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MINUTES OF THE BOARD OF COUNTY COMMISSIONERS

 

 

Monday, April 12, 2010

 

 

LAND USE HEARING

 

The Board of County Commissioners met at 3:00 p.m. with Matt Lafferty, Principal Planner.  Chair Johnson presided and Commissioners Donnelly was present. (Commissioner Gaiter joined the meeting after it was already in progress.)  Also present were:  Samantha Mott, and Eric Tracy, Engineering Department; Michael Whitley, Planning Department; Doug Ryan, Environmental Health Department; Jeannine Haag, County Attorney’s Office; and Tamara Slusher, Deputy Clerk.

 

Chair Johnson opened the meeting with the Pledge of Allegiance and asked for public comment on the Land Use Code and County Budget. No members of the audience addressed the Board regarding these topics.

 

Mr. Lafferty explained that the applicant and staff are in agreement regarding the Davies Lot Size Appeal, File #10-G0190, and requests that this item be moved to the consent agenda.  No members of the audience spoke in opposition to this request.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners move the Davies Lot Size Appeal, File #10-G0190 to the consent agenda.

 

Motion carried 2-0.

 

1.         DAVIES LOT SIZE APPEAL, FILE #10-G0190:  The subject property is a 10 acre lot that contains a 4.23 acre mobile home park.  The property is zoned O-Open which requires a minimum lot size of 10 acres.  The properties in the area are a mix of sizes.  None of the lots directly adjacent to the subject lot are less than 10 acres with the exception of the lot to the southwest.  That lot is part of the Cherrywood Acres Subdivision which has lots that vary in size from 2.33 to 3.24 acres.

 

The applicants own this 10 acre parcel as well as the adjacent 30.8 acre parcel to the north and west.  The applicants are requesting a lot size appeal from the required minimum lot size of 10 acres in the O-Open zoning district to reduce the 10 acre parcel to 4.23 acres.  The existing mobile home park is confined to 4.23 acres of the 10 acre parcel.  They would like to split off the vacant 5.77 acres and add it to their 30.8 acre parcel.  This request is for approval to create a 4.23 acre lot.  If the lot size appeal is granted, the property owner’s intent is to apply for an Amended Plat to add 5.77 acres to their lot to 30.8 acre lot.  No additional lots would result from the amended plat. 

 

The applicants have not indicated that they then intend to subdivide their larger parcel and there is no restriction if, in the future, the applicants want to divide their larger parcel into additional lots.  However, they would have to go through the Conservation Development process at that time. 

 

Currently the adjacent parcel is 30.8 acres.  With the required minimum lot size of 10 acres in the O-Open zoning district, there is the potential to create two additional lots for a total of three lots.   If the 5.77 acres is added to the 30.8 acre parcel, the applicants will still be limited to the creation of three lots by dividing that parcel.  Adding the 5.77 acres does not create the opportunity for the larger parcel to be divided into a greater number of lots.

 

The main concern when reviewing this lot size appeal request is if the proposed lot size is adequately sized to accommodate the existing mobile home park.  Based on the comments from the review agencies, the proposed 4.23 acre lot for the mobile home park will be adequate for the current operations.

 

The Development Services Team finds that the proposed lot size appeal meets the review criteria found in Section 22.2.4 (Review criteria for appeals to deviate from minimum lot size requirements) of the Land Use Code.

 

The property is already developed with a mobile home park.  The Health Department has reviewed this request and has indicated that the existing mobile home park uses an on-site septic system.  The associated down-gradient monitoring well is located east of the sewer system and the well functions as the point of compliance for the discharge permit.  This point of compliance must remain on the same property as the sewer system.  The concerns of the Health Department can be addressed if the lot line is drawn to ensure that the sewer system and its related down-gradient monitoring well remains on the property, and that the applicants are confident that they are retaining adequate area to repair or replace the sewer system.

 

The Development Services Team recommends approval of the Davies Lot Size Appeal, File #10-G0190, subject to the following conditions:

 

1.   No additional lots can be created with this lot size appeal. 

 

2.   The applicants must submit an amended plat to reconfigure the lot lines with the adjacent metes and bounds parcel by adding the 5.77 acres to the 30.8 acre lot to the north and west.

