HomeMy WebLinkAbout20040277.tiff MINUTES OF THE WELD COUNTY BOARD OF ADJUSTMENT MEETING
Thursday, January 8, 2004
A regular meeting of the Weld County Board of Adjustment was held on Thursday, January 8,2004, in Room
210 of the Planning/Public Health Building, 1555 N. 17th Avenue,Greeley,Colorado. The meeting was called
to order by Chair Joseph Bodine.
Roll Call:
Don Beierbach - present
John Donley - present
Tony Evans - present
Syl Manlove - present
Mary O'Neal - absent
Larry Wilson - present
Eric Whitwood - present
Joseph Bodine - present ,
Associate Members: A
William Hansen - absent
Randy Peterson - absent
Michael Willits - absent
John Donley motioned to approve and waive reading of the minutes of the last regular meeting of the Weld
County Board of Adjustment held on October 9, 2003. Eric Whitwood seconded the motion. Motion carried.
Also Present: Monica Daniels Mika and Jacqueline Hatch, Weld County Department of Planning; Lee
Morrison, County Attorney; Pam Smith, Department of Public Health & Environment; Donita May, Secretary;
applicant Lawrence Archuleta and his representative, Loren Bley of Bley&Associates.
CASE NUMBER: BOA-1024
PLANNER: Jacqueline Hatch
APPLICANT: Irma Archuleta & Enrique Blanco
REQUEST: Variance from the public sewer & water requirements in the R-5
(Mobile Home Residential)Zone District
LEGAL DESCRIPTION: Lot A, Southgate Subdivision, Section 22, T4N, R66W of the 6th
P.M., Weld County, Colorado
LOCATION: North of and adjacent to CR 42; east of and adjacent to Hwy 85
Jacqueline Hatch,Weld County Department of Planning Services,presented case BOA-1024,a variance from
the public sewer & water requirements in the R-5 (Mobile Home Residential) Zone District. Ms. Hatch
provided the board with revised information regarding the water tap,which could be provided by Central Weld
County Water District when tap fees were received. Ms. Hatch said that the applicants were requesting a
variance from the required public sewer to allow for the two existing mobile homes on the property to remain.
This variance was a condition for a re-subdivision application. The first home was permitted prior to Weld
County zoning records and in 1995 the applicant had replaced this home with another. In 2001,the applicant
applied for a primary dwelling unit on the property, no certificate of occupancy was issued. In 2002, that
permit expired. This was when the violation process for the property began when staff determined an error
had occurred in the release of the 2001 building permits because the original dwelling unit had not been
removed, thus there were two homes on this property. Ms. Hatch continued by saying that the R-5 zone
district, section 23-3-150.B.1 of the Weld County Land Use Code, requires that the mobile home,
manufactured home,or single family dwelling shall be connected to and served by a public water system and
a public sewer system. The average lot size within the Southgate subdivision is approximately .7 acres.
Surrounding properties were residential to the north and east within the subdivision. Agricultural uses existed
to the south and west. Seven referral agencies reviewed the case. One referral agency, the Department of
Public Health & Environment, responded unfavorably to the application. Three other referral agencies
responded J and included conditions that have been addressed through development standards and conditions
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of approval. The Towns of Gilcrest and Milliken both had no concerns with the variance. No response was
received from the LaSalle Fire Protection District and no concerns had been received from the surrounding
property owners. Ms. Hatch closed by saying the Department of Planning Services recommended denial of
the request for the following reasons:
Section 23-6-40.C.1 — Special conditions and circumstances exist which are peculiar to the lot, structure or
building involved and which are not applicable to other lots, structures or buildings in the same zoning district.
Section 23-6-40.C.2—Literal interpretation of the provisions of this Chapter would deprive the appellant of
rights commonly enjoyed by other properties in the same zoning district under the terms of this Chapter.
Section 23-6-40.C.4 — The reasons set forth in the application and testimony justify the granting of the
variance, and the variance is the minimum variance that will make possible the reasonable use of the lot
building or structure.
Syl Manlove inquired if prior to 1995 there was not a record of a mobile home existing on the property? Ms.
