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MINUTES OF THE BOARD OF COUNTY COMMISSIONERS

 

Monday, FEBRUARY 13, 2006

 

LAND USE HEARING

(#17)

 

The Board of County Commissioners met at 3:00 p.m. with Rob Helmick, Principle Planner.  Chair Gibson presided and Commissioners Wagner and Rennels were present.  Also present were:  Porter Ingrum, Matt Lafferty, Karin Madson, and Al Kadera, Planning Department; Matt Johnson, Engineering Department; Doug Ryan, Environmental Health Department; Jeannine Haag, Assistant County Attorney; and Gael Cookman, Deputy Clerk. 

 

Chair Gibson opened the meeting with the Pledge of Allegiance, and asked for public comment on the County Budget and the Land Use Code.  No one from the audience addressed the Board regarding these topics.   Chair Gibson noted that the following Items 1 - 3 are scheduled to be tabled:  Louise Lane Right-of-Way Vacation, File # 05-S2528; Lawrence Heights Lots 7, 8, and a Portion of Lot 9 Amended Plat, File #05-S2529; and the Friedrich Appeal, File #05-G009; he then clarified that no one was present to discuss these items. 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners table the Louise Lane Right-of-Way Vacation, File # 05-S2528; Lawrence Heights Lots 7, 8, and a Portion of Lot 9 Amended Plat, File #05-S2529; and the Friedrich Appeal, File #05-G0097; to March 6, 2006, at 3:00 p.m.

 

Motion carried 3-0.

 

Mr. Helmick also requested that Item 6, regarding the Meadowlark Ridge Conservation Development Appeal, File #06-G0099, be tabled at the applicant's request.  No one was in attendance to discuss Item 6.

 

M O T I O N

 

Commissioner Wagner moved that the Board of County Commissioners table the Meadowlark Ridge Conservation Development Appeal, File #06-G0099, to March 20, 2006, at 3:00 p.m. 

 

Motion carried 3-0.

 

4.  JACKSON ZONING VIOLATION - #04-ZV0240:  This is an alleged violation of a property owner operating a special events venue for weddings, art and craft shows, and other public events in the O-Open Zoning District.

 

A complaint was received in September 2004, through the County Commissioners’ Office.  The complaint centered around the lack of adequate parking for the patrons of the special events facility on this site.  While it may be legal to park in the public right of way there is not much room on the shoulders of this road to accommodate parking and pedestrian movements.

When the first notice was sent to the property owners they admitted to hosting the special events but they claim non-conforming status under the Land Use Code.  Staff has not been able to substantiate a legal use on this site that was commenced prior to November 29, 1973, and never abandoned for more than 12 months.  It appears that there may have been some activities on the site over the years but not the level of activity that exists today.  Increased traffic on County Road 52E also makes the situation less safe than it may have been 25 years ago.

Ms. Jackson submitted some materials to support her claim of a non-conforming use.  Mr. Timm, the Planning Director, reviewed the materials and rendered an opinion that the current use is not a non-conforming use, therefore the use needs to be approved or discontinued.  Some of the submitted materials are attached to this report.

Staff believes the use should be reviewed through the Special Exception and Site Plan Review processes to address access, parking and other neighborhood impacts created by the activities on this site or the use should be discontinued.

Staff findings are as follows:

1.   The property in question is zoned O-Open.

2.   There is a single family dwelling on the site that was built in about 1880.

3.   The owner alleges that the home has been used for special events over the years but Staff has no evidence that a non-conforming use was legally established and maintained on the site.

4.   The O-Open Zoning District does not permit business or commercial uses, except in the context of a home occupation.  Approval has not been sought by the owners to operate an events venue on this site.

5.   Continued operation of a business on this site will be detrimental to the neighborhood and will adversely affect other property.

6.   Allowing the use to continue will give an unfair competitive advantage to this business over similar businesses which have located on approved sites.

 

Staff recommends that the Commissioners find that a violation exists and require that the special events cease on this site within 30 days or the property owner commences a process under the Land Use Code to get approval for the business.  If the use is not discontinued or the approval process is not commenced by the deadline, then legal action should be authorized to enforce the Land Use Code.

Mr. Kadera explained the alleged violation as outlined above.  Property owner Judith Jackson explained that the property has been used for various types of businesses since 1927.  She explained that she began hosting special events and weddings in 1996, but has never had to apply for a special events permit, as she has never had gatherings of 300 or more people at any one time.  Mrs. Jackson noted that the Bellvue community supports her business and the sharing of her historical property with the community.  Mrs. Jackson stated that she did have a couple of incidents in 2004 that caused her to shut down the events due to noise.  Mrs. Jackson stated that Section 4.3.2 of the Land Use Code allows home owners to rent or lease their property for as little as one day at a time, which is what she intends to do in order to comply with the Land Use Code and avoid the zoning violation. 

Chair Gibson opened up the hearing for public comment.  No one addressed the Board regarding this item.

Commissioner Rennels stated that the Board is in the process of looking at methods to encourage rural economic development in order to support individuals and afford them opportunities that will allow them to remain on their properties.  Commissioner Rennels stated that if an arrangement can be made to allow Mrs. Jackson to lease her property for these functions, then she would not support the zoning violation. 

Commissioner Wagner asked for Ms. Haag's opinion regarding the property owner's ability to lease their residence for special events or weddings.  Ms. Haag stated that the Land Use Code says it can be leased or rented for any period of time, but it does not imply that it can be leased for any use.  Mrs. Jackson stated that she obtained legal advice and her attorney stated that the property could be leased for a wedding.  Chair Gibson asked if the zoning had ever been changed.  Mr. Kadera stated that the zoning has always been O-Open and if a property has established a non-conforming use that ceases to exist for more than one year, the property owner must then go through the Special Exception Process to obtain the right to re-establish and continue the use.  Some discussion ensued regarding the availability of parking and Mrs. Jackson stated that individuals can legally park along the road side, and there is a parking area two blocks down the road that individuals can utilize. 

Commissioner Rennels suggested tabling this item in order to give Mrs. Jackson's attorney time to confer with Ms. Haag on the issue of leasing her property, and to determine how the noise and parking issues might be mitigated.

