MINUTES OF THE BOARD OF COUNTY COMMISSIONERS
Monday, OCTOBER 08, 2007
LAND USE HEARING
The Board of County Commissioners met at 3:00 p.m. with Rob Helmick, Principle Planner. Chair Rennels presided and Commissioners Eubanks and Gibson were present. Also present were: Candice Phippen, Planning; Traci Downs, Engineering; Doug Ryan, Environmental Health; William Ressue, Assistant County Attorney; and Angela Myers, Deputy Clerk.
Chair Rennels opened the meeting with the Pledge of Allegiance and asked for public comment on the County Budget and Land Use Code. No one from the audience addressed the Board regarding these topics.
1. MOUNTAINVIEW METROPOLITAN DISTRICT, FILE #07-G0144: Rob Helmick addressed the Board and explained that he received an email from the applicant on Thursday, October 4th, indicating the applicant’s desire to remove this item from consideration by the Board. Mr. Helmick explained that the applicant is not withdrawing the applicant, nor is this a postponement request. Rather, the applicant is requesting that the matter not be considered by the Board at this time. Mr. Helmick indicated that he will be discussing the applicant’s intentions and explain to them that the item cannot remain open indefinitely, without having the application withdrawn. Brief discussion ensued regarding timing considerations and what will be required of the applicant if the application process resumes. No motion was required by the Board in order to remove this item from consideration.
2. POWELL ORDER AND ASSESSMENT, FILE #03-ZV0233: Candice Phippen addressed the Board and explained the current status of this matter. The subject property is located on the east side of Shields Street, between Fort Collins and Loveland.
Pursuant to a Permanent Injunction entered by District Court Judge Hiatt on November 20, 2006 (nunc pro tunc October 28, 2006), the Board of County Commissioners of Larimer County was authorized to enter onto the subject property to remove and dispose of the building, subject to the Permanent Injunction, to bring the property into compliance with the County’s zoning regulations. The Board was further authorized to assess the costs of compliance as a lien against the property, collectible in the same manner and with the same priority as real property taxes.
In furtherance of the Court’s order, the Board engaged the services of WRS Infrastructure & Environment, Inc. to perform the required work. The costs of these services, together with Larimer County Landfill fees, totaled $16,275.15, as stated on the Amended Report of Costs filed by the Larimer County Code Compliance Supervisor dated September 7, 2007. To date, the costs have not been reimbursed to the County.
Staff recommends the Board approve the Report of Costs and order the costs be assessed against the subject property as a lien by signing an Order and Assessment in the form provided for signature at this hearing. Upon approval, staff will hand deliver a certified copy of the Order and Assessment to the Larimer County Treasurer and mail a certified copy to the Larimer County Finance Director for purposes of placing the assessment on the tax rolls.
Ms. Phippen explained that the property has been foreclosed upon and now has a new owner. The lien against the property will fall to the existing property owner. Ms. Phippen explained, however, that there is also a condemnation suit being pursued by Platt River Power Authority on this property; and her understanding at this point is that the costs due to the County would be included in the settlement of that suit. Brief discussion ensued regarding the lien and the responsible party.
Chair Rennels thanked Ms. Phippen for her diligence in seeing this nearly five-year old matter to conclusion. There was no public comment on this matter, as there was no public present at the meeting.
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners approve the Report of Costs attached to the Order and Assessment in the form attached, and order costs in the amount of $16,275.15 be assessed against the property as a lien.
Motion carried 3-0.
The meeting recessed at 3:07 p.m.
LAND USE HEARING
(#128 & #129)
The Board of County Commissioners met at 6:30 p.m. with David Shirk, Estes Park Planner. Chair Rennels presided and Commissioners Eubanks and Gibson were present. Also present were: Officers Rudy Solano and Andrew Hart of the Estes Park Police Department; Candice Phippen, Planning; Neil Gluckman, Assistant County Manager; Jeanine Haag, Assistant County Attorney; and Angela Myers, Deputy Clerk.
Chair Rennels reopened the meeting by asking for public comment on the County Budget and Land Use Code. No one from the audience addressed the Board regarding these topics.
1. LIVINGSTON ZONING VIOLATION: David Shirk addressed the Board. He provided a brief overview of the history of the Estes Valley Development Code, photographs and maps of the subject property, and an overall review of the subject zoning violation. This is a request to take action in a violation of the Estes Valley Development Code (EVDC) pertaining to short term vacation rentals.
