HomeMy WebLinkAbout20211014.tiffMINUTES OF THE WELD COUNTY BOARD OF ADJUSTMENT MEETING
Tuesday, April 6, 2021
A regular meeting of the Weld County Board of Adjustment was held on Tuesday, April 6, 2021, in the
Hearing Room of the Weld County Administration Building, 1150 O Street, Greeley, Colorado. The meeting
was called to order by Chair Michael Wailes at 10:05 a.m.
Roll Call.
Present: Karl Kohlgraf, Lonnie Ford, Kathryn Wittman, Gene Stille, Michael Wailes.
Also Present: Chris Gathman, Department of Planning; Melissa King, Department of Public Works; Bob
Choate, County Attorney; and Kristine Ranslem, Secretary.
Motion: Approve the January 19, 2021 Weld County Planning Commission minutes, Moved by Gene
Stille, Seconded by Kathryn Wittman. Motion passed unanimously.
CASE NUMBER:
BOA21-0001
APPLICANT:
LONGS PEAK DAIRY, LLC
PLANNER:
CHRIS GATHMAN
REQUEST:
APPEAL FOR A VARIANCE FROM SETBACK OF COUNTY ROAD 59
(TO CONSTRUCT A SCALE HOUSE 2 -FEET WITHIN AND SCALE 18 -
FEET WITHIN THE 20 -FOOT SETBACK) IN THE A (AGRICULTURAL)
ZONE AS DELINEATED PER SECTION 23-3-70.6 OF THE WELD
COUNTY CODE.
LEGAL DESCRIPTION:
SE4 SECTION 14, T7N, R64W OF THE 6TH P.M., WELD COUNTY,
COLORADO.
LOCATION:
WEST OF AND ADJACENT TO CR 59; APPROXIMATELY ONE MILE
NORTH OF CR 78.
Chris Gathman, Planning Services, presented Case BOA21-0001, reading the recommendation and
comments into the record. Mr. Gathman provided a brief history of the building permits and violations:
• 5/2/2019 - AGC19-0012 (Agricultural Commercial Building Permit) -20x60 pole frame commercial
ag-exempt storage building on slab (no utilities) was applied for on the adjacentparcel to the east
of parcel # 071114000003.
• 7/8/2020 - A building code violation BCV20-0038 was initiated 7/8/2020 — for constructing abuilding
without building permits on parcel #071114000003. This was the building originallyproposed to be
placed on the adjacent parcel under permit AGC1 9-0012.
• 8/14/2020 - CMN20-0040 (Change of Use building permit to change AGC1 9-0012 to a Commercial
Building Permit and relocate to a different parcel was applied for.
• 9/25/2020 - CMN20-0040 was placed on Zone Hold due to not meeting east setback of CR59 and
permit needs to be amended to include truck scales.
• 10/20/2020 — Received amended CMN20-0040 permit to include truck scales.
• 2/13/2021 — Variance Application submitted to the Department of Planning Services.
• 2/24/2021 — Variance Application determined to be complete and application set up.
Mr. Gathman said that the applicant did provide in their letter that County Road 59 is not a publicly
maintained road and serves property that is solely owned by Longs Peak Dairy and therefore functions as
a private road. Additionally, the applicant argues that there is not full right-of-way in this location and it does
not match the right-of-way located on the section to the south. He added that the main access is from
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County Road 78. Until a full width of right-of-way (60 feet) is constructed, the right-of-way is nonfunctional
and the setback places an unnecessary burden on the property owner. The applicant states that the
minimum variance is the minimum to make possible the reasonable use of the property and structures and
will not cause any harm to the surrounding property owners or uses of County Road 59. The application
indicates that they would be willing to relocate the scale house and the scale to meet the 20 -foot setback
in the event that 60 -foot right-of-way ends up being dedicated and constructed in the future.
