HomeMy WebLinkAbout20153262.tiff HEARING CERTIFICATION
DOCKET NO. 2015-79.B
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT,
USR14-0046, FOR AN AGRICULTURAL SERVICE ESTABLISHMENT PRIMARILY
ENGAGED IN PERFORMING AGRICULTURAL, ANIMAL HUSBANDRY OR
HORTICULTURAL SERVICES ON A FEE OR CONTRACT BASIS, INCLUDING USES
SIMILAR TO THE USES LISTED IN SECTION 23-3-40 AS USES BY SPECIAL REVIEW
AS LONG AS THE USE (GRINDING AND STORAGE OF WOOD CHIPS AND LOGS FOR
LIVESTOCK BEDDING) COMPLIES WITH THE GENERAL INTENT OF THE
A (AGRICULTURAL) ZONE DISTRICT - THE ESTATE OF WINDON DAVIS, CIO RICK
DAVIS
A public hearing was conducted on October 7, 2015, at 10:00 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Mike Freeman, Pro-Tem
Commissioner Sean P. Conway
Commissioner Julie A. Cozad
Commissioner Steve Moreno - EXCUSED
Also present:
Acting Clerk to the Board, Tisa Juanicorena
County Attorney, Bruce Barker
Planning Services Department representative, Kim Ogle
Planning Services Engineer representative, Wayne Howard
Health Department representative, Lauren Light
The following business was transacted:
la I hereby certify that pursuant to a notice dated July 17, 2015, and duly published
July 22, 2015, in the Greeley Tribune, a public hearing was conducted on August 19, 2015, to
consider the request of The Estate of Windon Davis, c/o Rick Davis, for a Site Specific
Development Plan and Use by Special Review Permit, USR14-0046, for an Agricultural Service
Establishment primarily engaged in performing agricultural, animal husbandry or horticultural
services on a fee or contract basis, including Uses similar to the Uses listed in Section 23-3-40
as Uses by Special Review as long as the Use (grinding and storage of wood chips and logs for
livestock bedding) complies with the general intent of the A (Agricultural) Zone District, at which
time the Board continued the matter to October 7, 2015, to allow adequate time to perform the
30-day notification to mineral interest owners and lessees as required by Colorado Revised
Statutes, and to be heard at the Planning Commission hearing scheduled for September 15, 2015.
On October 7, 2015, Bruce Barker, County Attorney, made this a matter of record.
Warren Schaeffer, attorney, representing Rick Davis, was advised by Chair Kirkmeyer that
four out of the five Commissioners are present and in the event of a tie vote, Commissioner
Moreno will review the case and make a determination.
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El Kim Ogle, Department of Planning Services, presented a brief summary of the proposal and
reviewed the location stating it is in the three (3) mile referral area of the City of Greeley and the
Town of Windsor and he reviewed their comments for the record. Mr. Ogle also reviewed the
operation plans for the eastern part of the property to be used for the business and stated that
the application materials indicated up to four (4) part-time employees and two (2) truck drivers,
and the hours of operation would be restricted to daylight hours. He reported the application is
due to an active Zoning Violation (ZCV14-00046) for operating a commercial business without
the proper permits and if the application is approved it will correct the zoning violation; however,
if it is denied the business will be removed within 30-days of denial. Mr. Ogle described the
surrounding properties and residences in the area and explained the floodplain designation
stating if the business is conducted outside the floodplain, as planned, no flood permit is required.
He stated that one email with photos and a neighborhood petition of opposition have been
received, and staff has received several phone calls regarding noise, dust, hours of operation,
general safety, and traffic. Mr. Ogle reported that 16 referrals were sent out and five (5) offered
comments and suggestions which were taken into consideration with regard to mitigation efforts
in the Resolution. He displayed images of the site, surrounding views, and nearest residences,
and entered the favorable recommendation of the Planning Commission, with a vote of 7-2, into
the record as written.