Hatch replied that the subdivision was created in 1963 and one would assume that most of the homes were
put in place at that time. The most current records the county had for this location were from 1995 when the
applicant came in for a permit to replace an existing mobile home, though we knew there was a mobile home
at this location prior to that. The applicant had applied for and received a septic permit in 1982. Ms. Manlove
asked for clarification if in 2001 the applicants came in and applied for another permit? Ms.Hatch replied yes.
Joseph Bodine asked if the second building permit was issued in error, giving the applicants permission to
place the second mobile home? Ms. Hatch said there may have been some confusion on the applicant's part
as to whether the permit was to replace the original mobile home or to allow the placement of a second mobile
home on the property. There was no certificate of occupancy issued so the permit expired.
John Donley asked if the applicant was an owner or a tenant,who is living in each unit, and why Loren Bley
was associated with the applicant? Ms. Hatch replied that the 2000 permit was taken out by the Archuletas
and Mr. Bley had merely dropped off the application. Mr. Donley then inquired of Pam Smith, Department of
Public Health&Environment about a letter which said,"the proposal does not meet the overall density of one
septic tank per acre", when that rule was established, as well as whether it was in existence prior to 2001
when the second mobile home was placed on the property? Ms. Smith replied that the Department of Public
Health & Environment had a policy in place prior to 2001 where they recommended minimum lot sizes of one
acre if applicants were on community water and a septic system, and a minimum of two and one half acres
if applicants were on a well and a septic system. Ms.Smith said that information is documented in the County
Code and available to applicants. Mr. Donley also asked that if the board were to grant this application and
the applicant were to come back for a subdivision application,they would still have to adhere to the minimum
lot sizes of one acre if applicants were on community water and a septic system, and a minimum of two and
one half acres if applicants were on a well and a septic system? Ms. Smith said that was correct.
Ms. Manlove then asked for clarification as to the sizes of the lot in the subdivision as she had heard two
different sizes given. Ms. Hatch replied that the lots are seven tenths of an acre, except for the applicant's,
which is nine tenths of an acre.
Tony Evans asked Ms.Smith if there was any record of septic failures in the subdivision? Ms.Smith said she
knew of five in the subdivision that had been replaced since 1995. She added that these lots were very small
and with the outbuildings,fence lines, landscaping and utilities, it was very difficult to find space on the lot for
a leach field when septic systems needed replacing. This application would create two lots of less than one
half acre each, adding to the difficulty of locating septic systems on the properties. Ms. Smith said the
Department of Public Health & Environment had only one record for a septic system on the property in 1982
and she did not have any information regarding a system for the mobile home installed in 2001. Mr. Donley
asked Ms. Smith if there was reasonable expectation that other variances would become necessary if this
application were granted for the second home,and the land were divided equally? Ms.Smith replied yes.Ms.
Hatch then added that the applicant was planning to apply for a resubdivision for the property if the variance
is granted.
Mr. Bodine asked Ms. Hatch what exactly precipitated the request for the variance? Did the applicant come
forward first or did the county ask for removal of one of the homes due to an expired permit? Ms. Hatch
replied that the building permit expired, it was never finalized, and the applicants did not receive a certificate
of occupancy, therefore the home should be sitting vacant. She added that when the applicants came in to
renew their building permit the discrepancy was discovered and at that time the Department of Planning
Services tried to work out a way for the applicant to keep the two homes presently on the property. The
Department of Planning Services suggested they go before the Board of Adjustment to request a variance
from the public sewer requirement and then they would be eligible to apply for a resubdivision allowing them
to divide the lot into two lots.
Mr. Bodine called the applicant forward to address the board.
