HomeMy WebLinkAbout980249.tiff BEFORE THE BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
EXCERPT OF MEETING CONDUCTED SEPTEMBER 30, 1998
RE: PROBABLE CAUSE HEARING FOR USR#943
WINDSOR SHORES, INC., %LARRY ECKEL
APPEARANC ES
WELD COUNTY COMMISSIONERS:
CONSTANCE . HARBERT, CHAIR
W. H. WEBSTER, PRO-TEM
GEORGE BAXTER
DALE K. HALL
BARBARA J. KIRKMEYER
OTHER COUNTY STAFF:
BRUCE T. BARKER, COUNTY ATTORNEY
SHARYN FRAZER, DEPARTMENT OF PLANNING SERVICES
ALSO PRESENT:
JOHN BARRY, REPRESENTATIVE OF LEASERS
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1 PROCEEDINGS
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3 CHAIR HARBERT: Under Planning, Item#1, Consider Probable Cause
4 Hearing for USR#943, Windsor Shores, Inc., % Larry Eckel.
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6 MS. FRAZER: Sharyn Frazer, Department of Planning Services.
7 Probable Cause Hearing, Case #ZCH-005 in conjunction with a Use by Special Review 943
8 approved by the Board of County Commissioners on May 15, 1991, in conjunction with violation
9 #9800127. I'd like to read the memo I just handed out into the record. Basically the applicant
10 and the individuals alleged not to have been permit holders responsible for following the rules of
11 the reservoir and have entered into a stipulation for a preliminary injunction which has been
12 adopted as an order of the Court. The order, which will remain in effect until a full trial on the
13 merits of the case, provides that those individuals will be permit holders and follow the rules of
14 the reservoir. The basis for commencing the violation was not that there were specific incidence
15 of misconduct but rather that there was a question of whether those individuals were permittees
16 and were aware of the rules. The application represented only permittees would be allowed to
17 use the facility in accordance with the rules of the reservoir. Because the Court Order appears to
18 resolve the issue of the use of that facility at this time, Planning and legal staff recommend that
19 the Probable Cause Hearing be dismissed without prejudice at this time.
20 CHAIR HARBERT: I guess I need to ask you what we do to proceed.
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1 MR. BARKER: I think what you might want to do is, Mr. Barry is here
2 on behalf of the original applicant, or I guess one of the parties. You may want to ask Mr. Barry
3 to speak to which ever party he represents. And then anyone else who may want to speak,
4 because I think this was, notice was sent as a public hearing and there may be some other
5 individuals, I believe that there are.
6 CHAIR HARBERT: Would the applicant or their representative like to
7 come forward. Doesn't make any difference who. You may go either place.
8 MR. BARRY: Madame Chair, John Barry. I am not representing the
9 applicant, I am representing the eight persons who were plaintiffs, are plaintiffs, in the action
10 brought this past March against the applicant and Larry Eckel. Let me first state that our clients
11 are in favor of dismissal of the Probable Cause Hearing in order to show cause that this matter
12 should not have actually been brought in the first place but we understand it has and I won't bore
13 you with all the details of the lawsuit but the eight clients brought an action this past March to
14 regain access to their spaces at the Big Windsor Reservoir managed by Windsor Shores. They
15 have been there since 1991 when the Use by Special Review Permit was granted. Windsor
16 Shores attempted to exclude them this past Spring. They went to Court on April 6'h, Judge West
17 conducted a injunction hearing and granted them access again to the reservoir, they have
18 remained in occupation of their spaces at the reservoir pending a trial which I anticipate will
19 occur sometime next year. The rules which we understand are now in place were first seen by
20 our clients this month, September, and they have agreed that they are certainly agreed to comply
21 with those rules. To my knowledge there has been no allegations they have violated any safety
22 rules at the reservoir for lack of a better way to put it, this is contentious litigation and I believe
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1 that's really what lead to this being brought to the County in the first place.
2 COMMISSIONER BAXTER: Could you answer for me please what the
3 USR was for?
4 CHAIR HARBERT: Right. Well, I know, I think I know
5 MS. FRAZER: It is a recreational facility for boating, water sports.
6 COMMISSIONER BAXTER: So the Probable Cause would have been
7 that the rules were not followed in accordance to the permits.
8 MS. FRAZER: Correct. It was determined through conversation with Lee
9 Morrison, who had been in conversation with other legal, with the applicant's attorney,
10 MR. BARRY: I think the applicant's attorney.
11 MS. FRAZER: the applicant's attorney,that the application materials
12 which stated that permittees would pay an annual fee for membership to the reservoir, the
13 shareholders in this case, the parties we are discussing at this point, paid an initial fee and then no
14 longer paid an annual fee but continued to use the reservoir. The applicant requested that the
15 County become involved possibly looking at revoking the USR based on the fact that there were
16 shareholders that should have been permittees paid an annual fee that had not since 1991
17 CHAIR HARBERT: And so your clients were never given the rules when
18 they became shareholders or whatever is that correct?