El Wayne Howard, Planning Services Engineer representative, provided a brief overview of
the transportation plans and requirements stating the site is located on 59th Avenue, which is a
paved road owned and maintained by the City of Greeley. The site also intersects with C Street,
which is a dead end roadway approximately 2,200 feet in length with shared jurisdiction between
the City of Greeley and Weld County. He reviewed the road right-of-way requirements to be
delineated on the map and stated for tracking control, road base or asphalt will be used. The
Access Permit has been granted, AP#14-00378, and the traffic narrative indicated 1-2 truck
drivers accessing the site each week. Mr. Howard clarified the site qualifies for a drainage pond
exemption due to the floodplain going through the site.
ei Lauren Light, Department of Public Health and Environment, reviewed the water and sewer
provisions stating portable toilets and bottled water are acceptable for the employees. She
clarified that if the site receives anything but clean wood, it will fall under solid waste regulations
with the state, which is covered in the Development Standards. Ms. Light stated the noise is
restricted to the Non-specified level which is the same as residential and commercial. In response
to Chair Kirkmeyer, Ms. Light stated the noise level for both the Residential and Agricultural Zones
is restricted to 50 decibels during the night and 55 decibels during the day.
Phil Brewer, Department of Public Health and Environment, reported in detail, doing a single
noise study to measure the wood grinder noise. He stated he was 90 feet from the wood grinder
with the noise meter on the property line at 9:35 a.m., and the measurement was 73.5 decibels
surpassing the daytime restrictions. Mr. Brewer stated the equipment would need to be relocated
at least 750 feet from the nearest residence to ensure the noise levels would remain in
compliance. In response to Commissioner Conway, Mr. Brewer explained 73.5 decibels is
equivalent to the noise level of talking on microphones in this room. He further clarified that it is a
recognizable amount of noise, generated by the grinder, and penetrating over to the property to
the west.
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la Warren Shaffer, representing the applicant, stated the information regarding the noise was
discussed in detail at Planning Commission and mitigation efforts are underway as the applicant
has purchased a smaller grinder and has committed to measuring the noise to ensure compliance.
He reported having known the family for several years and emphasized the applicant's late father
was pleased with the business operations. Mr. Schaeffer clarified there is not much financial gain
related to this business.
• In response to Mr. Barker, Mr. Schaeffer explained the submission and relevance of the
letter from Paul Saco regarding the applicant's sister and her refusal to cooperate.
12 David Skarka, attorney representing surrounding property owner, Nadar Ghaffarvand, who
is opposed to the application, began by reviewing an ongoing boundary dispute between his client
and the applicant.
• In response to Chair Kirkmeyer, Mr. Barker confirmed the case before the Board is not
regarding the boundary dispute but the USR. Chair Kirkmeyer requested Mr. Skarka focus on the
relevance of the USR application in relation to his client.
IR Mr. Skarka, clarified the relevance of the boundary dispute is because the boundary in
question is where a portion of the operation takes place and the applicant does not have a
signature from Mr. Ghaffarvand as the rightful owner of a portion of this land for the
USR application. He further stated the application is not compatible due to the urban and
residential nature of this community. Mr. Skarka reiterated the concerns from the City of Greeley
and clarified the close proximity of Mr. Ghaffarvand's property to the proposed use. He submitted
a letter from the last tenant who rented Mr. Ghaffarvand's property and read portions of the letter
to highlight the tenant's reasons for moving due to the noise literally shaking the ground while in
operation, grinding that exceeded 75 decibels for continuous number of days, and choking
sawdust and debris in the air. Mr. Skarka stated the applicant should provide evidence that the
use does not negatively impact the neighbors. He reported Mr. Ghaffarvand relies on this rental
property income to support his family and has been renting this property for 15 years. Lastly,
Mr. Skarka presented mitigation suggestions to include: restricted hours of operation, closed on
the weekends, closed on holidays, wood grinding moved to a different location on the property at
least 1,000 feet from the closest residence, and wood grinding should occur during limited hours
such as 10:00 a.m. to 2:00 p.m. In response to Commissioner Conway, Mr. Skarka suggested
the hours of operation end each day by 5:00 p.m. or earlier based on daylight hours.
