that
it appears the applicant has done what they had projected to do in the original application,what is substantially
different? Ms. Lockman indicated they have revamped the site by moving materials to assist with mitigation
from the neighbors for example dust mitigation. The applicant has done additional screening and landscaping
beyond what was called for or required in the original application.
James Rohn asked if the applicant has re-arranged how the lot sits. Ms. Lockman provided maps of what
the lot looked like before.
Rick Zier, attorney,provided clarification on the project. This is a substantial change process not a review of
the future proposal. There have been site improvements addressing the concern for dust and screening. The
applicant has tried to add things in response to the objections. Mr. Zier discussed additional information
provided by the applicant at today's hearing. The submitted proposal is much more detailed than the original.
The applicant has attempted to mitigate some of the concerns brought forth in the previous hearings. There
have been several changes to address the concerns of dust mitigation, fencing, erosion control, drainage,
parking, placement of building and parameter screening. There have been changes in the surrounding land
uses such as the addition of retail at Cozy Cow Dairy but no land uses have changed. South of this property
to Hwy 34 will be a commercially developed area. The land uses have not occurred but will eventually occur
and this proposal will be compatible with those. The applicant is aware the adjacent land use will change and
is trying to plan for that with landscaping and fencing on the south side. This should be newly discovered
evidence with those land uses to the south. This would be enough evidence for a substantial change. This
application is more sensitive to the neighbors.
Michael Miller asked about the land uses to the south and it being difficult for the Planning Commission to be
able to put weight on that. Planning Commission must take into consideration that which has already occurred
not what could occur,there have been times when plans do not occur. The annexation needs to be done and
development occurring. Mr. Zier added that this is at the least newly discovered evidence.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
Brent Eskew, neighbor to the north, indicated there is no change of land use. The Windsor annexation is not
a sure thing. Staff is recommending approval because of dust mitigation and visual screening. The dust
mitigation is for the roadway which is insignificant compared to the business use. The screening and visual
mitigation was part of the original resolution. There is no way the noise, dust and traffic can be adequately
mitigated and there has been nothing done to mitigate them either. The nature of the business creates noise
while the dust will always be there. The traffic has not changed, the business continues to advertised.
Planning Commission must consider the application and the prior history of the applicant. There has been
a judgement to cease and desist from accepting landscape materials in the conducting of the business. The
substantial change has not been addressed from the Board of County Commissioners resolution for noise,
dust and traffic.
Deanne Fredrickson, neighbor, indicated concerns for the project. There have been improvements to the
property to make it aesthetically pleasing but those improvements were made after the special review was
denied. The conditions have not changed it just is more pleasing to look at. The Gateway annexation could
be substantial only if the access was gained for this proposal, the access will never come through the
commercial center. The compatibility issues have to do with the surrounding properties. The access drive
would need to be addressed in the substantial change. The driveway is narrow and with the increase in traffic
the road has become more congested. This applicant has not obtained permission from the other owners of
the road to have all his friends, business associates and deliveries use the roadway. A new dairy store has
opened but the use has not changed. The dairy accesses off CR 17 and the number of trucks and patrons
is substantially less. A business of this type on a public road is not safe this type of business needs to be on
a collector road or better. The neighborhood would not mind change but not this type of change. The
operation has been done for two years with no benefit to the county. If it is considered a substantial change
just to re-arrange the site then a yes vote is needed but if not vote no.
Craig Colvert,neighbor, indicated concerns with a business with no permit and approval. The dairy has been
there from the beginning. There are concerns with the traffic. There has been a substantial change but only
in a negative effect according to the traffic. The land uses have not changed.
Garry Weinmeister, neighbor, indicated concerns. There has not been a substantial change in the business,
the original submittal was for landscape materials and it will continue to be so. A new site plan does not
constitute a substantial change. Traffic is a big concern with the area and dust is still a problem but not as
large as the noise. No change occurred.
The Chair closed the public portion of the hearing.
Lee Morrison handed out copies of the Weld County Code dealing with the provisions for a substantial
change. Mr. Morrison added that there was an order stipulating to and entered by Judge Klein which
precludes new material being brought in from wholesalers to then be sold does not preclude until Mid October
the retailing. The order pertains to new material coming in not the sale of existing materials.