Loren Bley, Bley&Associates, 2020 Clubhouse Drive, Greeley, Colorado, represented the applicants. He
said that Mr.Archuleta presently resides in the mobile home on the north end of the lot,the other mobile home
has been abandoned for some time. The applicant's intent was to subdivide the three quarter acre parcel
into two, fifteen thousand square foot lots, for two private modular dwellings. Mr. Bley outlined briefly the
history of the subdivision which went back to 1963 and did not provide for a central sewer system at its
inception. He said the majority of the lots in the subdivision were six thousand square feet or less, with the
exception of the Archuleta parcel,which was considerably larger at fifteen thousand square feet. Mr.Bley said
the request was quite simple, and that a three quarter acre lot, according to the geo-technic report, can
support the requirements of the septic tank and leach fingers. He added that this lot was also not encumbered
with many of the encroachments of existing lots, due to its larger size. In closing, Mr. Bley urged the board
to grant the applicant's request as their intent was to ultimately improve the parcel they own.
Lawrence Archuleta,applicant,20035 Southgate Avenue,stepped to the microphone to answer questions for
the board. Mr. Donley asked Mr.Archuleta if,when he acquired the property, did he move the second mobile
home onto the property. Did he own the mobile home, rent it,what were the circumstances? Mr.Archuleta
replied that he had purchased the home from a man who has since moved out of state. There were two
homes on the property when he purchased it. He said he lived in one of the homes for two to three years
before removing it and applying for a permit to replace it with a new modular. The second home was put in
with the intent to house migrant labor but has sat empty, and for all intents and purposes, is gutted as it
contains no appliances etc. It was just an empty structure. A single family lives in the other modular. Mr.
Archuleta said there were two septic systems on the property,electricity and a water tap as well. Mr.Archulta
had a drawing indicating where the two modulars would be located upon resubdivision of the property. He
ended by saying that his own family would continue to occupy one of the homes and his brother-in-law and
his family would occupy the other.
Tony Evans asked Mr. Archuleta if he knew the locations of the two existing septic systems. He replied that
he knew exactly where they were on the property. Mr. Evans asked that if in the splitting of the lot,would the
second system be on the property? Mr.Archuleta said it would not,but that a new septic system was planned
for the resubdivision and would be removed if the county so required. Otherwise it would remain as it was.
Mr. Evans asked Mr. Bley if they had preliminary plans showing that both septic systems and leach fields
would fit on the property? Mr. Bley replied yes and that they would fit within the fifteen thousand square feet
of the lot and within existing setbacks and property lines.
Ms. Manlove inquired of Ms. Smith about the four to five septic systems in the subdivision that had failed?
Ms. Smith said a flood in the mid nineties had caused failures in several septic systems, though the age of
the systems could have also been a contributing factor in their failure. Ms. Manlove asked about the general
drainage of the property?
Don Beierbach spoke and he recalled that the general drainage of the property is very poor as there was no
natural drainage to that area and that excess water had to seep into the ground or be pumped out.
Mr. Evans asked Monica Mika,Department of Planning Services,how this application would fall under the new
County Code being proposed? Ms. Mika replied that because these permits in Southgate pre-dated the
County Code the way we regulate now, these structures would be considered principle structures with the
exception of some of the activity surrounding the second structure on the site and would not fall under the new
criteria even if it were presently in place. Mr. Evans asked if the property was located in a floodplain? Ms.
Hatch replied that it was not.
Mr. Bodine asked Mr. Bley what, if any, special conditions this property had separate from Planning Staff
recommendations? Mr. Bley replied that this property was originally zoned commercial R-5 and is the largest
lot in the subdivision.
The Chair asked if there was anyone in the audience who wished to speak for or against this application. No
one wished to speak.
Mr. Bodine stated though he was sensitive to and sympathized with the Archuleta's situation, he had a
problem with the peculiarities that existed even though they came about before the implementation of the
County Code, and he was not sure that was basis enough to grant the variance the applicants requested.
Mr. Evans asked for clarification about the applicant's request.
Mr. Bodine said that if they approved the variance then they seemed to be setting the stage for approval of
the resubdivision.
Ms.Mika stated that the board was to look at whether there were hardships present that precipitated approval
of the grant to a variance to waive the public sewer requirement in the R-5 zone district.
Mr. Donley said he could not vote in favor of the applicant's request because it might create a bad public
environment for the applicant and his family and present and future residents of the subdivision.
Mr.Archuleta pointed out that the flow of any possible flood water would be to the north and that his property
was located at the south end of the subdivision. Mr.Archuleta added that he understood that currently, if you
moved in a new home, you must replace equipment or bring it up to code specifications.