 

M O T I O N

Commissioner Rennels moved that the Board of County Commissioners table the Jackson Zoning Violation, File #04-ZV0240, to March 20, 2006, at 3:00 p.m., in order to give the property owner and her attorney time to confer with the Assistant County Attorney regarding the leasing of property under the Land Use Code, and to determine how the noise and parking issues will be mitigated.

Motion carried 3-0.

5.  EDUCATORS OUTLET APPEAL - #05-G0096:  This is a request to appeal Section 8.2.8.A of the Larimer County Land Use Code to deviate from the standards for wetland buffers.

 

The subject request is to allow a 25 foot wetland buffer on Lots 1 and 3 of the Summit View Industrial Park Planned Development 3rd filing, where 50 feet is required. The purpose of the request is to accommodate development of the lot which has a limited building area due to the existing wetlands and major utility easements. Even with a reduced buffer of 25 feet, some of the existing wetlands on the site will be removed and mitigated on less developable portions of the property.

In June 2000 the Summit View Industrial Park Planned Development 3rd Filing Final Plat was approved by the Board of County Commissioners.  The approval of this land division does not appear to have included any concerns regarding the existing wetlands, and was not based upon the current Land Use Code as the application was submitted and reviewed prior to the Code’s adoption.

Since the recordation of the Summit View Industrial Park Planned Development 3rd Filing, Larimer County has adopted specific regulations for the protection of wetland areas, which wetland standards require a minimum 50 foot buffer for wetlands less than one acre in area.  Therefore, development of Lots 1 and 3, which has a wetland area less than one acre in area, will require a buffer of 50 feet from these existing wetlands.  Prior to the current wetland regulations the Larimer County Development Services Team relied solely upon Division of Wildlife and the Army Corps of Engineers to determine what was necessary for wetland protection.  While these Agencies are still an important part of our decisions regarding wetland buffers they are only so when buffers greater than our minimum standards are necessary.

Review of the existing wetland by the Porter Ingrum, Planner II Environmental Emphasis, for Larimer County has resulted in an opinion that the existing wetland on Lots 1 and 3, which is abutted by two streets, does not warrant a 50 foot setback and believes that a 25 foot buffer would be sufficient in this instance.  Furthermore, Mr. Ingrum has noted that the disturbed wetlands on the property will require mitigation consistent with County regulations, and such mitigation shall require review and approval prior to the completion of a site plan review for the development of the site.

The Development Services Team finds that a 25 foot buffer for the wetlands on Lots 1 and 3 of the Summit View Industrial Park Planned Development 3rd Filing will provide sufficient separation and protection from new development on properties

The Development Services Team recommends that the Board of County Commissioners approve the applicants request to allow a 25 foot wetland buffer rather than the required 50 foot wetlands buffer.

Mr. Lafferty explained the appeal as outlined above.  The applicant, Robert Bond, stated that they wish to use the property adjacent to his existing building in order to expand his business.  Commissioner Rennels asked Mr. Bond to explain how the wetlands mitigation will occur.  Mr. Bond explained that there is a detention pond on the south half of the property and the wetlands will be moved to this area.  Jack Blake, Stewart and Associates Engineer, then gave a detailed description of how the wetlands would be moved to the detention pond, and that the upper portion of this area would be used for stormwater run off.  Chair Gibson then opened up the hearing for public comment.

Doug Moore, Environmental Planner for the City of Fort Collins, stated that the City of Fort Collins is very supportive of this project and also requires mitigation of wetlands whenever possible.   There was no further public comment, and the Board indicated their support of the project

 

M O T I O N

Commissioner Wagner moved that the Board of County Commissioners approve the Educators Outlet Appeal, File #05-G0096, and allow a 25 foot wetland buffer rather than the required 50 foot wetlands buffer

Motion carried 3-0.

 

The hearing recessed at 3:45 p.m.

 

 LAND USE HEARING

(#17 & 18)

 

The Board of County Commissioners reconvened at 6:30 p.m. with Jim Reidhead, Rural Land Use Center Director.  Chair Gibson presided and Commissioners Wagner and Rennels were present.  Also present were: Rob Helmick and David Karan, Planning Department; Doug Ryan, Environmental Health Department; Christie Coleman, Engineering Department; Jeannine Haag, Assistant County Attorney; and Gael Cookman, Deputy Clerk. 

 

1.  MEADOWS AT ROLLING HILLS PLANNED LAND DIVISION AND PLANNED DEVELOPMENT REZONING - #04-S2337:  This is a request for a Planned Land Division to divide a 39 acre parcel into 11 residential lots ranging from 2.3 to 3.88 acres, to create 3 outlots, and Rezoning to Planned Development.   The site is located east of County Road 54G within the LaPorte Plan Area.  There is a concurrent rezoning to Planned Development as defined below.  In addition, the applicant requests appeals to: 1) LCLUC, Section 3.1.2.a to allow a smaller-than-required separation between access points on County Road 54G, and 2) LCLUC Section 8.14.2.S on connectivity.

At a public hearing on November 15, 2005, the Larimer County Planning Commission heard the Meadows at Rolling Hills Land Division (PLD) and Planned Development (PD) rezoning.  Public comment included objections to the pedestrian connection to Moccasin Circle, questions as to whether or not the emergency access would be used except in an emergency and a request for a ban on pit bulls.  Given the extent and nature of comments, this submittal is a discussion item.  The applicant, Staff and the Planning Commission are in complete agreement.

 

The Development Services Team and Planning Commission recommend the following:

 

The Meadows at Rolling Hills PLD/PD, appeal to Section 3.1.2.a (access spacing) be approved.

The Planning Commission recommends to the Board of County Commissioners that the Meadows at Rolling Hills PLD/PD, appeal to Section 8.14.2.S (connectivity) be approved.

The Planning Commission recommends to the Board of County Commissioners that the Meadows at Rolling Hills Planned Land Division be approved subject to the following conditions:

 

1.  The Final Plat shall be consistent with the approved Preliminary Plat and with the information contained in the Meadows @ Rolling Hills Planned Land Division (file #04-S2337).  The applicant shall be subject to all other verbal or written representations and commitments of record for the Meadows @ Rolling Hills PLD& Rezoning.

2.  Engineered foundations are required for new habitable construction on this site as recommended by the Colorado Geologic Survey. 

