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Home My WebLink About650192.tiffl •C 7 BOOK 784 RESOLUTION Recorded at -- DEC 197E M Rec. No, 1'2CHROSR Mary Ann Feuersteln, Recorder -f WHEREAS, on November 5, 1958, The City Planning Commission approved a preliminary plat for the subdivision of the remaining portion of Belair Park, subject to further consideration being given to street numbers and names, and, WHEREAS, a plat showing the proposed shopping center area at the intersection of 28th Street and 35th Avenue was filed with the City of Greeley Planning Commission on November 5, 1958, and, WHEREAS, on June 19, 1959, in Book 1534, page 261, Weld County records, the area platted for commercial purposes was described in the instrument as Part A, Paragraph A-2 (these were protective covenants), and, WHEREAS, on June 19, 1959, as a condition to final approval, a grant of 40 feet for a right-of-way was required in order to establish a 100 foot right-of-way on 28th Street, and, WHEREAS, however, this grant was never actually executed, and, WHEREAS, however, on May 11, 1960, a right-of-way was granted to the Home Light and Power Company and said company did move its poles and lines to conform to the easement and planned right-of-way, and, WHEREAS, the Weld County zoning resolution was adopted on May 29, 1961, and, WHEREAS, Section 106 - 2 - 9 of the Colorado Statute pertaining to zoning and the authority for County zoning, states that any plan, plots, plats or replats recorded prior to the effective date of the article shall be deemed to have complied with all requirements, and, WHEREAS, all of these enumerated events occurred at a time when there was no County Planning Commission in existence and the City Planning Commission had exclusive jurisdiction within a three mile radius of the city limits, and, -1- 650192 County Attorney : boos 784 1706098 0.2- a. NOW THEREFORE, BE IT RESOLVED that the hereinafter described real property owned by the C.L.M. Land Company was established as a business zone at a time piior to the time the County Commissioners of Weld County acquired jurisdiction over zoning in the County and that based upon Section 106-2-9 of Colorado Revised Statutes, 1963, the Board of County Commissioners of Weld County is bound to recognize the acts taken by the C. L. M. Land Co. between 1958 and 1961 as being acts which constitute compliance with said statute and that the property hereinafter described shall be considered as a business zone, to -wit: All that part of the Southwest Quarter (SW*) of Section Thirteen (13), Township Five (5) North, Range Sixty-six (66) West of the 6th P.M., more particularly described as follows: Beginning at the southwest corner of said Section 13; thence East along the South line of Section 13, a distance of 430 feet; thence North parallel with the West line of said Section 13, a distance of 670 feet; thence West parallel with the South line of said Section 13, a distance of 430 feet to the West line of said Section 13; thence South along the West line of said Section 13, to the point of beginning. Situated in the County of Weld, State of Colorado. Further, that the Weld County Commissioners will accept the 40 foot right-of-way without cost as offered in that letter dated September 10, 1965. Dated this 3td day of November, 1965. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY v. °� �.� a of Board *: 8fldoved: ✓) /' '3;.y7,5 -2- CD O1 yf k §� tn (\wz § • g0 \ / La a 2 )§ CO r THOMAS A. RICHARDSON ATTORNEY AT LAW HARVARD BUILDING YIIII% NINTH AVENUE GREELEY. COLORADO September 29, 1965 WELD CD. COMMISSIINE11S GRECLCY, COLO. The Board of County Commissioners Weld County Court House Greeley, Colorado Gentlemen: RECEIVED SEP3 0 1965 0019I11111Pliti ai9 A I have examined the facts concerning the request of the C. L. M. Land Company on March 3, 1965 and again on September 10, 1965. The request is that the area hereinafter described be zoned as business because it was so designated prior to County zoning. In order to evaluate thisrequest, a chronological review must be made of the events from the inception of this problem to the present time. 1. On November 5, 1958, the City Planning Commission approved a preliminary plat for the subdivision of the remaining portion of Belair Park, subject to further consideration being given to street numbers and names. A plat showing the proposed shopping center area at the intersection of 28th Street and 35th Avenue was filed with the City Planning Commission on the same date. 2. The County Planning Commission was not in existence at this time, and the City Planning Commission had exclusive jurisdiction within a three mile limit of the City limits. 3. On June 19, 1959, in Book 1534, page 261, Weld County records, the area platted for commercial purposes was described in the instrument as Part A, Paragraph A-2. (These were protective covenants). 4. A condition of final approval was the granting of an additional 40 foot right-of-way for road way purposes in order to establish a 100 foot right-of-way on 28th Street. 