19 MR. BARRY: That's correct. They became shareholders, initially they
20 were licensees. In 1992 they were approached by Mr. Eckel and became shareholders with the
21 agreement and they paid well in excess of what an annual permit would be, that they would
22 continually have spaces at the lake. That progressed fine until about August of 1997 when for
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1 reasons I won't bore you with, the parties became antagonistic and since then it's gone downhill
2 to the point that the litigation was necessary this past March.
3 CHAIR HARBERT: This is the recreation area on Road 74, is that right?
4 COMMISSIONER KIRKMEYER: So. I just want to get something clear,
5 so
6 MR. BARRY: 392 and I'm not sure what the crossroad is
7 MS. FRAZER: 19
8 CHAIR HARBERT: 74
9 MR. BARRY: Yeah, it's north of 74
10 CHAIR HARBERT: North of 74, is that right? It is northwest of
11 Windsor, excuse me.
12 COMMISSIONER WEBSTER: Remember when we (inaudible)
13 CHAIR HARBERT: Right, right. Okay.
14 MS. FRAZER: North of the town of Windsor, north of Weld County
15 Road 74, west of county road 29.
16 CHAIR HARBERT: I was thinking at first it was the one that was just to
17 the west of Windsor but this is the one that is northeast of Windsor up by Severance. Okay.
18 COMMISSIONER KIRKMEYER: I'm trying to figure out why the
19 County was even involved in this. There aren't any Conditions or Development Standards that
20 talk about the permit holders, permit fees, annual fees or anything; so essentially what happened
21 here is the applicant, or Mr. Eckel, he's not really an applicant any more, used the County and
22 drug us through a Probable Cause Hearing.
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1 MS. FRAZER: In conversation with Lee Morrison, the application
2 materials the way that they are written incorporate the same use that a Development Standard or
3 Condition of Approval would. It was based on the application material that stated that all
4 licensees, permit holders, etc. would pay an annual fee and then what that fee is. I included that
5 in your packet under the application materials.
6 COMMISSIONER KIRKMEYER: So we would have been able to revoke
7 the permit if the owner didn't follow his own rules even though it's not a Development Standard
8 or a Condition?
9 MS. FRAZER: According to legal staff, yes, ma'am.
10 MR. BARKER: Right.
11 MS. FRAZER: Correct. Because the application materials are included in
12 Development Standard #1. In the language in Development Standard #1 that incorporates any of
13 the information in the obligation materials, according to legal staff.
14 MR. BARKER: I think the thing is that now the Order basically puts in
15 place such that they have decreased the use of the facility up until the time of the hearing. At
16 least through then, and then the Court will make that determination after that so it makes this
17 proceeding moot as for a Probable Cause. We started this process and we needed to get the thing
18 going with notice and everything else, but I believe that the timing of the Order was something
19 either contemporaneous or shortly after we got the process started. So once it starts we need to
20 bring it to the Board for the purpose of your determination, and then go from there. But I think at
21 this point it makes it moot for a Probable Cause Hearing.
22 COMMISSIONER.KIRKMEYER: At this point you are saying they are
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1 not in violation of Development Standard#1?
2 MR. BARKER: That is my understanding. And I think the thing is that
3 the, their we may need to bring it back after to the time of the hearing of Judge West. When he
4 makes that determination. However, at this point in time it appears as though there is
5 compliance.
6 COMMISSIONER KIRKMEYER: Only because of a Court Order?
7 MR. BARKER: Correct.
8 COMMISSIONER KIRKMEYER: So what does it mean to dismiss
9 without prejudice?
10 MR. BARKER: Dismiss without prejudice is a term of Court which
11 means you can dismiss the proceeding and it doesn't mean that we're precluded from bringing it
12 back. That's normally the way you do Probable Cause Hearings instead of continuing them to a
13 time in the future it is best to just go ahead and dismiss them out and if we need to we can bring
14 back for another Probable Cause Hearing, if necessary.
15 COMMISSIONER KIRKMEYER: Or we could go ahead and set a Show
16 Cause Hearing after we hear what the Court has to say.
17 MR. BARKER: We could do that, too. That's another option, but you
18 would have to make Probable Cause, that there is the possibility of a violation or that there is a
19 violation at the present time.
20 COMMISSIONER BAXTER: We just had this discussion last week and
21 decided that that wasn't a very appropriate thing to do either, though, because it makes sense we
22 can always bring a probable cause back.
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1 MR. BARKER: Commissioner Baxter, I think you are referring to another
2 matter that didn't have anything to do with these facts.
3 COMMISSIONER BAXTER: Not with these facts, I am talking about a
4 separate
5 MR. BARKER: the process
6 COMMISSIONER BAXTER: A process.
7 COMMISSIONER HALL: Legal point well taken.
8 COMMISSIONER KIRKMEYER: I understand that, I mean
9 COMMISSIONER BAXTER: mean we, I understand, I don't agree with
10 doing it that way because we didn't do it before.
