HomeMy WebLinkAbout960843.tiff HEARING CERTIFICATION
RE: VIOLATIONS OF THE WELD COUNTY BUILDING CODE AND ZONING ORDINANCES
A public hearing was conducted on Tuesday, May 14, 1996, at 10:00 a.m., with the following
present:
Commissioner Barbara J. Kirkmeyer, Chair
Commissioner George E. Baxter, Pro-Tern
Commissioner Dale K. Hall
Commissioner Constance L. Harbert
Commissioner W. H. Webster
Also present:
Acting Clerk to the Board, Lin Dodge
County Attorney, Bruce Barker
Planning Department representative, Julie Chester
Planning Department representative, Keith Schuett
Planning Department representative, Ed Stoner
The following business was transacted:
I hereby certify that a public hearing was conducted to consider whether to authorize the County
Attorney to proceed with legal action against the individuals named for violations of the Weld
County Building Code and Zoning Ordinances. Cases were heard as follows.
VI # 9600013 - Tim and Reuben Bernhardt: Julie Chester, Department of Planning Services,
presented the case report for the record and stated property owners have built a large dike around
a plowed farm field in Flood Zone A without a Flood Hazard Development Permit (FHDP), which
is a violation of Sections 53 and 26, inclusively, of the Weld County Zoning Ordinance. She noted
staff has received a number of complaints from surrounding property owners and oil/gas operators.
Ms. Chester indicated subject property owners claim to have only repaired an old existing dike
which was permitted; however, inspection by staff shows the dike has been relocated, without a
new permit. She stated as of this hearing the property owners have hired an engineer and applied
for the permit. Ms. Chester presented a video of the 1995 flooding taken from an adjacent property
which shows the velocity and course of the water through the Bernhardt property. Another video
taken May 13, 1996, showed the new dike which is made of soft dirt and sand and is 12 to 15 feet
high in places. Responding to Chair Kirkmeyer, Keith Schuett, Department of Planning Services,
indicated it would take approximately thirty days to finalize a FHDP after the application is received.
Tim Bernhardt was present and stated he and his father, Reuben Bernhardt, own the subject
property. He indicated they built the dike as a result of$100,000 worth of damage to their hay crop
from the 1995 flooding. He stated his grandfather built the existing dike in the 1950s, and he feels
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the adjacent landowners to the south should have taken that into consideration when they applied
for their FHDPs and built on their properties. Mr. Bernhardt stated he has hired engineer Bob
Zoyiopoulos who has advised him to request a 60-day extension on the violation. Mr. Schuett
clarified for the Board that the 60-day extension would be to submit the FHDP application, not for
review and approval. He advised there is always a chance the permit will not be approved and
reiterated staffs concern that the dike was built in a different location than the old dike.
Responding to Commissioner Webster, Mr. Bernhardt indicated the construction of the dike is
complete. John Mauzy, adjacent landowner to the south, was present and stated his primary
concern is that flood water has to go somewhere and get back to the river somehow. He stated
the new dike runs along the property line, making his FHDP null and void, and questioned having
irrigated pasture in the flood zone. Responding to the Board, Mr. Mauzy indicated he has lived on
his property six years and 1995 was the first time any flooding occurred. He reiterated his concern
that the new dike is higher and longer than the old one and stated he would be open to options
such as digging a canal to direct the water back to the river. Commissioner Harbert indicated the
Board would have to abide by the recommendations of the Army Corps of Engineers. Mr. Schuett
clarified for Chair Kirkmeyer that the permit would be issued only if there were no potential for flood
damage both upstream and downstream. Chris Matheson, adjacent landowner, questioned
whether the Board had the authority to order the dike removed until the permit is approved. His
other concerns included the potential for flooding and damage to lands and homes in the interim
period before the application is submitted and approved and whether the old dike is in violation at
this time. He, too, questioned having irrigated pasture in the flood zone. Bruce Barker, County
Attorney, responded that the Board does have the power to order the dike removed if there
appeared to be imminent danger of property damage. However, an injunction would require the
same investigation and research, and he advised at this time it would more expedient to proceed
with the FHDP application. Mr. Barker added that adjacent landowners have the right to pursue
independent civil action. Chair Kirkmeyer verified the Bernhardts would have to move the dike if
denied the permit. Mr. Schuett stated that irrigated pasture in a flood zone does not require a
permit since it does not alter or involve relocation of the water course. Mr. Barker clarified for Mr.
Mauzy that adjacent landowners have an obligation to do whatever is necessary to minimize
damages from floodwater. Reuben Bernhardt, property owner, was present and offered historical
background on the farm. He stated his father owned the farm and built the original dike because
the southern part of the farm was always in water. Commissioner Baxter stated he would like to
know if the new dike is in a better location than the old one. There being no further public
comment, Commissioner Harbert moved to delay referral of VI #9600013 against Tim and Reuben
Bernhardt to the County Attorney for legal action for sixty days to allow for processing of the
Bernhardts' FHDP application. The motion was seconded by Commissioner Webster and carried
unanimously.