Rick Zier,attorney,added that once the applicant submits the USR there will be a larger discussion on traffic
with the correct facts and figures. The application is a basis for a substantial change,this applicant is willing
to be limited to the proposed use and site plan submitted. Sound and line of site has been significantly
reduces at the parameters of the site. At the USR stage detailed information will be submitted addressing all
issues of concern. Dust mitigation has been a large concern that has been dealt with not only for the
surrounding property owners but for patrons as well. The dairy and agricultural property contribute to the dust
in the area. The current access is jointly owned and this applicant has improved a portion of that road. This
is a better application with better mitigation.
Michael Miller asked Mr. Morrison about the changes that have been made to the site and rather those
changes make an impact on the issues that caused it to be denied in the original process? Or is just the
existence of the change adequate reason for substantial change? Mr. Morrison stated that Planning
Commission does not have to make a finding that its effective in addressing just the fact the applicants shows
a change that attempts to address an issue is what to base the decision on.
Chad Auer asked Mr. Morrison about the original Board of County Commissioners resolution stating
incompatibility regarding traffic, dust and noise. Are property improvements for an originally denied plan
considered as a substantial change. Mr. Morrison stated that is part of the decision that needs to be
determined. The applicant has stated things on site have been changed and more detail has been made or
improvements that were in concept form at the first application. There was a need for a dust mitigation plan
and the applicant has actually done something. There are possible alternatives either change in the layout
or the applicant has done something to address concerns, could be considered substantial change.
Michael Miller indicated it comes down to what each Planning Commission member determines to be
substantial. Mr. Miller does not feel that the things that have been done are going to mitigate the problems
but it is obvious changes have been made with the intent to mitigate those problems. This would qualify as
substantial change and it would be more beneficial to gain additional information in another hearing format
adverse to the substantial change process.
Tonya Strobel added that changes are a representation of the case being approved and moving forward as
normal. The changes are cosmetic not fundamental. The cosmetic changes do not substantiate the
substantial change.
James Rohn added the Board of County Commissioners voted against the proposal for the health safety and
welfare of the residents. Mr. Rohn added the internal roadway has been widened but there has been a
substantial change at the intersection. This has not mitigated much of the dangers of the intersection. The
lot is well maintained but the amount of traffic coming in will be a burden. This is not a substantial change.
Doug Ochsner added the surrounding land uses does give way to new information. There is nothing
technically approved but there is a concept for the idea. There is a semi truck on Hwy 34 advertising prime
commercial real estate. That is not selling the land as agricultural or residential, the intent is for this to be
commercial. Mr. Ochsner added he feels this area is changing and the surrounding land use needs to be
reviewed.
Chad Auer commented the Planning Commission must keep in mind that if the business is successful the
issues of dust, traffic and noise will escalate. The question is rather site improvements fit into a substantial
change? Mr. Ochsner added that is something that needs to be addressed at a later date. Mr. Miller added
the key issue is rather application addressed the initial issues.
John Folsom added the applicant has worked to make the site better but it comes down to the personal
definition of what a substantial change is. Substantial change is in the eye of the beholder and subjective.
Mr. Folsom quoted "Conditions of Approval, design standards and operation standards cannot ensure that
incompatibilities regarding traffic,dust,noise and visual aspects of the site can be adequately mitigated" He
leans towards approving the substantial change and letting the Board of County Commissioners decide rather
it is substantial enough.
James Rohn moved SCH-25 be forwarded with the Planning Commission recommendation for denial. Tonya
Strobel seconded.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. John
Folsom, no; James Welch, no; Michael Miller, no; James Rohn, yes; Tonya Strobel, yes; Chad Auer, yes;
Doug Ochsner, no. Motion failed.
Doug Ochsner moved that Case SCH-25, be forwarded to the Board of County Commissioners with the
Planning Commissions recommendation of approval. John Folsom seconded the motion.
The Chair asked the secretary to poll the members of the Planning Commission for their decision. John
Folsom, yes; James Welch, yes; Michael Miller, yes; James Rohn, no; Tonya Strobel, no; Chad Auer, no;
Doug Ochsner, yes. Motion carried.
Meeting adjourned at 3:00 p.m.
Respectfully submitted
Voneen Macklin
Secretary
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