Mr. Bodine said the board did not have that information so they could not address that issue.
Lee Morrison, County Attorney,said the lots in existence now were created prior to 1981 and did not have to
meet public sewer requirements as they were"grandfathered"in. The board needed to focus on whether to
waive public sewer requirements on a future lot to be created after 1981 that will be served by septic. Any
technical issues regarding the leach field needed to be resolved by staff or in a variance process before the
Department of Public Health &Environment if it could not be located in a way that met all of the requirements
of the individual sewage disposal system regulations. Mr.Archuleta asked Mr. Morrison that if they had only
one home on the lot, and replaced only the one home, would they be in accordance with county rules and
regulations? Mr. Morrison replied that was correct, but the existence of the gutted modular would still need
to be resolved. If the applicant had two mobile homes that had not been replaced or abandoned, they could
continue as they had been,but because the second was replaced they lost that right. There would have been
no problem if the applicant had replaced only one home and had only one home on the lot, but the
replacement of more than fifty percent voids the non-conforming use. Mr.Archuleta asked if he had replaced
both homes at the same time on the same site on the property if he would be having this discussion? Mr.
Morrison replied that he was not sure it was legal before 1981 to have two homes on this specific lot. Mr.
Archuleta was correct in his statement that in replacing the second home he lost the right to have two homes
on the property. Mr. Morrison said he did not believe that it was legal to have two homes on one R-5 lot
anyway prior to 1981, but he had not reviewed the 1981 regulations prior to this hearing as he did not know
this would become an issue. Mr. Archuleta then asked if this was a commercial lot and not allowed to have
homes on it, why Weld County provided two water lines to the property? Mr. Morrison said the water district
controls the taps, not the county. Mr. Morrison added the fact that there ended up being two taps and the
applicant's assumption that two were allowed speaks to question number one, "Are there special conditions
peculiar to this lot that were outside the applicant's control?" Mr. Morrison said he was not telling the board
they should find that way, but that it was relevant for that and it is not a right to have two, but it may be an
explanation for why the applicant got in the situation he is in.
Mr. Bley said there may be a question as to whether the county issued two permits of occupancy on this
commercial lot, and that the precedent could have been set in the 1980's.
Mr. Bodine stated that went beyond what the board could determine at this time.
Ms. Mika indicated the original plat of Southgate clearly showed this parcel defined as a commercial use. At
the time the building permit was issued in this area we were able to allow a mobile home to be used as a
caretaker facility. Though she couldn't say for sure that is what occurred with the second structure, keep in
mind the permits were issued but they were never finalized. The applicant's deed shows it was a commercial
tract and our plat shows it was a commercial lot and the building permit itself says Lot A is commercial, thus
possibly explaining the existence of the two structures. Ms. Mika said whether both structures were intended
to be full time residences was the question in her mind as to vested rights. At that time the county did allow
for a caretaker in that district but the County Code no longer allows for a caretaker residence in the
commercial zone district.
Mr. Evans inquired as to the zoning of the lot?
Ms. Mika stated that the plat shows it as commercial after additional litigation and research. Apparently it was
R-5 but she did not have the particulars for that determination.
Mr. Morrison shared that he and Mr. Bley had an exchange about this about a year ago and the determination
that the R-5 zoning was appropriate was made then but he did not have any materials with him at this time.
Mr. Bodine stated that in the absence of any evidence to the contrary, they would consider the zoning R-5.
Seeing there were no further comments or discussion, Mr. Bodine asked the board for a motion.
Mr. Morrison reminded the board that any motion made should be in the positive.
John Donley moved that Case BOA-1024, be approved along with the Conditions of Approval as proposed.
Don Beierbach seconded the motion.
The Chair asked the secretary to poll the members of the Board of Adjustment for their decision. Don
Beierbach, no; John Donley, no; Tony Evans, no; Syl Manlove, no; Eric Whitwood, no; Larry Wilson, no;
Joseph Bodine, no. Motion failed unanimously.
Meeting adjourned at 5 p.m.
Respectfully submitted,
Donita May
Secretary
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