3.  Passive radon mitigation measures shall be included in the construction of all new residential structures on these lots.  The results of a radon detection test once the structure is enclosed but prior to issuance of a Certificate of Occupancy shall be submitted to the Building Department.  As an alternative, a builder may present a prepaid receipt from a radon tester that specifies that a test will be done within 30 days. A permanent Certificate of Occupancy can be issued when the prepaid receipt is submitted.

4.  The following fees shall be collected at building permit for new single family dwellings. Thompson R-2 school fee, Larimer County fees for County and Regional Transportation Capital Expansion (TCEFs), Larimer County Regional Park Fee (in lieu of dedication) and drainage fee.  The fee amount that is current at the time of building permit application shall apply. Both the Development Agreements and the Disclosure Affidavits will reference this requirement.  The County Engineer’s office also requires a Development Construction Permit, prior to commencing development construction.

5.  The applicant shall execute a Disclosure Notice for approval by the County to be recorded with the Final Plat.  This notice shall provide information to all lot owners of the conditions of approval and special costs or fees associated with the approval of this project.  The notice shall include, but not be limited to, the issues related to rural development, fire department requirements, the requirement for any access permits and culverts, the recommendations of the State Geological Survey (addressing foundations), building envelopes, the need for passive radon mitigation, and the issues raised in the review and/or related to compliance with the Larimer County Land Use Code.

6.   Basement construction will not be permitted on lots 5 and 6.

7.  Any required right-of-way along County Road 54G will be dedicated at part of the final plat process.

8.   Rezoning to Planned Development will not be effective until and unless the Board of County Commissioners approve a Final Plat and the plat and all necessary documents are duly recorded.

 

 

The Development Services Team and Planning Commission also recommend the Meadows at Rolling Hills rezoning to Planned Development be approved subject to the following conditions:

 

1.  Principal uses

  Agricultural.

  1.  Farm (R)

  2.  Greenhouses (R)

  Residential.

  1.  Single-family dwelling (R)

  2.  Group home for developmentally disabled (R)

  3.  Group home for the elderly (R)

  Institutional:

  1.  Child/elderly care home (R)

  Recreational.

  1.  Riding academy (S)

  Accommodation.

  1.  Bed and Breakfast (S)

2.  Lot, building and structure requirements

  1.  Minimum lot size – 2.3 acres.

  2.  Minimum setbacks:

    a.  Front – 25’

   b.  Side – 5’

   c.  Rear – 10’

  d.  Streams, creeks and rivers – 100’ from centerline of the established watercourse.

3.  Maximum building height – 40’ measured from the existing grade.

4.  No parcel can be used for more than one principal building; additional buildings are allowed on a parcel if they meet the accessory use criteria in Section 4.3.10 except as modified above in Section 4.1.22. 

Mr. Karan discussed connectivity, access points, and drainage.  He noted that the applicant has met the original Condition 8, regarding the requirement to provide evidence that the Eckbergs intend to transfer ownership of land for primary right-of-way access.  Mr. Karan then proposed a new Condition 8, which requires that Rezoning to Planned Development will not be effective until and unless the Board of County Commissioners approve a Final Plat and the plat and all necessary documents are duly recorded. 

 

Commissioner Rennels asked who requested the footpath access.  Mr. Karan stated that County Staff has asked for the footpath as connectivity between the two residential neighborhoods.  Chair Gibson asked if the School Board was consulted to determine if there was need for school buses to connect through the two residential neighborhoods.  Mr. Karan stated that the School Board was not consulted regarding this project.  The applicant, Connie Barnes, stated that she will retain an easement on her property for pedestrian access. 

Chair Gibson opened up the hearing for public comment and Dick Stutz addressed the Board.  Mr. Stutz asked questions regarding the access and the responsibility of fixing the existing road.  Ms. Coleman explained how the primary access will be constructed and that it will be the applicant's responsibility for reclaiming the existing road.  Ms. Barns stated that she is purchasing more property in order to construct the road along the utility easement, and then once the utilities are place, she will begin reclamation of the current road.  Ms. Barns estimated this could take between 2 - 3 months.  Commissioner Wagner asked who will be responsible for completing the pedestrian access.  Ms. Barns stated that this will be addressed in the covenants, and that they will have to estimate the cost and set it aside for construction, if and when that will occur.  The Board was in support of the project. 

 

M O T I O N

 

Commissioner Wagner moved that the Board of County Commissioners approve the: 1) Meadows at Rolling Hills Planned Land Division Preliminary Plat, 2) Meadows at Rolling Hills Rezoning to Planned Development, 3) Appeal to LCLUC, Section 3.1.2.a, and 4) the Appeal to LCLUC Section 8.14.2.S on connectivity all as shown in File # 04-S2245 and recommended by the Larimer County Planning Commission and the Development Services Team.

 

Motion carried 3-0.   

 

2.   KAPAUN/MARSHALL/WACHA PRELIMINARY RURAL LAND USE PLAN (RLUP):  This is a request for preliminary approval to divide 105 +/- acres into seven (7) lots in the following manner:  Six (6) single-family residential lots located on about 21.5 acres, (including 2 existing home-sites—the existing Wacha residence will be razed or moved to accommodate the new reservoir), and one (1) Residual Lot (private open space) with no home-site.  The Residual Lot is about 83.5 acres and will be protected from further development in perpetuity by either a covenant or conservation easement, as required by the RLUP.  The land comprising the Residual Lot has been acquired by the Little Thompson Water District and the Central Weld Water District (the Districts) as part of the proposed Dry Creek Reservoir project and a portion of this Residual Lot will be under water.

The property is located in Section 24, Township 4 North, Range 70 West.  It is generally located 3 miles west of Berthoud, between County Roads 6 and 8E.  The property consists of dry grazing land.  The land could be divided into three (3) 35-acre parcels without County input.  The property is zoned FA-1 Farming.  Under the property’s current FA-1 zoning (1 home site per 2.29 acres), up to 9 homes could potentially be built if brought through the County's Conservation Development (CD) process if adequate public facilities are provided. 