Officer Rudy Solano outlined, for the Board, the zoning violations he had observed. On June 22, 2007, a complaint was received from Charles Bowers, living at 727 Ponderosa Lane, alleging that the property owner was in violation of the Estes Valley Development Code Section 5.2.B.2.e(2)a.
On June 23, 2007, the property owner was sent, by certified mail, a notice stating that an investigation was underway regarding code violations at the above listed property. On June 23, 2007, the property owner was also contacted by telephone and advised that an investigation was underway regarding code violations at the above listed property.
VIOLATION #1: On July 30, 2007, at approximately 0800, Estes Park Police Department (EPPD) Officer Solano responded to the above address and spoke with the individual that was renting the home for the week. Officer Solano asked the individual about the terms of the rental lease, and the renter stated that the lease was for a period of one week. Officer Solano inquired as to the number of overnight occupants during the term of the lease. The renter stated that there were 18 individuals registered with the property owner and staying overnight during the rental period.
VIOLATION #2: On August 13, 2007, EPPD Officer Bledsoe was dispatched to 720 Ponderosa Lane as the result of a complaint. The complainant stated that there were more than eight occupants staying at the above named property. Officer Bledsoe contacted the renter, who stated that there were twelve individuals staying at the rental home overnight. The rental period was for one week.
Staff finds that:
1. The property is zoned E – Estate (1/2 acre min.).
2. The property is in violation of Section 18.104.22.168.e.2.a; of the EVDC, which requires county properties to comply with all of the conditions and requirements as set forth in the Estes Park Municipal Code (EPMC), Chapters 5.20 and 5.35. Specifically, the EPMC, Chapter 5.20, paragraph .110(2)b states that vacation homes shall be rented, leased, or furnished to no more than one party, with a maximum of eight individual guests. The total maximum occupancy of eight individuals shall be further limited by a maximum of two guests per bedroom plus two individuals.
3. Continued use of the property in violation of the EVDC will affect the neighbors’ abilities to enjoy their own properties.
4. The continued use of the property in violation of the EVDC will adversely affect property values in the area.
Staff finds that a violation exists and requires immediate compliance. This vacation home shall be rented, leased, or furnished to no more than one party with a maximum of eight individual guests. Each vacation rental is permitted a maximum of three guest vehicles on site and parked outside at any one time. On-street parking shall be prohibited. If compliance is not met immediately, staff recommends that legal actions be authorized to enforce the EVDC.
Chair Rennels asked for comment from the property owner. Verd Bailey, attorney for property owner Jane Livingston, approached the Board. Mr. Bailey stated that Ms. Livingston purchased the property to use as a vacation home, with full intention of renting the property out until some time in the future when she would be able to live there herself. He stated that she has already lost some income opportunity from the property in her attempt to comply with Section 5.35 of the code, which allows for two persons per bedroom, plus two persons; which for this property would mean a total of 14 persons.
Mr. Bailey expressed several concerns on behalf of Ms. Livingston. Those concerns included conflicts between the requirements of Sections 5.20 (maximum of eight people) and 5.35 (allowing for two people per bedroom, plus two people) of the EPMC, stating that the code is ambiguous and vague regarding the number of individuals allowed to be occupying the home during any rental period. He further explained that the officers did not follow the code themselves, with respect to informing the property owner of a violation within the specified time period, thereby not allowing time for a response from the property owner. Mr. Bailey stated that the notice of violation appears to precede the date the alleged violations being discussed in this meeting occurred. He further explained that the violation alleged to have occurred on July 30, 2007, would not be applicable under the code, as the property was not being “rented” (no money changed hands); rather it was being occupied by a missionary family free gratis.
Mr. Bailey went on to express at some length concern regarding the use of Estes Park police officers to enforce code violations. He stated that the officers do not have the authority to enforce code violations outside of the Town of Estes Park and sighted a Supreme Court decision that prohibits law enforcement officers from enforcing or investigating matters outside their jurisdiction. Mr. Bailey continued with concern that the EPMC, as written, may violate the Fair Housing Act.
Commissioner Eubanks asked for clarification from the property owner regarding use of the property on July 30, 2007. Ms. Livingston explained that the people staying in the house did sign a “rules agreement” but that no money exchanged hands for their staying at the property. She explained that the people in the home on that date were missionaries from Hungary that she had, through her church, allowed to utilize the property free gratis during this time.