 

3.   The dividing lot line shall be drawn so that the sewer system and the area of the down-gradient monitoring well remains on the same property as the mobile home park.

 

4.   The dividing lot line shall be drawn so that there is adequate room on the lot with the mobile home park to repair or replace the sewer system should that be needed in the future.  The project description for the amended plat shall discuss how this condition has been addressed.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners approve the consent agenda as published above.

 

Motion carried 2-0.

 

2.         LAND USE CODE AMENDMENTS REGARDING FOSTER ANIMALS:   In December 2009, during public comment on the Land Use Code, a member of the public raised the issue that the current Code does not specify language regarding the fostering of animals.  These proposed changes are to include definitions for foster animals, foster homes for animals, and to separate the fostering of animals from the pet animal facility definition.  Currently pet animal facilities are only allowed in certain zoning districts if approval is received through the Special Review or Minor Special Review process.  These proposed Code changes include allowing foster homes for animals as a use that is accessory to residential uses which is consistent with pet animals.  Pet animals are defined in the Code and they are permitted as an accessory use to residential uses.

 

The Planning Commission heard the proposed code amendments at their March 17, 2010 hearing.  Staff received no comments from the Planning Commission during the meeting regarding the proposed amendments.  There was no discussion and no public comment.  The minutes of that Planning Commission meeting are included with this report.

 

The proposed amendments to the Larimer County Land Use Code are as follows:

 

1.   Add a new definition to Section 0.1:

 

·   Foster Home for Pet Animals:   A foster home for pet animals is a site which, through a written agreement with a Pet Animal Care Facilities Act (PACFA) licensed rescue facility, provides a temporary home for the care and/or rehabilitation of pet animals.

 

2.   Revise Section 4.3.1.O (agricultural uses) to exclude Foster Home for Animals from pet animal facilities.

 

·   Pet animal facility.  Any place or premise used in whole or in part, which part is used for the keeping of pet animals for the purpose of adoption, breeding, boarding, day care, training, grooming, handling, selling, sheltering, trading or otherwise transferring such animals. Pet animal facility also includes any individual animals kept by such a facility as breeding stock. Pet animal facility does not mean a common carrier engaged in intrastate or interstate commerce. Two or more pet animal facilities that have the same or similar purpose and operate from one place or premise are considered a single pet animal facility.   A foster home for pet animals is excluded from this definition.

 

3.   Revise Section 4.3.10.C (accessory uses) to include Foster Home for Animals as an accessory use to residential uses.

 

·   Pet animals.  Pet animals are permitted as an accessory use to residential uses. Hobby breeder facilities and foster homes for pet animals are permitted as part of this accessory use.

 

Commissioner Gaiter joined the hearing at this time.

 

No member of the audience addressed the Board regarding this topic.

 

Discussion ensued regarding the intent of the amendment and the requirements for PACFA licensing for rescue facilities.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners approve the amendments to the Larimer County Land Use Code regarding foster homes for pet animals, File #10-CA0106.

 

Motion carried 3-0.

 

There being no further business the hearing recessed at 3:15 p.m.

 

 

 

LAND USE HEARING

 

The Board of County Commissioners met at 6:30 p.m. with Matt Lafferty, Principal Planner.  Chair Johnson presided and Commissioners Donnelly and Gaiter were present.  Also present were:  Rob Helmick, and Michael Whitley, Planning Department; Jeff Goodell, and Eric Tracy, Engineering Department; Doug Ryan, Environmental Health Department; Jeannine Haag, County Attorney’s Office; and Tamara Slusher, Deputy Clerk.

 

Chair Johnson opened the hearing and asked for public comment on the Land Use Code and County Budget. No members of the audience addressed the Board regarding these topics.

 

1.         COLLEGE LAKE SUBSTATION 1041, FILE #10-Z1776:  The applicants propose to construct a new electric substation on the Foothills Campus of Colorado State University.  The site is located interior to the campus north of Rampart Road on a four acre site which is currently part of the Colorado State Forest Service compound.  Because of the growth of the Foothills Campus, and the anticipated expansion of activities at this site, the University needs to increase the electricity supply and reliability.  This substation will connect to the Platte River Power Authority power lines which are located along Overland Trail east of the proposed site. 