 

Three residences already exist.  Two residences will remain and are located on the proposed Lots 1 and 3.  The existing Wacha residence will be razed or moved to accommodate the new reservoir.  Ms. Wacha plans on building a new residence on that portion of her property not acquired by the Districts.  It will occupy either Lot 5 or 6 if this RLUP project is completed.  The new residential lots have been located to be adjacent to the existing residences on the portion of land acquired by the Districts. A requirement will be a dedication of a 60’ access and utility easement along the south part of each residential lot.  The project is part of the Districts’ Dry Creek Reservoir project.  Part of the residual lot will be under water.  Access to these new lots is proposed from the historic County Road 6 alignment.       

The residential lots will range in size from 2.5 acres to almost 5 acres in size.  Water to these lots will be provided by Little Thompson Water District and each lot will have individual septic systems.  The applicant is proposing appropriate architectural guidelines for this project.  The surrounding properties consist of parcels ranging in size from 1.5 acres to 35 acre parcels or larger.  To the south is the Foothills Estates Subdivision with 67 lots on 174 acres and the Berthoud Estates Subdivisions on 306 acres with 118 lots.  To the north are two proposed RLUP projects with a total of 10 residential lots on 175 acres and the site of the proposed Dry Creek Reservoir; further north is the Cushman Estates Subdivision with 33 lots on 174 acres.     

There is significant development pressure in this area for 35-acre parcels and smaller residential lots, if available.  This pressure is caused by general growth along the Front Range, as well as by pressure specifically associated with growth in Berthoud and Loveland to the east and north; and attractiveness of “close-in” foothills property.  The proposed density of the Kapaun/Marshall/Wacha Rural Land Use project, one unit per 17.5 acres, appears to be compatible with the neighborhood.

The residual land, approximately 83.5 acres and comprising roughly 80% of the property, will be protected in perpetuity from further development, as required by the RLUP.  A portion of the residual land will be under water as part of the Districts proposed Dry Creek Reservoir.  It will have a management/use plan to foster its long-term health.  The owners of the residual land parcels will be responsible for maintaining the residual land and for providing a periodic monitoring report(s) to the County. 

A road maintenance agreement will include provisions for access road maintenance.  Lots 1 thru 6 will be party to this agreement.

A neighborhood meeting was held on August 24, 2005, at the Berthoud Community Center in Berthoud.  About 20 area residents attended.  The concerns were mainly about road access issues, road maintenance issues, and the legality of public access. 

Referral agency comments were also solicited.  Representatives from the County Engineering Department, Health Department, and Rural Land Use Advisory Board have visited the site and have consulted with the Rural Land Use Center during the conceptual design phase.

 

 The landowners in the Kapaun/Marshall/Wacha RLUP will be required to form a road association to maintain the road along the historic County Road 6 alignment from the western property line of the project to County Road 23E.  This will be made a condition of approval.

Mr. Doug Ryan with the County Department of Health and Environment in his comments expressed concern about water quality in the proposed new reservoir:  “This reservoir is planned to be a drinking water reservoir. Section 8.12.6 of the Land Use Code contains provisions for addressing storm water drainage into drinking water reservoirs…”  This situation is atypical because the Districts, the owners and managers of the new reservoir, will be the ones responsible for ensuring the water quality—they are also co-applicants in this project. 

 

Mr. Ryan and Mr. Mike Cook of the Little Thompson Water District have discussed this issue as it relates to the two previous and similar RLUP projects immediately north of this proposal.  At that time Mr. Mike Cook, District Engineer for Little Thompson, provided an initial response regarding the Drinking Water Reservoir Quality Management Report for this project.  Mr. Ryan raised the issue of large animal grazing on the residential lots stating: “The applicants should carefully consider whether they want to allow horses on the new lots, and should work together to ensure good pasture management if they do.”  This will be addressed by the Districts in their final project documents.

The Colorado Division of Wildlife noted the presence of prairie dogs on the property.  Western burrowing owls, a state-listed threatened species, often live in prairie dog burrows.  DOE stated: “If construction is to occur between March 1 and October 31, the area should be checked for the presence of burrowing owls prior to any earth-moving taking place.  The owls are susceptible to being buried and killed in their holes by construction activity during the nesting season.”  This concern shall be addressed in a condition of approval for the residential lots, with review and approval of the survey and mitigation plans by the County Environmental Planner.  This condition shall not apply to construction of the new reservoir—that activity is regulated by other agencies and subject to its own requirements.

 

Although not directly affecting the Kapaun/Marshall/Wacha RLUP, there is a legal dispute over access to a 72-acre parcel owned by the Banderet family at the western end of the historic County Road 6 alignment.  The dispute is between Mr. Bill Kleber and Mr. Francis Banderet, the owners of the two parcels of land located immediately west of the subject property.  The disagreement involves access over a portion of the historic County Road 6 alignment across the south part of the Kleber property connecting to the Banderet property.  The Banderet property is currently being processed through the RLUP and the project is on hold pending resolution of the dispute.  Kapaun, Marshall, and Wacha are not parties to this dispute and there is no question that these landowners have legal access over the County Road 6 alignment to their properties.

 

However, one question that has yet to be clearly resolved by the courts is whether the access across the historic County Road 6 alignment is public or private.  In the summer of 2004 Mr. Banderet received a judge’s favorable summary judgment ruling concerning his right to use the contested portion of the County Road 6 alignment—the judge ruled the entire alignment a public right-of-way.  Early this year the court overturned this ruling on appeal by Mr. Kleber and indicated that a trial will be needed to prove the case. 

There is a reasonable and mutually beneficial-solution to this access situation.  It will depend upon collaboration between the affected landowners.  Because of the interest of landowners in the area to use the RLUP, there is an opportunity to craft a voluntary solution to the various road and access challenges.  Based on this, the following condition of approval is recommended:  The applicants must demonstrate through competent legal evidence that either private or public access exists for the new proposed use of the property.  This evidence must be reviewed and approved by the County Attorney prior to final plat approval. 

The following comment was submitted by Planning:  “There are a large number of cars and other vehicles on the property, in excess of what appears to be normal and accessory to a single family residence.  This should be discussed with the applicants and our Code Enforcement staff, before this application goes to hearing.”  Code Enforcement Staff have been notified about this situation it has been discussed it with Mr. Tom Kapaun.   Based on these discussions, the following is recommended as a condition of approval:  Before Final Approval, the County Code Enforcement Staff shall investigate the Kapaun property for any code violations.  If code violations are found to exist, the property must be brought into compliance before Final Approval.  Written notification of compliance shall be provided by the Code Enforcement Staff.