The Department of Planning Services finds that the applicant has shown compliance with Sections 23-6-
40.C.1, 23-6-40.C.4 and 23-6-40.C.5. However, Staff has determined that the applicant has not shown
compliance with 23-6-40.C.2 as the setback requirement doesn't distinguish between a right-of-way that is
publicly or not publicly maintained and all properties in the agricultural zone district are required to meet the
setback from county right-of-way. Additionally, under 23-6-40.C.3, Staff believes that the structure and the
sale house were installed in this location before building permits were applied for, therefore it is hard to
argue that these conditions and circumstances do not result solely from the actions of the appellant.
Because the applicant has not shown compliance with two out of the five criteria, the Department of
Planning Services recommends denial of this variance request.
Melissa King, Public Works, stated that it is important to note that the applicant does use unmaintained
section line right-of-way for County Road 59 and private easements to reach a permitted access location
onto County Road 78. While there are no current public safety concerns associated with this proposal,
failure to meet the setback requirements may result in future required relocation of these structures at the
owner's expense.
Mr. Stille asked if there is a county line road adjustment at County Roads 80 and 59. Additionally he said
that the applicant at 78 and 59 does not indicate that this is private property and asked if it is a public road.
Ms. King said that it is not a county -maintained road and there is not sufficient right-of-way. Most of the
roadway shown is in easements. Mr. Stille said it would appear then that it is a private road but the applicant
does not have a sign that says, "private property". Mr. Stille asked if there are any plans for a road to go
through from County Road 78 north to Highway 14. Ms. King said that while we do have that resolution
right-of-way and while it is on the east and west, the county has no plans to create a county -maintained
roadway in that area.
Mr. Ford asked if County Road 59 provides access for any other properties north of Sections 13 and 14.
Ms. King and Mr. Gathman noted that it is not county -maintained north of County Road 80 until County
Road 108, and said it is mainly oil and gas access in that area. Mr. Ford said that the likelihood that this
road would ever be constructed would happen if the dairy decides to sell their land and develop it on either
side of the section line. Ms. King said that in the 2045 Transportation Study it is not proposed to create a
county -maintained road in this area.
Mr. Wailes referred to the access point on County Road 78 and asked when does a road become a private
road and when does it become an unmaintained county road. Ms. King said that this is an unmaintained
section line and added that there isn't county right-of-way in a continuous fashion to have a roadway that
we would recognize as a county road.
Bob Choate, County Attorney, said that this is a public road right-of-way and the county has the right to
build a road there. He added that the County does not have plans to build a road there according to the
2045 Transportation Plan, however the setback from that public road right-of-way it is still enforced through
the building permit process.
Mr. Ford asked if this landowner who owns both sides of the road can fence that road off. Mr. Choate said
that people do but public road right-of-way is there and anyone who wants to use a road that is within public
road right-of-way can. However, this is not contiguous and so they would have to trespass onto someone
else's property in order to go all the way north on that road.
Mr. Stille asked if the owner can purchase the road. Mr. Choate said that they can't purchase the road, but
the County does have a statutory process that is in the Weld County Code about vacating public road right-
of -way. He added that the County did vacate right-of-way on an unmaintained road near this that was
similar that was only used by the surrounding property owner and its lessees for oil and gas.
Mr. Gathman added that there was a vacation of right-of-way to the west and south of this parcel. He noted
that should the Board of Adjustment approve this variance, the Department of Planning Services
recommends the following conditions:
1. A survey shall be provided showing the location of the existing physical roadway and the location
of the County Road 59 right-of-way, in relation to the subject improvements located within the
setback.
2. In the event that the full width of County Road 59 right-of-way is dedicated, and a public road is
constructed, the scale house and scale shall be relocated to meet the 20 -foot setback from the
right-of-way at the property owner's expense.
3. If an on -site wastewater treatment system is installed to serve the scale house, a 10 -foot
setback from future right-of-way must be met or a variance would have to be approved by the
Board of Public Health.
Shannon Toomey, AGPROfessionals, 3050 67th Avenue, Greeley, stated that she is representing Longs
Peak Dairy. She said that Longs Peak Dairy is currently constructing a commercial dairy on this subject
parcel and some surrounding parcels as well. The scale house building was originally permitted as an
agricultural exempt building and was initially going to be a storage building. She said that where they
wanted to place it is where an existing oil and gas structure is. She added that the oil and gas structure
was to be removed; however the timeline for removal wasn't going to work for the construction timeline for
the dairy so they decided then to move that building to the west side of the access road.