Chair Rennels requested further explanation from Mr. Bailey regarding the violation and notification timing issues he mentioned, and discussion ensued on this topic.
Commissioner Eubanks asked for clarification from Mr. Shirk regarding the code conflicts mentioned by Mr. Bailey. Mr. Shirk explained that Section 5.35 had, in 2004 by way of Ordinance 4-04, been repealed and replaced by Section 5.2. Discussion ensued regarding the references to Section 5.35 in the code violation notification and other documents associated with this matter.
Chair Rennels invited the public to comment on the matter. Cory Pass, a Sergeant with the Estes Park Police Department, approached the Board and explained that a 2001 intergovernmental agreement between the Town of Estes Park and Larimer County allowed for the town to take care of code issues. He further explained that, in March 2007, the Town Board requested that the police department take over code enforcement, and a letter was drafted and sent to Sheriff Alderden and others in the Larimer County Sheriff’s Department informing them that the Estes Park Police Department would be enforcing EPMC violations. He indicated that there was also a letter from the Estes Park Building Department to Larimer County stating this as well. Discussion ensued on this topic.
Charles Bowers, of 727 Ponderosa Lane (across the street from the subject property), approached the Board, reviewed the code and expressed his desire that the Board enforce the penalty section of the code. He stated that property owners renting out their properties that are located outside the Estes Park city limits should be held to the same requirements as those located within the city limits; including such requirements as business licensing and contribution to the maintenance of utilities, etc. Mr. Bowers stated that, living across the street from the subject property, he has personally observed, since March 2007, 12 to 14 times when the property had been rented out to well over eight people – and sometimes as many as 25 people – at a time. He commented that this property owner has a total of five properties, three in Estes Park and two in Texas, and seems to be utilizing these homes as a source of income. He explained that the subject property includes a 1900 square foot house – very small, in his opinion, for holding the large numbers of renters. Mr. Bowers stated that he would like the Board to enforce the EPMC and to prohibit Ms. Livingston from renting out this property for a period of one year.
Mac Smith, President of the Carriage Hills Property Owners’ Association (CHPOA), of which the subject property is a part, approached the Board and explained that CHPOA fully supports the Estes Park codes that apply restrictions on vacation rentals in the area; and, in fact, would like to see tighter restrictions. He spoke to the tranquil, residential nature of this neighborhood and the desire of the CHPOA that property owners in this area comply with the EPMC now and in the future.
Jean-Pierre Brunel, of 741 Ponderosa Lane (located diagonally across the street from the subject property), approached the Board to comment that the code further limits, rather than further expands, the occupancy allowance when it indicates eight persons, or two persons per bedroom and two additional persons.
Bruce Netherton, of 715 Pond Lane (located across the street from the subject property), approached the Board and said that he is saddened by Ms. Livingston’s efforts to disregard the intent of the codes in place, and commented that Ms. Livingston had tried to argue her case with Mr. Netherton and his wife on an earlier occasion.
Commissioner Eubanks asked Mr. Smith if the CHPOA had taken any action against Ms. Livingston with regard to use of the property. Mr. Smith indicated that the CHPOA was considering doing so, but had taken no action up to this point. Commissioner Eubanks asked if Ms. Livingston was in violation of the CHPOA covenants, and Mr. Smith indicated that she was certainly in violation of their intent.
CJ Bowers, of 727 Ponderosa Lane, approached the Board and explained that, prior to Mr. Smith’s becoming president, the CHPOA did hire an attorney who sent a letter to Ms. Livingston on March 9, 2007, asking her to cease and desist the activities that were in violation of the CHPOA covenants. Ms. Bowers also shared photographs of the property, showing the congestion created by the activities of concern.
Mr. Bailey again approached the Board to respond to the public comment. He spoke about the confusion surrounding Section 5.35 of the code and the fact that his client did not receive due process as outlined in the code. He further questioned whether utilizing the Estes Park Police Department to enforce code in this area was correctly authorized. Mr. Bailey explained that a letter was received by Ms. Livingston from the attorney for the CHPOA and that Mr. Bailey responded to it with requests for information that were never answered, and no subsequent communications were received from the CHPOA regarding the matter.