 

Support for the Kapaun/Marshall/Wacha Preliminary Rural Land Plan is based on the following:

·  Applicant’s planning and design rationale for the project, which is consistent with the RLUP.

·  Conservation values of the residual land, including preservation of grazing land, open space and wildlife habitat.

·  The plan is generally compatible with the existing neighboring land uses.

 

Support for this proposed plan takes into consideration the various other land development and design options, particularly the 35-acre alternative, for which there is no County review.  The greater number of residential units possible under the zoning and the general development pressure within the immediate area for use-by-right 35-acre division of land supports Staff's belief that this is an appropriate project.

As proposed, this project will also provide commensurate long-term benefits to citizens of Larimer County.  Those benefits are summarized below:

·  Protection of residual land in perpetuity.

·  Transportation capital expansion fees received from the project.

·  School and park fees received from the project.

·  Fewer residences than likely allowed through subdivision process.

·  Ability to influence design of project, as compared to use-by-right division of property into 35-acre parcels.

 

 

This project was reviewed by the Rural Land Use Advisory Board (RLUAB) on September 19, 2005.  The RLUAB unanimously recommended approval of the project with conditions.   The Rural Land Use Director recommends that the Board of County Commissioners approve the Kapaun/Marshall/Wacha Preliminary Rural Land Plan.  The following contingencies must be met prior to approval of final plat by the Board of County Commissioners:

 

1.   The Final Plat shall be consistent with the approved preliminary plan and with the information contained in the Kapaun/Marshall/Wacha Rural Land Plan (File # 05-S2466) except as modified by the conditions of approval or agreement of the County and applicant.  The applicant shall be subject to all other verbal or written representations and commitments of record for the Kapaun/Marshall/Wacha Rural Land Plan.

2.   The Minor Land Division(s) to create legal lots on these parcels must be completed before final approval of the Rural Land Plan.

3.   All roads constructed within the Rural Land Plan shall be in accordance with Section 5.8.6.D of the Rural Land Use Process.  All designs must be prepared and stamped by a qualified professional engineer licensed in the State of Colorado and certified that design standards in 5.8.6.D. were followed, before final approval.  Internal roads may be contained in a private access and utility easement or public right-of-way.  Road names and addressing shall meet standards in the “Road Naming and Site Addressing System Resolution”.

4.   The applicants must demonstrate through competent legal evidence that either private or public access exists for the new proposed use of the property.  This evidence must be reviewed and approved by the County Attorney prior to final plat approval. 

5.   The applicants shall dedicate of an additional 30’ access and utility easement or public right-of-way (depending on the dedication choice) to make a total of 60’ along the south portion of their properties.

6.   The applicants shall create a road association to maintain the road along the historic County Road 6 alignment from the western property line of the project to County Road 23E.  This road association provisions must be reviewed and approved by the County Attorney and the RLUC Director prior to final plat approval. 

7.   A good faith effort to reach an agreement for shared road maintenance with the other property owners who use the historic County Road 6 alignment to County Road 23E for access to their properties shall be made before final plat approval. 

8.   Public water shall be provided for this project.  A letter of commitment from the water provider must be provided prior to final plat approval.  This letter of commitment must specifically state that the water distribution system is (or will be) designed to meet the normal and minimum pressure design standards contained in Section 8.1.2.A.1 of the Land Use Code or more stringent standards as required by the District.  If the water system will be designed to provide fire protection, the letter of commitment also must address the pressure and delivery standards outlined in Section 8.1.4 of the Land Use Code.  Building envelopes shall be placed on each lot.  All building envelopes shall be located outside the floodplain and drainage areas and shall meet minimum setback requirements listed in the Larimer County Land Use Code.

9.   The County Health and Environment Department and the water Districts will determine the content of the Drinking Water Reservoir Quality Management Report.  This report will be submitted to the Health Department for review and approval before final approval.

10.    If construction earthwork is to occur between March 1 and October 31, the area shall be checked for the presence of burrowing owls by a qualified environmental consultant prior to any earth-moving taking place.  If burrowing owls are present, then a mitigation plan must be reviewed and approved by the County Environmental Planner.

11.   Before final approval, the County Code Enforcement Staff shall investigate the Kapaun property for any code violations.  If code violations are found to exist, the property must be brought into compliance before final approval.  Written notification of compliance shall be provided by the Code Enforcement Staff.

12.   Automatic fire protection sprinklers will be required for all new residential structures or written permission for variance from this requirement from the fire district.

13.   The residual land protective covenant and use plans must be reviewed and approved by the County Attorney and the RLUC Director prior to final plat approval. 

14.   Restrictive covenants, including provisions for internal road maintenance, small acreage management, architectural guidelines, and other requirements must be reviewed and approved by the Rural Land Use Center Director prior to final plat approval.

15.   The final development agreement must be reviewed and approved by the County Attorney prior to final plat approval.

16.   A Lot Sale Prohibition shall be placed on this property preventing the sale of any new lots until the applicable improvements (i.e., legal access and public utilities, including but not limited to water supply, electricity, and telephone facilities) have been completed and/or installed according to the project requirements.  The lots cannot be sold, transferred or conveyed unless and until Developer provides written designation stating whether the improvements have been completed for the lot proposed to be sold, transferred or conveyed.  The Lot Sale Prohibition will be recorded in the records of the Larimer County Clerk and Recorder and will be a covenant running with the Lots.  Upon receipt of such written designation, County will provide to Developers a release of the Lot Sale Prohibition for the particular lot(s) for which the improvements have been completed. 

17.   The applicants must sign reciprocal access and utility easements for not less than 30 feet and not more than 60 feet along the south side of their respective properties. 

18.   Where feasible, septic systems shall be sited away from the reservoir, as per the Larimer County Environmental Health Department.

