HomeMy WebLinkAbout991207.tiff HEARING CERTIFICATION
DOCKET NO. 99-29
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND PLANNED UNIT DEVELOPMENT FINAL
PLAN, S #488 FOR SEVEN E (ESTATE) ZONED LOTS AND ONE NON-BUILDABLE
COMMON OPEN SPACE LOT - BILL HALL
A public hearing was conducted on May 24, 1999, at 10:00 a.m., with the following present:
Commissioner Dale K. Hall, Chair
Commissioner Barbara J. Kirkmeyer, Pro-Tem
Commissioner George E. Baxter
Commissioner M. J. Geile
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Carol A. Harding
Assistant County Attorney, Lee Morrison
Planning Department representative, Ben Patton
Health Department representative, Trevor Jiricek
Public Works representative, Don Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated May 7, 1999, 1999, and duly published May 12,
1999, in the Fort Lupton Press, a public hearing was conducted to consider the request of Bill Hall
for a Site Specific Development Plan and Planned Unit Development Final Plan, S#488, for seven
E (Estate) zoned lots and one non-buildable common open space lot. Lee Morrison, Assistant
County Attorney, made this a matter of record. Ben Patton, Department of Planning Services,
presented a brief summary of the proposal and entered the recommendation of staff for conditional
approval into the record as written, and stated there is also an Improvements Agreement to be
considered for approval today, along with acceptance of a Letter of Credit. Mr. Patton indicated
Condition of Approval #5.L is a duplicate of #5.F and should be deleted, with the remaining
paragraphs of#5 being relettered. Responding to Commissioner Kirkmeyer, Mr. Patton stated
there was a Condition on the Change of Zone requiring an easement agreement with the owners
of three separate ditches on the property and one to require reconfiguration of the recreational trail
so it does not cross any portion of the ditch easement. After discussion, Mr. Morrison clarified it
is the Board's decision whether there is compliance with the Change of Zone, although staff has
reviewed the case and feels all reasonable efforts have been made to accomplish the Conditions.
Responding to Commissioner Kirkmeyer, Mr. Morrison stated determination of compliance with the
Change of Zone is part of the process for approving the Final Planned Unit Development Plan,
therefore, it is part of today's process.
Brent Coan,Attorney, represented the applicant and explained the agreement with owners of three
ditch companies was appropriate; however, it was not possible to complete. He stated Mr. Hall did
reach agreement with owners of two of the companies; however, although making a good faith
effort, could not reach agreement with the third. Mr. Coan also discussed the two roadways that
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are adjacent to each other in the development, stating the area between the Highway 85 By-Pass
and Frontage Road is 79 feet from centerline to centerline. The applicant is proposing landscaping
between the two to eliminate concerns, and Mr. Coan also stated the Planned Unit Development
road is at a lower elevation than the County road.
Responding to Commissioner Baxter, Bill Hall, applicant, explained two small ditches run adjacent
to each other; one is the Olsen ditch, the other is the Winter/Roth ditch. Mr. Hall further explained
he had presented four separate drafts of the easement agreement to Mr. Roth for approval;
however, none have been accepted. Mr. Hall indicated the owners of the Olsen ditch have entered
into an easement agreement with him, as have the owners of the North Side Lateral Ditch, or Ditch
#2. Mr. Hall stated although both ditches run on his property, the only existing easement is a
prescriptive easement. Mr. Coan clarified the applicant has left a 65-foot easement, as well as a
substantial clean-out area for maintenance of the ditches. Mr. Hall stated he has agreed to accept
liability for any action that the residents or applicant would take as far as hindering the ability to
irrigate or someone falling into the ditch; however, he cannot accept liability if someone burning
ditches would accidentally burn down private property. Responding to Commissioner Baxter, Mr.
Hall stated there is no fencing of the ditches planned, at the request of Mr. Winter, who specifically
stated he did not want fencing, since it would be too much trouble. Mr. Hall stated the recreational
trail does follow the ditches. Mr. Morrison clarified with Mr. Hall that the last agreement offered to
Winter/Roth was a copy of the agreement signed by the Olsen Ditch Company, marked Exhibit B,
with a minimum $1,000,000 liability limit. Responding to Commissioner Kirkmeyer, Mr. Hall said
he owns the ditch marked on the plat as the Inlet Ditch, the lake, and a good portion of the water.
Mr. Morrison clarified Richard and Linda Winter, Robert and Virginia Roth, and Dorthula and
Raymond Lohr, ditch owners did received notices of this hearing as surrounding property owners,
and the ditch company did not get a separate notice.
Gerald Roth, shareholder in the Winter/Roth/Lohr ditch, stated his concerns that none of the
shareholders were informed as a shareholder, only as surrounding property owners; only two of
the present Board of Commissioner members have voted to accept this development; prime
farmland is being taken out of production; the northwest site is being developed in a wetland and
is too close to the ditch; the development is adjacent to the present Olsen Subdivision, therefore,
the Planning Commission denied the request; an easement agreement for the ditch has not been
approved; the applicant is still proposing a nature trail on the ditch easement, although Condition
#3.A.8 of the Change of Zone requires reconfiguration of the trail to avoid the easement; and he
feels the ditch easement should be fenced by the developers. Responding to questions from the
Board, Mr. Roth stated part of the Homestead Act allows him water rights dating back 104 years.