Chair Rennels, seeing no further requests, closed public comment. Discussion ensued regarding the status of Section 5.35 of the code and where it appears in the correspondence relating to this matter. Discussion continued regarding the meaning of “accessory use” in the code, the status of this property in that regard, and communications regarding code enforcement by the Estes Park Police Department.
Commissioner Gibson expressed his concern that the intent of the code, allowing for a maximum of eight persons, was being violated by Ms. Livingston. Discussion ensued among the Board and the Assistant County Attorney regarding the confusion about the status of Section 5.35 of the code and how best to proceed with a motion in this matter. Ms. Haag commented on the differences in the ways town and county police departments operate, explaining that the Estes Park Police Officers in this type of situation act more as information sharers and have no authority to ticket violators, etc.; rather they bring the violation to the attention of the Board of County Commissioners, who decide upon the matter and impose penalty if applicable.
Commissioner Gibson emphasized that anyone can report a code violation. It does not have to be the police department reporting the violation in order for the county to investigate or act on the matter.
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners recognizes that, under Estes Park Ordinance 4-04, Section 5.35 of the EPMC has been repealed and that Section 5.20 is in affect; and the Board of County Commissioners requires immediate compliance and authorizes legal action if compliance is not met. Compliance will require that: (1) this vacation home shall be rented, leased, or furnished to no more than one party with a maximum of eight individual guests; (2) there be no more than three guest vehicles on site and parked outside at any one time; and (3) there be no on-street parking by the vacation renter and his/her guests.
Motion carried 3-0.
The meeting adjourned at 8:00 p.m.
TUESDAY, OCTOBER 9, 2007
The Board of County Commissioners met at 9:00 a.m. with County Manager Frank Lancaster. Chair Rennels presided and Commissioners Eubanks and Gibson were present. Also present were: Donna Hart, and Deni LaRue, Commissioners’ Office; Gerald Blehm, Environmental Health Department; Larry Timm, Planning Department; Bob Herrfeldt, Fairgrounds and Event Center; Lieutenant Pat McCosh, Sheriff's Department; Joe Ferrando, Community Corrections; Richard Guest, Human Services; Linda Coxen, District Attorney's Office; Babette Cornell, Facilities Department; George Hass, County Attorney; David Aryaud, Assistant County Attorney; and Gael Cookman, Deputy Clerk.
1. PUBLIC COMMENT: Mr. Blehm introduced Sharon Jones and explained that Ms. Jones lives adjacent to a horse rescue facility that has sizeable bare pastures and whenever the wind blows it deposits large amounts of dust and manure on to Ms. Jones' property, which cause health issues and expensive clean up efforts. Ms. Jones asked for the county to assist her in rectifying this issue. Much discussion ensued and Mr. Hass explained that this truly is a civil matter, and presented some suggestions on how Ms. Jones might proceed from here.
2. PROCLAMATION FOR RALPH BACKSTROM: Mr. Herrfeldt brought a number of individuals from the Fairgrounds and Event Center in honor of Colorado Eagles President and General Manager Ralph Backstrom's retirement after 53 years in the sport of hockey. Mr. Herrfeldt introduced Jerry Helgason, Lara Toscani, Rick Hontz, Sonja Schuh, Katie MacIntyre, and Shane Cadwell, all of whom praised Mr. Backstrom for his leadership and vision as founder of the Colorado Eagles. Chair Rennels then read the proclamation aloud, and Mr. Backstrom thanked everyone in attendance.
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners adopt the proclamation to honor Colorado Eagles President and General Manager Ralph Backstrom upon his retirement.
Motion carried 3-0.
3. APPROVAL OF THE MINUTES FOR THE WEEK OF OCTOBER 1, 2007:
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve the minutes for the week of October 1, 2007, as presented.
Motion carried 3-0.
4. REVIEW THE SCHEDULE FOR THE WEEK OF OCTOBER 15, 2007: Ms. Hart reviewed the upcoming schedule with the Board.
5. CONSENT AGENDA:
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners approve the following items as presented on the Consent Agenda for October 2, 2007:
PETITIONS FOR ABATEMENT: As recommended by the County Assessor, the following abatements are approved: John Wing; and John Siegmund.
10092007R001 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF LOT 9, BLOCK 2, IN THE BONNELL WEST PUD FIRST FILING
MISCELLANEOUS: Department of Human Services Payments for August 2007.