• Nadir Ghaffarvand, resident of Greeley, stated he has lived on the property for 25 years and
has no animosity against the applicant, but the use is not compatible and the sawdust created
from the operation is a health hazard. Mr. Ghaffarvand emphasized his home is approximately
800 feet from the wood grinding operation and his rental property is only 150 feet from the
operation. He displayed photographs of the dust plume visible from the window of his property,
and expressed his frustration with the process of the zoning violation and now the application.
Mr. Ghaffarvand also explained the problems with the loaders being present and pushing material
around creating noise and dust, and the noise of the grinder continuously running to the point of
having to wear earphones inside his house to simply watch television. He emphasized that this is
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a business to gain income for the applicant which is creating a loss to him with his rental property
being unoccupied because of the noise and dust.
El Shelley Gotchey, neighbor, stated the location of her property and expressed her frustration
with the noise and the eminent health hazard related to sawdust particles. She reported that runoff
from sawdust contains toxins. Ms. Gotchey stated she wore sound block headphones while
gardening. She reiterated this has affected the quality of life for the entire neighborhood and the
area is very residential. She also stated there are many unknowns regarding the business and
the fact of the zoning violation speaks to Mr. Davis regarding following rules. In response to
Commissioner Conway, she could not remember the exact time frame regarding the noise other
than one week it was everyday all day.
Bill Gotchey, neighbor, supported his wife's comments and stated he goes outside every day
and has noticed the agitating noise for over a year and he reported he now has lung issues and
must take medication and never had these medical problems before.
Tim Gideon, neighbor for 25 years, stated it has been a nice quiet little place and now it is
so loud that you can feel the vibration, there is dust everywhere because of the truck traffic, and
it doesn't fit the neighborhood. In response to Commissioner Conway, he pointed out where he
lives on the map.
ID Greg Bailey, neighbor to the east, stated he knows both parties equally and has thought
about the situation for weeks, not out of concern for either side, but more so that the Board would
do the right thing. He stated he does hear the grinding and commented that Ms. Gotchey is five
times further away than the closest neighbor and she is still wearing headphones. Mr. Bailey
questioned why the applicant doesn't move the grinding operation further onto his property and
away from the nearest residence. He also stated that it is a commercial business and to disregard
any notion that it isn't. He mentioned watching the semi-trucks turn over the bike path creating
nuisance and hazard to those utilizing the Poudre River Trail, and with another residential
development coming into the community this is not compatible with the surrounding area. Mr.
Bailey is concerned that even with a violation, the business has not stopped and he is also
frustrated that his neighbor wanted to put in a work shop and was denied so why would it make
sense to have this wood grinding operation next to residential. He stated he knows both
individuals, there is a land dispute and it should be put on hold until the legal issues are resolved.
El Mr. Ghaffarvand was allowed to present new information. In response to Commissioner
Conway, he stated the number of days per month was misrepresented in the applicant's
comments regarding how many times and how often. Mr. Ghaffarvand reported that the grinding
operation was daily through the summer.
El Mr. Schaeffer deferred to Mr. Davis to do his own rebuttal. He also commented on the
motives and the land dispute and reminded the public there is a process with the courts. In
response to Commissioner Conway, Mr. Schaeffer stated no lawsuits have been initiated.
El Rick Davis, applicant, began commenting regarding his neighbor's testimony.
Chair Kirkmeyer gave instruction to the applicant to keep his comments focused on why the Board
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of County Commissioners should approve his case. Mr. Davis agreed and stated he has
addressed the noise issue by getting a smaller grinder. He clarified the noise from the smaller
grinder is below the required 55 decibels and should only be used for grinding approximately
30 days the whole year and is sufficient for what they are doing. Mr. Davis explained what the
product is used for and the reason for the current location is because when they first began the
operation, the closest house was unfinished and seemed abandoned so he thinks it unfair that he
be asked to relocate because now the house is a rental property.