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12 COMMISSIONER KIRKMEYER: I think we just got caught in the
13 middle here of a neighborly type dispute, (inaudible) waste our time.
14 CHAIR HARBERT: I'm not sure it is neighborly.
15 COMMISSIONER HALL: Well, I guess I don't see anything in there in
16 the first place, I don't, I see where the application shows mention of permit holders, but I don't
17 see where it says that there will be or what the charge will be.
18 MS. FRAZER: It refers to an annual permit which legal staff felt that
19 COMMISSIONER HALL: Doesn't necessarily say anything about fees. I
20 guess I don't see, I think we are being drug through the mud. The County is being drug through
21 the mud in this civil issue between the two parties and I think, it's for one, I don't appreciate that
22 part of it and I don't understand the logic behind an applicant trying to get us to revoke his
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1 application because he wouldn't be able to use that facility. That makes no logic sense.
2 COMMISSIONER BAXTER: He wants to use us to punish somebody
3 because things didn't come out his way.
4 COMMISSIONER KIRKMEYER: I think if he wants to use us we could
5 go ahead and let ourselves be used and set a Show Cause Hearing, too. I mean he took that
6 chance, but I am not willing to go through it.
7 COMMISSIONER BAXTER: And punish everybody else.
8 COMMISSIONER HARBERT: This is a public hearing. Is there anyone
9 in the audience that would like to speak for or against this Probable Cause Hearing? Let the
10 record show there is no one. May I have a motion, please?
11 COMMISSIONER HALL: Madame Chairman I move that there is no
12 Probable Cause for revoking the permit and dismiss the probable cause hearing.
13 COMMISSIONER WEBSTER: Second.
14 CHAIR HARBERT: It's been moved by Dale and seconded by Bill to
15 dismiss the Probable Cause Hearing for the USR#943. Is there any discussion? All those in
16 favor say aye.
17 COMMISSIONER BAXTER: Aye.
18 COMMISSIONER HALL: Aye.
19 COMMISSIONER KIRKMEYER: Aye.
20 COMMISSIONER WEBSTER: Aye.
21 CHAIR HARBERT. Opposed? Motion is carried. There being no other
22 business to come before us, we are adjourned.
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1 CERTIFICATE
2 I, CAROL A. HARDING, Deputy Clerk to the Board of County
3 Commissioners and a Notary Public of the State of Colorado, appointed and commissioned by
4 the Secretary of State, do hereby certify that the foregoing Probable Cause Hearing was
5 transcribed from the taped recording which was recorded at the Weld County Centennial Center,
6 915 10`h Street, Greeley, Colorado, by Esther Gesick, Deputy Clerk to the Board; and that the
7 foregoing is an accurate transcript of the proceedings at that time.
8 I further certify that I am not related to any party herein or their counsel,
9 and that I am employed as Office Manager in the office of the Weld County Clerk to the Board.
10 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
11 Notarial Seal this 27`h day of October, 1998.
12Y.Pv r
13 ; 'CQ ' .B '• vCr�k=r
14 i "s• CAROL A. HARDILY
15 _' CAROL A. 0 Deputy Clerk to the Board and Public
16 HARDING
17 My C. .% ',Sion Expire 3 /e 8, 2002
18 .�i'P aQP:
My Cc nmisstjn Expires June 8,2002
10
WITWER, OLDENBURG, BARRY & BEDINGFIELD, LLP
ATTORNEYS AT LAW
822-7TH STREET, SUITE 760 ''yy
STOW L.W R.ITWER.J CHARLE5 D KAROv,S t..
R. SAM OLDENBURG GREELEY, CO 80631 11``�.
JOHN J. BARRY 0
JEFFREY T. BEDINGFIELD (970)352-3161 _)
JACQUELINE JOHNSON FACSIMILE(970)352-3165 Cly (`�
PATRICK M. GROOM
n1.
October 1, 1998 c+
Clerk to the Board
Weld County, Colorado
PO Box 758
Greeley, CO 80632
Atten: Carol
Re: Transcription of Board Proceedings
Dear Carol:
I enclose herewith a check in the amount of$60.00 made payable to Weld County. This represents
the payment due for our request for a transcription of the proceedings conducted before the Board
of County Commissioners on September 30, 1998 concerning the probable cause hearing for
Windsor Shores, Inc. USR No. 943.
When the transcription is completed, I would appreciate it if you would see to it that it is properly
certified, and then please either mail the transcription to our offices or contact me and we can see
to it that the transcription is picked up.
Your attention to this is appreciated, and should you have any questions in regard to this, please
contact me.
1"){ Yours very truly,
/� WITWER, OLDENBURG,
BARRY& BEDINGFIELD, LLP
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Johr . Barry
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Enclosure
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