LIQUOR LICENSES: The following liquor licenses were approved and issued: Mishawaka Inn - Tavern - Bellvue.
Motion carried 3-0.
6. FEDERAL BYRNE DISCRETIONARY GRANT AWARD: Mr. Ferrando explained that the grant award will be used for services for inmates that are transitioning out of the Detention Center and back into the community. He noted that it is difficult for transitioning inmates to find housing and employment; therefore, they often fall back into drug and alcohol habits, and end up back in the Detention Center. Mr. Ferrando stated that the grant money will help them address all of he issues while the inmates are still in the Detention Center. Mr. Guest explained that Lisa Summers was responsible for writing the grant, and the Board praised Ms. Summers' efforts.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve acceptance of the $150,818, FY2007 Federal Byrne Discretionary Grant award (and associated special conditions), which will be used to partially fund the Larimer County Re-entry Program.
Motion carried 3-0.
10092007A001 ACCEPTANCE OF THE FEDERAL BYRNE DISCRETIONARY GRANT AWARD AND AGREE TO ALL ASSOCIATED SPECIAL CONDITIONS
7. REQUEST FOR FUNDING FOR REMODEL OF THE LOVELAND DISTRICT ATTORNEY'S OFFICE: Ms. Coxen explained that in July of 2007, the Larimer County Courts moved a county court to Loveland. In conjunction with this, an Investigator and a legal secretary were also relocated. Ms. Coxen noted that the Investigator needs a private office in order to perform the essential job functions and the cost of the remodel is $9,985.81. Ms. Cornell recommended utilizing the Courthouse Sales Tax dollars as the funding source for this remodel.
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners approve funding the remodel project as it relates directly to the new judge received by the courts on July 1, 2007, and utilize funds from the Courthouse Sales Tax revenue to pay for the remodel.
Under discussion of the motion, Commissioner Eubanks asked if the funds could legally be allocated from the Courthouse Sales Tax revenue. Ms. Cornell replied in the affirmative, as the original measure allowed the revenue to be used with respect to four buildings, and the Police and Courts building in Loveland is one of those four buildings.
Motion carried 3-0.
8. REQUEST FOR DESIGNATION OF PARKING RESTRICTIONS ON PRIVATE PARTY: Mr. Lancaster explained that the Moose Lodge located on Mulberry Avenue, is having some difficulty with a neighboring auto body shop that is using their parking spaces without authorization. Mr. Lancaster stated that there is a provision in the law that allows the Commissioners to limit the use of private property to certain authorized vehicles, if consented in writing by the property owner or lessee. He explained that the Moose Lodge has requested this in writing and if the Board adopts a resolution in support of this request, then it allows the Sheriff's Deputies to enter the premises and issue tickets for unauthorized parking. Discussion ensued, and it was determined that the resolution needed some clean-up, so it will be brought back for approval at the October 16, 2007, Administrative Matters meeting.
9. WORKSESSION: Mr. Lancaster requested direction from the Board regarding proposed changes to the County's Customer Service Policy, Section 417, concerning who has authority to approve Customer Service bonuses. Currently any Appointing Authority (Department/Division Heads and Elected Officials) has the authority to give Customer Service bonuses up to $500 to employees within their respective departments/offices. The current policy only requires that the Appointing Authority notify the County Manager that he or she is giving the Customer Service bonus. Mr. Lancaster explained that previously two elected officials chose to award this bonus to ALL of the employees within their departments when it was truly meant only to be awarded when specific customer service levels were demonstrated. He further explained that this ended up costing the county almost $250,000. Mr. Lancaster asked if it still was the direction of the Board to pursue a change to this policy. The Board requested additional time to review the proposed changes.
10. COMMISSIONER REPORTS: The Board reviewed their attendance at events during the previous week.
11. LEGAL MATTERS: (Affidavit provided)
M O T I O N
Commissioner Eubanks moved that the Board go into Executive Session for the purposes of receiving confidential legal advice on specific legal questions, as outlined in 24-402(4)(b) C.R.S.
Motion carried 3-0.
The meeting recessed at 10:45 p.m., with no further action taken.
KATHAY RENNELS, CHAIR
BOARD OF COMMISSIONERS
CLERK AND RECORDER
Gael M. Cookman, Deputy Clerk
Angela Myers, Deputy Clerk