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VI #9600016 - Donald Carlisle: Ms. Chester presented the case report for the record, stating a
carpet business is being operated on the property without a Site Plan Review Permit (SPR), which
is a violation of Section 33.2.5 of the Weld County Zoning Ordinance. She showed a video of the
property taken May 13, 1996, which is located on the east side of Highway 85 and 5th Street. Mr.
Schuett verified for Commissioner Harbert that the violation has been ongoing since January 2,
1996. He explained Greeley Aerial Crop Duster, Inc., which is listed as property owner, and Donald
Carlisle as representative, were notified by letter on January 9, 1996 and in person on January 16,
1996, that a Site Plan Review Permit was required for the business. Mr. Schuett further explained
that Mr. Carlisle feels the property was zoned improperly during the redistricting in 1981; however,
that is not an issue in this case since the use fits the C-1 Zone District requirements and a Site Plan
Review Permit would be required whether the property were zoned C-1 or C-3. (Changed to Tape
#96-15.) Donald Carlisle, representing Greeley Aerial Crop Duster, Inc., reviewed the history of
the property and stated his contention that C-3 zoning more appropriately fits the uses of the area
and that the County initially created the problem by incorrectly zoning the area and failing to notify
the property owners of the redistricting in 1981. Following further discussion, Mr. Schuett verified
for Chair Kirkmeyer that the property would require a Site Plan Review Permit whether it is zoned
C-1 or C-3. Mr. Carlisle reiterated the business should be grandfathered since it was there before
the redistricting and before Site Plan Reviews were required and used Ellis and Capp Equipment
Company as an example. In response, Mr. Schuett explained the redistricting was done in 1981
when the County changed to the Zoning Ordinance and clarified that different types of businesses
impact the area differently; therefore, the designation of types of businesses allowed in the different
zone districts was required. He further stated the uses on subject property have not been
consistent through the years, negating the use by right and comparison to Ellis and Capp
Equipment Company. Responding to Commissioner Hall, Mr. Carlisle listed eleven different
businesses located on the property since 1970. He reiterated his concerns about the indifferent
attitude of Planning staff, excessive fees required for a Site Plan Review Permit, and the County's
responsibility in resolving this issue. Mr. Schuett confirmed for Commissioner Harbert the Site Plan
Review Permit fee is $400 and the process takes approximately 30 to 45 days. He also confirmed
for the Board that a "generic" Site Plan Review Permit would cover the uses allowed under the C-1
Zone District, so that only one permit would be required. Responding to Mr. Carlisle,
Commissioner Hall clarified that this issue came to staffs attention from a public complaint. Chair
Kirkmeyer clarified that Mr. Carlisle would have to make sure the businesses he rents the property
to fit into the C-1 Zone District allowable uses and reassured Mr. Carlisle that those uses are not
arbitrarily approved by staff, but defined by ordinance. She then proposed a compromise with
three conditions: 1) the staff will assist Mr. Carlisle step-by-step through the generic Site Plan
Review Permit process; 2) the Board will waive the permit fee; and 3) Mr. Carlisle must stay within
the C-1 Zone District allowable uses, a list of which would be made available for his use. No further
public comment was offered. Commissioner Harbert moved to delay referral of VI #9600016
against Donald Carlisle to the County Attorney for sixty days to allow time for Mr. Carlisle to apply
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for and have approved a generic Site Plan Review Permit and to waive the customary fees with
the condition that Mr. Carlisle abide by the uses allowed in the C-1 Zone District. Commissioner
Baxter seconded the motion, which carried unanimously.
BCV#2197 -Jacob Kerbs: Ed Stoner, Department of Planning Services, presented the case
report for the record. He stated the property owner failed to obtain a building permit to change
occupancy from a garage to a single family dwelling, which is a violation of Section 30.5.2.1 of the
Weld County Building Code Ordinance. Mr. Stoner reported Mr. Kerbs has agreed to apply for the
permit today and recommended a thirty-day delay. Mr. Kerbs was present at the hearing, but
declined to speak. The Board verified that Mr. Kerbs planned to obtain the appropriate permit
immediately. No public testimony was offered. Commissioner Harbert moved to delay referral of
BCV#2197 to the County Attorney for legal action for 48 hours to allow Mr. Kerbs sufficient time
to obtain the appropriate permit. The motion was seconded by Commissioner Webster and carried
unanimously.
This Certification was approved on the 20th day of May, 1996.
APPROVED:
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TAPE#96-14 and #96-15
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PL0824 Constance L. Harbert
FXCI ISFf] f1ATF OF APPROVAI
W. H. Webster
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