19.   The following must be listed as a note on the final plat and on a disclosure statement, approved by the County Attorney, available to lot buyers through the public records at the time of purchase:

a)   LOT SALE PROHIBITION.  Developers have executed a Lot Sale Prohibition Agreement which stipulates that Lots 1 through 6 cannot be sold, transferred or conveyed unless and until Developers provide to County a written designation stating that all the applicable improvements (i.e., legal access and public utilities, including but not limited to water supply, electricity, and telephone facilities) have been completed and/or installed according to the project requirements.  The lots cannot be sold, transferred or conveyed unless and until Developer provides written designation stating whether the improvements have been completed for the lot proposed to be sold, transferred or conveyed.  The Lot Sale Prohibition is recorded in the records of the Larimer County Clerk and Recorder and is a covenant running with the Lots.  Upon receipt of such written designation, County will provide to Developers a release of the Lot Sale Prohibition for particular lot(s) for which the improvements have been completed. 

b)   The construction of any single-family residence in this development will require the installation of residential fire sprinklers if fire hydrants and/or a public water supply are not present to provide fire protection unless written permission for variance from this requirement from the fire district is received.

c)    Passive radon mitigation measures shall be included in construction of structures designed for habitable space on these lots.  The results of a radon detection test conducted in new dwellings once the structure is enclosed but prior to issuance of a certificate of occupancy shall be submitted to the Building Department.  As an alternative, a builder may present a prepaid receipt from a radon tester which specifies that a test will be done within 30 days.  A permanent certificate of occupancy can be issued when the prepaid receipt is submitted.

d)   Some or all lots in this development include building envelopes.  All structures must be located within these Larimer County approved building envelopes, as shown on the approved Plan.  If a structure within the building envelope is located 5’ or less from the boundary of the building envelope, the owner/applicant for a building permit will be required to demonstrate that the structure(s) is located within the building envelope prior to the approval of the footing and foundation inspection.  This shall be accomplished by a written certification by a Colorado Licensed Surveyor.

e)   Engineered footings and foundations may be required for new habitable construction. Please check with the Larimer County Building Department for requirements prior to submitting a building permit application.

f)   Lot owners should be advised that there is a potential for nuisance conflicts from wildlife (such as skunks, mountain lions, bears, raccoons, foxes, coyotes, prairie dogs and snakes).  The Colorado Division of Wildlife can provide information to property owners about how to handle these situations, but lot owners are responsible for addressing wildlife conflicts if they arise.

g)   No feeding of any wildlife.  Any food placed for wildlife will eventually attract the Black Bears traveling through the area.  Once a bear finds food around homes and trailers, they become habituated to humans, often causing damage to property in their search for food.  The State of Colorado is not liable for damages to non-agricultural property.  Homeowners insurance is strongly advised.

h)   Keep trash and garbage removed from site.  Bear proof containers are commercially available and they work.  Garbage and trash can be as attractive to bears as placing out food for wildlife.

i)   It is strongly recommended that trailers and motor homes not be left on site unattended.  These items may be destroyed by bears if left unattended.  This is particularly important during the months of July to September, when the bears are most active in their search for food.

j)   Many other species of wildlife live in the area; some can be dangerous to humans and pets.  It must be remembered that landowners will be living with wildlife.  Species that may be found in the area are coyotes, mountain lions, bobcats, skunks, badgers, raccoons, deer, elk, hawks, owls and eagles.

k)   Pets must be contained on property, either by leash or enclosure.

l)   During certain times of the year mosquitoes may present a significant nuisance.  Larimer County does not have a mosquito abatement program.  Any mosquito abatement activity will be the responsibility of the homeowner; such activity must be according to applicable Federal, State and local rules and regulations.

m)   Prairie dog colonies exist in the general area; prairie dogs can be a nuisance if they migrate to developed residential property.  At times these animals are implicated in the transmission of plague to people or their pets.  It is important for residents to observe animal control requirements for dogs and cats.

n)   Agricultural operations and farming practices on adjacent properties can produce odors, noise and dust.  These are a normal part of agriculture and should be expected to occur.  In addition, plowing, planting, cultivating, spraying, harvesting, and various livestock operations may be carried out at all times including nighttime.

o)   If livestock will be kept on these lots, it will be important to carefully manage grazing in order to maintain grass cover in the pasture.  Overgrazing will produce bare ground, weeds, erosion and polluted runoff.  Management of these lots should be coordinated with drainage and erosion control issues, siting of sanitation systems, fencing and feeding.

p)   Larimer County has adopted a Right to Farm Resolution.

q)   The following fees shall be collected at building permit issuance for new single-family dwellings: Thompson R2-J school fees, Larimer County fees for County and Regional Transportation Capital Expansion, Larimer County Park Fees (in lieu of dedication), and Rural Land Use Process fees.  The fee amount that is current at time of building permit application shall apply.

r)   Larimer County shall not maintain roads or streets in this development.  Maintenance of the streets shall be the responsibility of the property owners.  Failure to maintain streets may result in a lien being placed on these lots.

s)   At time of real estate closing, owner shall provide purchasers of residential lots and Residual Lot(s) A with the Code of the West, a County document which addresses differences between urban and rural living in Larimer County.

t)   The owners of the residual land parcel shall be responsible for providing a periodic monitoring report for the residual land to Larimer County Rural Land Use Center.

u)   Lots in this Rural Land Plan are subject to the conditions and requirements of a Development Agreement.  The Developer and Larimer County executed this agreement in consideration of the approval of this Development.  This Agreement was recorded in the Larimer County Clerk’s and Recorder’s office immediately after this plat.  All purchasers should obtain and read the Development Agreement.

 

Mr. Reidhead presented a slide show presentation depicting the property and briefly described the proposal as outlined above.  Mr. Reidhead presented an additional condition of approval regarding reciprocal access and utility easements along the south side of the respective properties.  (This has been added as Condition 17, and outlined above.)  Commissioner Rennels asked if the current lawsuit has an affect on this application.  Mr. Reidhead stated that nobody is contesting the applicant's right to use the road. 

Michael Cook, applicant and representative from the Little Thompson Water District, stated that they have gone through this process with the adjoining properties and that this request was similar in nature.  Mr. Cook explained that they intend to control the prairie dog and burring owl population as dictated by the Division of Wildlife.  He also noted that the Rural Land Use Process provides the best control of limiting the number of homes and septic systems that will be constructed.  Commissioner Rennels asked if it were possible to require siting the septic systems away from the reservoir whenever possible.  Mr. Ryan stated that they could indeed make this a condition of approval.