 

An application for appeal to the 1041 permit requirements was submitted by the applicants in late 2009.  The appeal identified a site to the north and west of the intersection of Overland Trail and Mulberry Avenue.  After hearings with the Larimer County Planning Commission and the Board of County Commissioners the appeal was denied for a number of reasons, including compatibility with the immediate area, concerns with impact to neighboring residential properties and the potential conflict with storm drainage facilities that are planned for the area.  The site now applied for results from an alternative analysis conducted both prior to and after the appeal.

 

The Pleasant Valley and Lake Canal Company has commented regarding the need for agreements and plan review for any crossings, overhead facilities and discharges to the ditch.  The applicants will need to provide evidence of the appropriate agreements and approvals from the ditch company prior to commencing any construction activities. 

 

The Poudre Fire Authority has provided comments regarding the access, site identification, and water supply.  The plans for the site development and access must reflect appropriate responses to the concerns identified and approval from Poudre Fire Authority.

 

There was initially significant interest in the development of the substation, with this application and the resultant relocation away from the nearby residential uses there has been no public comment of concerns raised.  Alternate sites have been evaluated and public comments were solicited. 

 

The application for the College Lake Substation meets the approval criteria for this type of use.  The easement for the site is within the overall ownership of the university, utilizes “waste ground,” and the placement does not appear to impact any adjoining or nearby uses.

 

The Planning Commission recommends to the Board of County Commissioners that the College Lake Substation 1041, file #10-Z1776, be approved subject to the following conditions:

 

1.   Final construction plans shall be consistent with the approved plan and with the information contained in the College Lake Substation 1041 permit File # 10-Z1776, except as modified by the conditions of approval or agreement of the County and the applicant.  The applicant shall be subject to all other verbal or written representations and commitments of record for the College Lake Substation 1041 permit.

 

2.   Final construction plans for the access roads, substation pad and any drainage facilities must be reviewed and approved by Larimer County.

 

3.   Placement of the poles/towers for the interconnect line and the access shall avoid impacts to the water course. 

 

4.   Prior to construction, the applicant must provide confirmation that the concerns and issues of the Pleasant Valley and Lake Canal Company have been satisfactorily addressed and resolved.

 

5.   Prior to construction, the applicants shall provide easements or agreements which insure that there is access to the site and any drainage or detention ponds will be protected.

 

Brian Chase, the facilities director for Colorado State University, explained that there were five potential sites considered for this substation, with this site having the least amount of impact to the surrounding neighbors.  Mr. Chase also described the goals of this project as well as the right-of-way easements proposed to and from the substation.

 

Chair Johnson opened the hearing to public comment and Randy Evans thanked the applicants for the relocation of the site and asked for clarification of the proposed distribution lines and easements.

 

Commissioner Donnelly commended the applicants and contractors for their hard work in finding a better site for this substation and the community outreach performed during this project.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners approve the College Lake Substation 1041, File #10-Z1776, subject to the conditions as outlined above.

 

Motion carried 3-0.

 

2.         ELLIOTT SPECIAL REVIEW AND APPEAL, FILE #09-Z1761:   The proposed project is located east of North County Road 7 approximately 2.7 miles north of County Road 70.  The property is 38.99 acres in size and is zoned FO – Forestry.  The property consists of a single family dwelling and the owners currently have 12 dogs; two of the dogs are indoor dogs, and 10 dogs are kept primarily outdoors.  The outdoor dogs are housed in a number of dog pens, each containing at least one structure used for shelter.

 

The owners have lived on the property for approximately seven years and for the last four years have bred and sold two litters of puppies per year, as a permitted accessory use.  The breeding of pet animals is permitted as long as no more than two litters, or 18 dogs, are transferred per year, whichever is greater.  Breeding more than two litters and/or transferring more than 18 dogs per year is considered to be a Pet Animal Facility use.  Pet Animal Facilities with any outdoor use area requires Special Review approval

 

The property owners are seeking approval of a Pet Animal Facility to be able to sell up to five litters of puppies per year.  The property owners are not proposing to expand the number of dogs kept primarily outdoors beyond the existing 10.  This would not preclude the property owners from exercising their indoor dogs outside or placing them in the outdoor pens on a temporary basis, while puppies would be kept primarily indoors.