He also stated his father purchased the property 54 years ago, and he feels he would be allowed
to process a Quit Claim Deed for the 25-foot easement to protect his rights. Responding to Chair
Hall, Mr. Roth explained the prescriptive easement is 25 feet wide, and the applicant did not offer
anything they did not already have. Mr. Morrison clarified that there are two paths involved, one
is a maintenance path used for access and cleaning out the ditch, the other is the recreational path
which runs beside the ditches. Responding to Commissioner Kirkmeyer and Chair Hall, Mr. Roth
stated the recreational trail is right on his maintenance road and reiterated they have not reached
an agreement about the easement. Mr. Roth further stated he doesn't need an easement, they
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have their own, and he reviewed the various drafts of the easement agreement which have been
presented to him. Mr. Roth then presented his draft of an agreement, marked Exhibit D, which
would hold the ditch company harmless for any and all claims, including the company's operation
or maintenance of the ditch. After discussion, Mr. Roth said he did see a copy of the final draft
offered by Mr. Hall. Responding to Chair Hall, Mr. Roth also stated Lot 1 is an unstable lot which
is too close to the ditch, and should not be allowed as a buildable lot. Chair Hall stated the
setbacks, would all have to be met prior to obtaining a building permit. Responding to
Commissioner Baxter, Mr. Roth noted homeowners need to know of the possibility of fire, because
he will not accept that liability. After further discussion, Mr. Morrison stated the difference in the
two agreements is that Mr. Hall's agreement holds the ditch company harmless "in the easement
area", excluding smoke, but is not willing to be liable for any damage to persons or property outside
the easement area, whereas Mr. Roth's agreement holds the ditch company harmless with no
restriction on location.
•
On rebuttal, Mr. Coan stated Mr. Morrison's summary of differences in the agreement was accurate
and reiterated the difference between the two depends on whether one is talking about liability
inside or outside of the easement area. Mr. Coan also noted a prescriptive easement is not
exclusive in nature; an individual cannot exclude the fee owner of the property from it, therefore,
he could not convey the property to himself with a Quit Claim Deed. He answered other concerns
stating the property was posted and Mr. Roth was well aware this hearing was scheduled.
Responding to questions from Commissioners Geile and Kirkmeyer, Mr. Hall clarified the 65-foot
right-of-way is measured from the northern property line, and includes the land on both sides of the
ditches, the maintenance road, and the recreational trail, which is proposed at a ten-foot width. He
said the trail is in the maintenance easement; however, the amount of easement has been
increased to allow the ditch company to place sediment on the trail and smooth out instead of
having to remove it, and also suggested it could be bermed if a delineator is needed. Mr. Morrison
stated the right-of-way was originally 50 feet,which Mr. Hall is increasing to 65 feet; however, it will
now include a ten-foot nature trail. Mr. Morrison also reminded the Board it may not delegate its
authority in a certain matter to a private party by giving a private party veto power over the decision,
such as requiring an agreement if the parties are at an impasse. Responding to Commissioner
Baxter, Mr. Hall stated he is willing to put in a bermed area, since Mr. Winter did not want a fence,
and reiterated he is doing whatever he can to make this work.
Commissioner Kirkmeyer stated she feels Condition #3.A.8 was essentially satisfied by enlarging
the easement to benefit both parties; however, since the easement agreement has not been signed
by the Winter/Roth/Lohr owners, they would be allowed 30 days following approval to sign the
same agreement as was signed by the other two ditch companies. Indicating concern over another
30-day delay, Mr. Hall stated he has made repeated attempts to reach an agreement and would
like to see the project proceed without delay. Commissioner Kirkmeyer stated she did not suggest
it as a delay, but to be left open 30 days for them to sign if they choose, proceeding with the project
upon approval and recording of the plat. Mr. Morrison stated leaving it open and requiring
signature might be outside the scope of the approval process and suggested since Mr. Hall has
offered to leave it open, he may do so.
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Commissioner Vaad moved to approve the request of Bill Hall for a Site Specific Development Plan
and Planned Unit Development Final Plan, S #488, for seven E (Estate) zoned lots and one
non-buildable common open space lot, based on the recommendations of the Planning staff, with
the Conditions of Approval as entered into the record, deleting Condition #5.L and relettering the
numbers, as well as approving the Improvements Agreement According to Policy Regarding
Collateral for Improvements(Publicly Maintained Roads)and accepting Irrevocable Letter of Credit
No. 3, in the amount of $63,100, drawn on the Weld County Bank, 3635 23rd Avenue, Evans,
Colorado 80620. The motion was seconded by Commissioner Baxter, and Commissioner
Kirkmeyer stated her confidence that, having heard the testimony in the hearing today, Mr. Hall will
leave the agreement open for 30 days for the ditch owners to sign. The motion it carried
unanimously.
This Certification was approved on the 26th day of May, 1999.
/�` APPROVED:
ATTEST: /r� / e � � E � \ BOARD OF COUNTY COMMISSIONERS
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Weld County Clerk to t B .'. -,-;,&4?-r--�
L ;`'t �,1 D K. Hall, Chair
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Deputy Clerk to the t! v(LZ
Barbara J. Kirkmeyer, Po-Tem
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EXHIBIT INVENTORY CONTROL SHEET
Case S #488 - BILL HALL - LINDIES LAKE
Exhibit Submitted By Exhibit Description
A. Clerk to the Board Notice of Hearing
B. Bill Hall Olsen Ditch Agreement
C. Bill Hall Letter of Credit
D. Gerald Roth Draft easement agreement
E. Gerald Roth Letter dated January 13, 1999
F. Gerald Roth Letter dated February 7, 1999
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ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 24TH DAY OF MAY, 1999:
DOCKET #99-29 - BILL HALL - LINDIES LAKE
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