Ms. Toomey noted that the scale is a temporary structure and can be moved but it makes sense to have it
as close as possible to the access road because of the trucks needing to get onto it.
Ms. Toomey stated that the right-of-way is not contiguous so in order for someone other than Longs Peak
Dairy to follow that road north would be trespassing onto Longs Peak Dairy's property. She provided a
visual slide of the property in this area that is owned by Longs Peak Dairy which is approximately 2050
acres. She added that most of County Road 59 is going to be on the east side except for the drive that
swings west by the scale.
Ms. Toomey stated that they agreed to relocate the scale if that road would ever be constructed because if
that road were to ever be fully constructed it is likely that the dairy would no longer be there. She said that
they are arguing that the literal interpretation of the right-of-way setback is requiring them to build a 50 -foot
strip on paper that can't be used when in reality the public can't access that strip to begin with.
Ms. Toomey said that while this situation does occur on other agricultural properties it is not uncommon for
the railroad sections to split the 1889 Resolution. She argues that because they are using this as one
contiguous farm and to have a non -usable right-of-way split create this unusable piece of property right in
the middle of their farm is unique to this situation. She added that they believe that it does prevent Longs
Peak Dairy from using their property in service of their business and how they see the best use of their
property.
Ms. Wittman asked why this area cannot be accessed by the public. Mr. Choate said that this roadway is
not maintained so there is still a possibility that others have the right to use it because they have been using
it for so long, but they presented evidence demonstrating that there is very few people who could use this
or benefit from it. He added that it may be thought of as a private road with a few that has more than one
entity that is allowed to use it but it is not generally used by the public because it doesn't go anywhere that
the public goes.
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Tim Naylor, AGPROfessionals, 3050 67th Avenue, Greeley, Colorado said that the road is currently
constructed within the unmaintained right-of-way on the east side of section line. There is a property on
County Road 78 that uses it because the road is within the right of way. Once the road gets north of that
the road continues on Longs Peak Dairy property but it is outside of the right-of-way so technically once
someone would reach Section 13 there is no longer public right-of-way. He added that they would have to
transfer that road to the west side of the road to stay within the County's right-of-way. Mr. Naylor said that
they are not trying to exclude people but they do also operate their dairy and they want to maintain control
of that access. He added that they plan to create an entrance so that the people will know that they are
entering onto the Longs Peak Dairy property.
Ms. Wittman asked the applicant why they don't get the right-of-way vacated. Ms. Toomey said that they
considered that and while they hope the dairy is there for a long time, it is possible that it won't be there
forever and so the County may want to use that in the future. Therefore, they chose this route to follow to
allow the dairy to operate and the county to keep the right-of-way.
Mr. Stille asked the applicant if they have read through the Conditions of Approval and if they are in
agreement with those. Ms. Toomey replied that they are in agreement.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
No one wished to speak.
Motion: Approve BOA21-0001 along with the Conditions of Approval as stated by Staff, Moved by Gene
Stille, Seconded by Lonnie Ford.
Vote: Motion carried by unanimous roll call vote (summary: Yes = 5).
Yes: Gene Stille, Karl Kohlgraf, Kathryn Wittman, Lonnie Ford, Michael Wailes.
Mr. Wailes referred to Section 23-6-40.C.2 and agreed with the applicant's statement and doesn't think the
literal interpretation is appropriate in this application. In the long term, he doesn't think the applicant is
gaining any benefit or right here and that they are actually assuming some responsibility because they know
they will be in the setback and if the county does want to build the road they will be on the hook for moving
the building.
Mr. Wailes referred to Section 23-6-40.C.3 and stated that the oil and gas industry has played a little bit
into this regarding the timing of removing the production facility where this building was originally planned
to be built and has cost them.
Meeting adjourned at 11:06 a.m.
Respectfully submitted,
Kristine Ranslem
Secretary
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