5. This right-of-way was granted to the Home Light and Power Company on May 11, 1960 and the said light company did move its poles and lines to conform to the easement and planned right-of-way. 6. The Weld County zoning resolution was adopted on May 29, 1961. The above facts are listed in chronological order that that the steps taken by the C.L.M. Land Company and City Planning Commission may be followed. -1- Under 106 - 2 - 9 of the Colorado Revised Statutes pertaining to the County Planning Commissions and zoning, the following law is quoted: "If any plan, plats, plots or replots have been recorded prior to the effective date of this article without bearing thereon, by endorsement or otherwise, the approval of such commission, such plan, plats, plots or replots shall be deemed to have complied with all requirements of this article". Also under 106 - 2 -19 of the Colorado Revised Statutes pertaining to Existing Structures and Lawful Use of Land, the following law is quoted" "The lawful use of a building or structure, or the lawful use of any land, as existing and lawful at the time of the adoption of a zoning resolution, or in the case of an amendment of a resolution, then at the time of such amendment, may be continued although such use does not conform with the provisions of such resolution or amendment, and such use may be extended throughout the same building, provided no structural alteration of such building is proposed or made for the purpose of such extension". Further, the law provides that "The Board of County Commissioners may in any zoning resolution provide for the termination of nonconforming uses, either by specify- ing the period in which nonconforming uses should be required to cease, or by providing a formula whereby the compulsory termination of a nonconforming use may be so fixed as to allow for the recovery or amortization of the investment in the nonconformance". Under Section 7 of the Zoning Resolution, adopted by Weld County on May 29, 1961 at page 15, the following rule was set forth: "Except as provided in this section, the lawful use and location of any building or land existing at the time of enactment of this resolution, or of any amendments to this resolution, may be continued even though such use or location does not conform to the requirements of this resolution". The general law on this subject is as follows: "If, prior to the adoption of a zoning restriction (either an original zoning ordinance or an amendment thereto) property was used for a then lawful purpose or in a then lawful manner which the resolution would thereafter prohibit asnon-conforming, such property is generally held to have acquired a vested right to continue such nonconforming use." Ohio State Student Trailer Park Co-op v. Franklin County, Ohio, 123 N. E. 2nd 286. The doctrine of vested non -conforming use came from the reluctance of courts to give to zoning regulations a retroactive effect which would destroy existing property right. Euclid Realty Co. v. Village of Ambler, Ohio 272 U.S. 365. -2- Some question is then raised as to "existing use". Must the use be actual or may the use be contemplated. Then must the use be substantial. The strict view on this point is that the use must be actual and substantial. In the case before us, the use was neither actual nor substantial. It is my opinion that the doctrine of nonconforming use does not apply in this case. The facts of the case, however, do indicate to me that the County is bound to recognize this area as a business zone. 1. The City Planning Commission approved the area as business on November 5, 1958, subject to street numbers and names. 2. On June 19, 1959, the area plat was recorded describing the area for commercial purpose. 3. On June 19, 1959, as a condition to final approval, a grant of 40 feet for a right-of-way was required. (If this actually had been done, this question would not have arisen). 4. On May 11, 1960, an easement was granted and used by the Home Light and Power Company to move their poles back in contem- plation of the right-of-way grant. 5. On May 29, 1961, Weld County adopted the zoning resolution which placed certain areas under County zoning and the jurisdiction of the County for zoning. 6. Section 106 - 2 - 9 of the Colorado Statutes pertaining to zoning and the authority for County zoning, states that any plan, plots, plats or replats recorded prior to the effective date of the article shall be deemed to have complied with all requirements. Based upon the six above points, it is my opinion that the Board of County Commissioners should recognize this area as a business zone, for to do otherwise would cause the zoning regulations of Weld County to be applied in a retroactive manner. Yours tr ly, Thomas A. Richardson TAR:hl --?17 CHARLES A. KAROWSKY ATTORNEY AT LAW SUITE 200 KINNEY BUILDING - GREELEY. COLORADO - TELEPHONE 352.3161 September 10, 1965 Weld County Commissioners Greeley Colorado Gentlemen: As you have been previously advised, this office represents CLM Land Co., a Colorado Corporation, of which Harold Winograd and John B. Reynolds are the sole stockholders. I appeared before you in the company of Mr. Winograd and in the presence of Mr. Thomas A. Richardson, County Attorney, on March 3, 1965. Although exact minutes were kept of the meeting, I should like briefly to refresh your memory. The former owners of CLM Land Co., in planning their subdivision known as Belair Park, submitted a preliminary plat to the City Planning Commission on November 5, 1958, and said plan indicated the business or shopping center area at the corner of 28th Street and 35th Avenue. This plat is presently on file with the City Planning Commission and was approved by them at their meeting of November 5, 1958, subject to further consideration being