Applicant Pam Wacha asked what restrictions would be placed on property owners with large animals.  Mr. Reidhead stated that there are health concerns with large animals, such as horses, on properties that are adjacent to water supplies; therefore, a recommended pasture management plan should be devised and this issue should be addressed in the covenants. 

Chair Gibson opened up the hearing for public comment.  Francis Banderet explained that all three property owners are defendants in the current lawsuit regarding County Road 6.  Michael Savage expressed concern with speeding on County Road 6, and concerns that the dirt and dust from those utilizing the road is already a health hazard.  Discussion ensued and Mr. Reidhead agreed that dust suppression should be encouraged.  There was no further public comment.

Dorothy Kapaun and Pam Wacha addressed the Board stating that neither one of them are actively involved in the lawsuit, they have not attended any of the meetings recently, and they no longer receive correspondence relating to the lawsuit. 

Commissioner Rennels clarified that the applicants will participate in the road association on a pro-rata share basis.  Mr. Reidhead stated that the applicants will work with the Foothills Estates neighbors and will maintain the road collaboratively.  Commissioner Wagner stated that this Rural Land Use Plan is so far removed from what she believes the intent of the Rural Land Use process was intended for.  Commissioner Wagner explained the residual land within this proposal is being developed as a reservoir, and she does not see how the Rural Land Use Plan values are being met if the residual land is submerged under water.  She stated that she could not support the proposal as a matter of principle.

Commissioner Rennels stated that the reservoir will attract a different type of wildlife and water fowl and stated that it is very important to create more opportunities for water storage within the county.  Commissioner Rennels stated that she would support the application with the condition that all septic systems are sited away from the reservoir whenever possible.  Chair Gibson agreed that the creation of a reservoir is a substantial improvement and will meet the needs of the area.  He stated that the road issues and dust control will have to be a cooperative effort, and that drainage will be addressed within the plan.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve Kapaun/Marshall/Wacha Preliminary Rural Land Plan subject to the conditions recommended by the Rural Land Use Center Director, with the addition of Condition number 17 pertaining to reciprocal access and utility easements along the south side of the properties, and Condition 18, which states that where feasible, septic systems shall be sited away from the reservoir as per the Larimer County Health Environmental Health Department. 

Under discussion of the motion, Commissioner Wagner reiterated that the Rural Land Use Process is not the appropriate method to develop a reservoir.

 

Motion carried 2-1; Commissioner Wagner dissenting.

 

The meeting adjourned at 7:50 p.m.

 

 

TUESDAY, FEBRUARY 14, 2006

 

ADMINISTRATIVE MATTERS

(# 19)

 

The Board of County Commissioners met at 9:00 a.m. with County Manager Frank Lancaster.  Chair Gibson presided and Commissioners Wagner and Rennels were present.  Also present were:  Donna Hart and Deni LaRue, Commissioners’ Office; Casey Stewart, Planning Department; Mark Peterson and Keith Meyer, Engineering Department; and Gael Cookman, Deputy Clerk.

 

1.  PUBLIC COMMENT:  Ms. Cookman introduced Matt O'Dell, owner of Mountain Vista Greens Golf Course; she explained that Mr. O'Dell failed to renew his liquor license within 90 days of the expiration date, and must now go through the entire approval process again.  Ms. Cookman requested a waiver of the petitioning process, the background checks, and a waiver of the county fees associated with the application, as the needs and desires of the surrounding neighborhood have been established and the background checks have already been conducted.  The Board directed Ms. Cookman to list this as an agenda item for the February 21, 2006, Administrative Matters meeting.

 

Curt Lyons addressed the Board regarding the fact that his neighbor has constructed a motor cross track in his backyard and rides his motor cross bike, which causes a disturbance to the neighborhood.  Mr. Lyons stated that he understands his neighbor has the right to ride the motor bikes on his own property; however, he can no longer enjoy his own property and is concerned with how this affects his property values.  Mr. Lyons asked if there was a way to change the Land Use Code to restrict use of this type of recreational vehicle in a residential area.  Much discussion ensued.  The Board stated that Mr. Lyons could propose this as a change to the Land Use Code; however, the neighbor would still be allowed to use his motor cross bike as his use would be "grandfathered" in since the use would have occurred prior to the change in the code.  The Board recommended that Mr. Lyons work with the Environmental Health Department to address the noise and dust issues, and/or possibly file a civil suit against the neighbor. 

 

Gary Weixelman, explained that he was in attendance at the Land Use Hearing on February 6, 2006, during which the Board approved allowing three lot owners within Pine Acres to use the Minor Land Division (MLD) Process to recognize their lots as legal lots.  Mr. Weixelman reiterated that selling property under a "Contract for Deed" was common practice and legally transferred the property.  Mr. Weixelman requested that the Board waive the fees for the MLD process and possibly reduce the surveying requirements, as both are going to be quite costly for the land owners.  He also noted that the adjoining land owners within Pine Acres did not have to go through this process.  The Board stated that they would forward his comments to the Planning Department to see can be done in the way of reducing or possibly waiving fees, and asked Mr. Weixelman to consult with Naomi O'Connor in the Planning Department.

 

2.  APPROVAL OF THE MINUTES FOR THE WEEK OF FEBRUARY 6, 2006

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve the minutes for the week of February 6, 2006, as presented.

 

Motion carried 3-0.

 

3.  REVIEW THE SCHEDULE FOR THE WEEK OF FEBRUARY 20, 2006:  Ms. Hart reviewed the upcoming schedule with the Board.

 

4.   CONSENT AGENDA:

 

M O T I O N

 

Commissioner Wagner moved that the Board of County Commissioners approve the following items as presented on the Consent Agenda for February 14, 2006:

 

02142006A001           WARRANTY MEMORANDUM FOR WAVERLY RIDGE CONSERVATION DEVELOPMENT, FILE #00-S1592, BETWEEN THE BOARD OF COUNTY COMMISSIONERS, THE L. KINZLI REVOCABLE TRUST, AND THE LINDA S. REVOCABLE TRUST

 

02142006A002           CONTRACT AMENDMENT #1 BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND THE STATE OF COLORADO FOR THE USE AND BENEFIT OF THE DIVISION OF CRIMINAL JUSTICE AND LARIMER COUNTY

 

02142006A003           LICENSE EXTENSION FOR MARINA OPERATIONS AT HORSETOOTH RESERVOIR BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND WERTHWHILE ENTERPRISES, LLC.