In response to Commissioner Conway, Mr. Davis reiterated there is only going to be one
grinder used less than 30 days per year, during daylight hours only. He also agreed that in the
winter, not starting before 8:00 a.m. is acceptable but in the summer, it needs to be daylight hours.
El In response to Commissioner Cozad, Mr. Davis stated the operation has been on the
property for about four years and they were not aware they needed a permit. Mr. Davis explained
why the wood pile is stored in the current location as a barrier for the sound and dust. He did
concede that he would willing move if and use a water
o e ou d be to it to a different location, necessary,
truck to mitigate the dust issues.
El In response to Chair Kirkmeyer, Mr. Davis stated the new smaller grinder is 350 horsepower
and less than the 55 decibels for sure but he does not have the exact measurement. He further
responded that the property is co-owned between he and his sister and he does not have her
signature on the application.
• In response to Chair Kirkmeyer, Mr. Barker stated the sister's signature is required.
Commissioner Cozad asked staff if this was an incomplete application from the beginning, noted
there is no plat map, and stated she is not comfortable with moving forward. Mr. Barker stated
there is no issue concerning proper notice, and he addressed the property dispute stating the
best evidence they have is the recorded exemption relevant to the legal description on the notice.
la In response to Chair Kirkmeyer, Mr. Schaeffer stated there is no document reflecting the
sister's total agreement.
• Mr. Davis interjected that he had a stroke that kept him in the hospital for three months in
the midst of the process and when he got out, his dad has passed away leaving this a mess in
the new co-ownership between he and his sister, who now does not want to cooperate.
Chair Kirkmeyer offered her condolences but reminded the applicant that the application needs
to be completed and signed by all parties.
• Mr. Barker explained the Condition of Approval that has been added to alleviate the problem
of an incomplete application making it possible to proceed.
tD In response to Commissioner Conway, Mr. Barker stated a continuance to provide time to
attain all signatures would be the clearest and most direct way.
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Chair Kirkmeyer stated she supports the suggestion to continue in light of granting the
applicant a reasonable amount of time to attain the needed signature. In response to
Commissioner Freeman, Chair Kirkmeyer clarified the only testimony allowed for public input at
the continuance hearing would be limited to new information.
e In response to Chair Kirkmeyer, Mr. Davis did not have a date. Chair Kirkmeyer also
mandated that since it is a Zoning Violation, the business needs to cease until a decision is made
regarding the application at the continuance hearing.
te Commissioner Freeman suggested 60 days for the continuance.
CI Commissioner Conway moved to continue the request of The Estate of Windon Davis, do
Rick Davis, for a Site Specific Development Plan and Use by Special Review Permit,
USR14-0046, for an Agricultural Service Establishment primarily engaged in performing
agricultural, animal husbandry or horticultural services on a fee or contract basis, including Uses
similar to the Uses listed in Section 23-3-40 as Uses by Special Review as long as the Use
(grinding and storage of wood chips and logs for livestock bedding) complies with the general
intent of the A (Agricultural) Zone District, to allow the applicant sufficient time to acquire the
signatures needed to move forward and with the understanding that all operations will cease and
desist until such time that the case can be heard before the Board of County Commissioners on
December 9, 2015, at 10:00 a.m. The motion was seconded by Commissioner Cozad, and it
carried unanimously. There being no further discussion, the hearing was completed at 11:30 a.m.
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This Certification was approved on the 12th day of October, 2015.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:dila/1 , ( `de.4 c.� EXCUSED DATE OF APPROVAL
�/ Barbara Kirkmeyer, Chair
Weld County Clerk to the Board
W:4121-**1--e
• Mike Freeman,; ro-Tern
D ty Clerk to th Board
ii4Z Sean P. Conway
1861 � .
`lie A. Cozad
� �`• CUSED
sY Steve Moreno
2015-3262
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