given to street numbers or names. Additionally, a dis- cussion was held wherein it was indicated that an additional 40 foot right-of-way was desired for roadway purposes, in order to establish a 100 foot right-of-way on 28th Street. Subsequent thereto a conversation was had by Mr. Ray Murphy, then one of the principal stockholders of the company, with the Commissioners, at which time it was agreed that such a right-of- way would be granted. For reasons which the present owners of the company are unable to explain, a conveyance was never actually delivered to the Commissioners. In confirmation of the action taken by the City Planning Commis- sion, Protective Covenants dated January 1, 1959 were placed on WELD CO, COYk11SSIDNERS GREftf - CnLO. RECr ED SEP1 6 1965 9171�191]A1Iii!I11EIS�4i51S A - Weld County Commissioners Page 2 September 10, 1965 record on June 19, 1959 in Book 1534 at Page 261, Weld County Records, wherein a business area was designated consistent with the plat previously discussed herein, said business area being described as follows: All that part of the Southwest Quarter (SW3) of Section Thirteen (13), Township Five (5) North, Range Sixty-six (66) West, of the 6th P.M., more particularly described as follows: Beginning at the southwest corner of said Sec- tion 13; thence East along the South line of Section 13, a distance of 430 feet; thence North parallel with the West line of said Section 13, a distance of 670 feet; thence West parallel with the South line of said Section 13, a distance of 430 feet to the West line of said Section 13; thence South along the West line of said Section 13, to the point of beginning. Pursuant to the agreement made with the County Commissioners as required by the City Planning Commission, an easement was granted to the Home Light and Power on May 11, 1960 and there- after the Home Light and Power Company actually moved their lines and poles to conform with the grant of easement. All of these events occurred at a time when there was no County Planning Commission in existence and the City Planning Commis- sion had exclusive jurisdiction within a three mile radius of the City limits. CIM Land Co. takes the position that the area which has been specifically described above has, by the facts hereinabove de- tailed, actually been established as a business area prior to the time that the Weld County Commissioners either established Weld County Commissioners Page 3 September 10, 1965 a Planning Commission or any resolutions pertaining to County zoning. I have discussed this matter at great length with Mr. Richard- son, the County Attorney, who has done extensive research in connection with the problem. I do not believe I am presumptuous in indicating that Mr. Richardson has expressed the opinion that the request I am about to make in behalf of CIM Land Co. is on sound ground. Accordingly, I respectfully request that a resolution be adopted for purposes of being placed on the records of Weld County, reciting whatever facts you and the County Attorney feel are essential to establish the necessary record for such and further acknowledging that the area in question was estab- lished as a business zone at a time prior to the time the County Commissioners acquired jurisdiction over zoning in the County, and that the property must be considered as a business zone. Such procedure would obviate the necessity of any formal pro- ceedings before the Planning Commission or your body. May I respectfully suggest that the application herein contained be referred to the County Attorney for a formal consideration of the propriety of this request. Please be advised that in connection with the resolution herein sought, CLM Land Co. will execute and deliver, without cost to the Weld County Commissioners or to the State Highway Department, if requested, the above described 40 foot right-of-way without cost. Of necessity, CIM Land Co. will be obliged to advise the State Highway Department of such fact in order that appropriate credit and adjustment be given to the Highway Department for such 40 foot strip in connection with any condemnation proceed- ings initiated to acquire additional right -or -way. Very tru arles A. Karowsky Pi f GEO. MOSIER. CHAIRMAN PRICE HOPKINS. V. CHAIRMAN JOHN WATSON A. A. TINN ELMER L. SHULTZ FLORENCE CUTLER. SECY. PHONE 353-2212, ExT. 20 R. E. PALMQUIST, ADMINISTRATOR PHONE 588-2865 COUNTY COMMISSIONERS ELMER L. SCHULTZ, CHAIRMAN TOM V. REED, CHAIRMAN PRO-TEM MILLARD HEWING COUNT/ ATTORNEY SAMUEL S. TELEP WELD COUNTY PLANNING COMMISSION Board of County Commissioners Weld County Colorado Gentlemen: Windsor, Colorado March 9, 1965 rTh In line with your request of the 5th and the minutes of your meeting of the 3th, regarding the C.L.M.Larrl Co land at 35th Ave and 28th St., I give you my findings and would appreciate your comments, for presentation to the Planning Commission. In doing this I felt that this should come to you for consideration by our Attorney, Mr. Richardson. On November 5, 1958 The City Planning Commission , under item #3, and I quote, " Belair Part% A motion was made by Carl Wens ans seconded by Price Hopkins that the Planning Commission give conditional approval to the preliminary *lat for subdivision of the remaining portion of Belair Park, subject to futther consideration being given to street numbers or names. Chairman called for a vote and declared the motion carried." The minutes are signed by John M. Wheeler, Chairman and B.H.Cruce, Secty. I have personally talked with Ben Cruce and Price Hopkins and both have stated that the intent of the Planning Commission was , only the approval of the preliminary of the subdivision. I have looked up Book 1534 at Page 261, in the Weld County records and this is deed covenants and there is a paragraph, giving the dimensions and the location of a Business area. I have talked with Harold Winograd, and he has stated that they want this for Business, but that no plans are eonsumated at the present. I have not found anything covering the 40 ft. right of way that is mentioned, neither do I fine it on record. As to the price of the land for the purchasing of right of way, there are many factors which prevail at the moment. 