 

02142006D001           DEED OF DEDICATION BY MICHAEL C. MEYER AND DANETTE R. M. MEYER FOR SAID PROPERTY AS A PUBLIC HIGHWAY

 

02142006R001           FINDINGS AND RESOLUTION DENYING THE BIGHORN CROSSING ADDRESSING CHANGE APPEAL

 

02142006R002           FINDINGS AND RESOLUTION APPROVING AN AMENDMENT TO THE VISTA GRANDE PLANNED DEVELOPMENT FRONT YARD SETBACKS

 

02142006R003           FINDINGS AND RESOLUTION APPROVING THE WENDEL AMENDED SPECIAL REVIEW

 

MISCELLANEOUS:  Department of Human Services Payments for December 2005; Findings and Order in the Matter of N&C Enterprises Inc. dba Berthoud Discount Liquors.

 

LIQUOR LICENSES:  The following licenses were both approved and issued:  Red Feather Café and Bar - Tavern - Red Feather Lakes; The Rock Dance Club - Tavern - Fort Collins; Carter Lake Marina - 3.2% - Loveland; Glen Haven Inn - Hotel & Restaurant - Glen Haven; South Taft Hill Liquor - Retail Liquor Store - Fort Collins.

 

Motion carried 3-0.

 

5.   APPROVE USE OF AND LIMITED IMPROVEMENT FOR BICYCLE AND PEDESTRIAN USES TO A SECTION OF COUNTY RIGHT-OF-WAY IN THE HIGHLAND HILLS SUBDIVISION:   Mr. Peterson explained that the Highland Hills Homeowners Association has requested they be granted permission by the Commissioners to use a portion of currently unimproved, but publicly dedicated, right-of-way for pedestrian and bicycle use, and to make limited improvements to support such usage.  Mr. Peterson stated that the improvements would consist of constructing a 5-foot wide pathway and a 15-inch culvert and that it will be the responsibility of the Highland Hills Homeowners Association to maintain this bicycle/pedestrian path.  Commissioner Wagner asked if the County will be responsible for funding any portion of this project.  Mr. Peterson replied that funding for this project will be solely the responsibly of the homeowner's association.

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve authorizing the construction of a pedestrian and bicycle pathway by the Highland Hills Homeowners Association in the currently unimproved public right-of-way in the Highland Hills 3rd Filing and authorize the right-of-way to be limited to only such uses.  Authorize the existing fencing near Highland Hills Circle to remain across the right-of-way in its present configuration.  Bicycle and Pedestrian pathway improvements to the right-of-way shall be reviewed and approved by the Larimer County Engineering Department.  The Board of County Commissioners is not vacating the right-of-way nor are they relinquishing the County's right to use the right-of-way for road purposes at some future time should that ever become necessary.

 

Motion carried 3-0.

 

6.  REQUEST FOR SPONSORSHIP FROM FORT COLLINS AREA CHAMBER OF COMMERCE:   Mr. Lancaster explained that the Fort Collins Area Chamber of Commerce has again requested that Larimer County be a sponsor for their second annual major speaker's event.  Mr. Lancaster stated that Marcus Buckingham, who is a best-selling author and expert on outstanding leadership and management practices, will be the keynote speaker.  Mr. Lancaster explained that Larimer County, as a sponsor, would receive 25 tickets to the event.  He stated that the chamber is requesting $3750.00, and recommended that the money come from the Commissioners' Special Projects Fund should they decide to sponsor the event.  Commissioner Wagner suggested the possibility of donating tickets to local small business owners so that they could attend the event in spirit of economic gardening.  Commissioner Rennels stated that Larimer County, as a sponsor, uses this type of event to increase the level of management excellence within the County; she agreed to the possibility of donating some of the tickets, but felt it was important to also retain tickets for County employee use.  Mr. Lancaster stated that one reason for supporting this request is for the training opportunities it affords for county employees. 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners approve Larimer County as a sponsor for the Marcus Buckingham event and authorize the expenditure of $3750.00 from the Commissioners Special Projects Fund.

 

Motion carried 3-0.

 

7.   LEGISLATIVE UPDATE:   There was no legislative update presented.

 

8.  WORKSESSION:  Mr. Lancaster presented the items and proposed position resolutions from the National Association of Counties (NACO) and asked for the Board to rank them in priority of importance for lobbying purposes.

 

Mr. Lancaster then provided a follow up regarding the policy on Commissioners abstaining from voting on items; he noted that the Commissioner must voice their intention to abstain from the vote before the voting begins.

 

Mr. Lancaster then asked for the Board to present any corrections or modifications to their work plan prior to the Administrative Matters meeting on February 21, 2006.

 

9.  COMMISSIONER REPORTS:  The Board discussed their attendance at events during the past week, during which, Commissioner Rennels explained that the Civil Air Patrol has requested a letter of support for from the Commissioners to request private funding to build a Civil Air Patrol, and to stage out of the Fort Collins/Loveland Airport for national disasters. 

 

M O T I O N

 

Commissioner Rennels moved that the Board of County Commissioners offer a letter of support for the Civil Air Patrol in their efforts to seek private funding to construct a hangar, and authorize the Chair to sign the same.

 

Motion carried 3-0.

 

10.  DISCUSSION OF AMENDMENT 38:  Mr. Lancaster explained that the sponsors of Amendment 38 have requested the Board to support the amendment which concerns petitioning rights.  Mr. Lancaster stated that the County Attorney has advised that Amendment 38 would cause terrible problems if it is passed.  Discussion ensued regarding the details of the Amendment and the possible repercussions if it is passed.  The Board chose not to support Amendment 38.

 

11.  LEGAL MATTERS:   There were no Legal Matters to discuss.

 

The meeting recessed at 10:40 a.m. with no further action taken.

 

 

 

 

 

    __________________________________________

                        GLENN W. GIBSON, CHAIR

            BOARD OF COMMISSIONERS

 

SCOTT DOYLE

CLERK AND RECORDER

 

 

ATTEST:

 

 

___________________________________

Gael M. Cookman, Deputy Clerk     

 

 

 

 

 

 

 

Background Image: Rocky Mountain National Park by Sue Burke. All rights reserved.