1. There are two shopping Center locations in the area that have not been developed, even though they have been palnned, 2. Some shopping centers are having a struggle at the moment. 3. The value of the property will be enhanced by the construction of 34 by pass and not the highway enhanced by the property. My point now is that there is a possibility that this land should be considered whether or not the business designation is valid as is, for business at some future date, but not at the moment. My thinking is based on the fact that there is a cemetery south and the Elks Club Southwest. The land should have a buffer of some sort for Residential value between it and the cemetery. The princple consideration that the owners are bringing forth is the dedication of 40 ft., if we acknowledge the business area. Kindly give me your comments and all will be presented to the Planning Commission.Which can be done either on March 15 th or April 5th. If it should be the feeling of all concerned that this is Business Area, we should take steps to get the 40 ft. dedication for highway purposes. Should I be able to be of further service, please let me know. Respectfully yours (2,42 I R.E.Palmquist Planning Administrator ELMER L. SHULTZ. CHAIRMAN JOHNSTOWN EDWARD L. DUNBAR. CHAIRMAN PRO TEN GROVER PERCY P. ODLE. MEMBER KERSEY THOMAS A. RICHARDSON COUNTY ATTORNEY ANN SPOMER, COUNTY CLERK AND CLERK OF BOARD PHONE 352.2212 En 21 OFFICE OF THE BOARD OF COUNTY COMMISSIONERS O.1.3iE`Eis'E;iv irO: March 5, 1965 Received this 5th day of March 1965, a copy of the minutes of the meeting held between the Board of County Commissioner, Weld County, Colorado, and the C. L. M. Land Company in regard to future plans for Belair Park Area. 42. Weld County Plan lbg Commission cc: Charles Karowsky MINUTES OF MEETING C. L. M. LAND COMPANY AND BOARD OF COUNTY COMMISSIONERS, WELD COUNTY MARCH 3, 1965 Harold Winograd and Charles A. Karawsky appeared in behalf of the C. L. M. Land Company appearing before Elmer L. Shultz, Percy P. Odle and Thomas A. Richardson, County Attorney, and advised the Commissioners as follows: On November 5, 1958, the City Planning Commission approved a preliminary plat for the subdivision of the remaining portion of Belair Park subject to further consideration being given to the street numbers and names. A plat showing the shopping center area at the intersection of 28th Street and 35th Avenue was filed with the City Planning Commission on the same date. This was at the time when there was no County Planning Commission in existance and the City Planning Commission had exclusive jurisdiction within a three mile limit of the city limits. The area plated for commercial purposes is specifically described in instrument recorded on June 19, 1959, in Book 1534 at Page 261 Weld County records Part A Paragraph A-2. A condition of final approval was the granting of an additional 40 foot right-of-way by the C. L. M. Land Company to Weld County, Colorado, for read way purposes in order to establish a 100 foot right-of-way on 28th Street. Thereafter and pursuant to this understanding an easement was granted to the Home Light and Power Company on May I1, 1960 and thereafter the Home Light and Power Company physically moved their poles and lines to conform with this grant of easement. n C. L. M. Land Co. Bd. of Co. Comsnrs. C. L. M. Land Company contends that the area described in Paragraph A-2 of the above described recorded instrument is presently designated for (commercial shopping center) purpose and has further indicated its desire to increase the size of the contemplated shopping center area by adding to it lands which are specifically described on Page 2, hereinafter designated instrument. The description of which is included in the description contained on Page 2 of instrument dated February 12, 1964 and recorded in Book 508 under Reception Number 1430054, this contemplated shopping center area would contain approximately 12 acres more or less. C. L. M. Land Company requested the Commissioners to put the Weld County Planning Commission on notice as to the events described above in order that they may be advised in deliberating on any future applications for commercial or shopping areas that might be presented to it and in order that they may resolve with the Weld County Commissioners the problems of the 40 foot easement agreed upon and which has not been conveyed as a matter of record. The C. L. M. Land Lbompany requested to be advised of action taken by the Commissioners in the form of a copy of notice given to the Weld County Planning Commission. Deputy County Clerk cc: Karowsky, CA Planning Commission Hello