 

The property currently contains two nursery structures which include heat lamps and fans.  The property owners have obtained a building permit for a birthing barn which is currently under construction.  The birthing barn will be insulated, heated, air conditioned, and would include a bathtub and sink.  A letter of completion has not yet been issued for the birthing barn.

 

Coal Creek runs through the property and approximately half of the property is in the Coal Creek floodplain.  The Larimer County Engineering Department does not have concerns with the proposed use in the floodplain.

 

The property owners represent that in the past they have not had more than three cars visit the property on any given day associated with the showing and selling of puppies.  The Development Services Team is not proposing to limit the maximum number of trips per day, given that traffic will be self limiting due to the small number of litters proposed per year.

 

The surrounding area is primarily rural residential with lot sizes generally 35 acres or larger.  There is also a glider airport to the north of the property.  The glider airport received Special Review approval in 1974.  

 

The site gains access to North County Road 7 by way of an existing dirt driveway that is heavily rutted.  The driveway is approximately 2,600 feet long (0.49 miles) from the access onto North County Road 7 to the home.  It is approximately 2,050 feet (0.39 miles) from the access to the nearest dog pens.  Section 8.14.7 of the Land Use Code would require that the driveway be improved to an all-weather surface (gravel, crushed rock, recycled asphalt, etc.) with a minimum of 12 feet wide and 4 inches deep.  The property owners are requesting an appeal to that section of the Land Use Code.

 

This item was on the discussion agenda for the February 17, 2010, Planning Commission public hearing.  At that time staff presented the Development Services Team report recommending approval of the proposed Special Review and denial of the proposed appeal to Section 8.14.7 of the Land Use Code. 

 

Prior to the hearing there were many letters and emails received by the Development Services Team referring to the proposed operation as a “puppy mill” and expressing opposition to the proposed Pet Animal Facility.  Concerns noted included the conditions found in some very large animal breeding operations, pet overpopulation, adoption, and euthanasia issues at a national level.

 

During the presentation, staff explained that the issue to be discussed at the hearing was the proposed Pet Animal Facility allowing the breeding of up to five litters per year, and the land use impact of the proposed operation on the surrounding neighborhood. 

 

Several citizens provided input, many of whom do own property or reside in the area.  Of those who live in the immediate vicinity, two spoke against the proposed use and six spoke in favor of the use.  The concerns of the two property owners in the immediate vicinity included noise and the negative impact of the proposed use on property values. 

 

A number of letters and emails in opposition to the proposed use have been received since the Planning Commission hearing.  These have come from as close as five miles from the subject property and from as far away as Denver and Littleton.  An additional email in support of the proposed use was received from the owner of a dog training business in Fort Collins. 

 

The Development Services Team did not support the appeal to the Land Use Code at the time of the Planning Commission hearing.  Planning Commission sought a compromise between full compliance and requiring no improvement to the driveway and proposed a recommendation that the appeal be granted with the following two conditions:

 

1.   The road grading and drainage be in conformance with Larimer County Standards; and

 

2.   The road width be 10 feet wide and 2-inches deep or another acceptable standard as determined by the Engineering Department.

           

After the hearing, the Development Services Team determined it could support the Planning Commission’s recommendation with a modification to require three inches of all-weather surface depth rather than two.

 

The Planning Commission and the Development Services Team recommend to the Board of County Commissioners that the Elliott Special Review, File #09-Z1761, be approved subject to the following conditions:

 

1.   This Special Review approval shall automatically expire without a public hearing if the use is not commenced within three years of the date of approval.

 

2.   The Site shall be developed consistent with the approved plan and with the information contained in the Elliott Special Review File #09-Z1761, 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 Elliott Special Review.

 

3.   Failure to comply with any conditions of the Special Review approval may result in reconsideration of the use and possible revocation of the approval by the Board of County Commissioners.

 

4.   This application is approved without the requirement for a Development Agreement.

 

5.   The Pet Animal Facility shall be limited to 10 adult animals kept primarily outdoors.

 

6.   The Pet Animal Facility shall be limited to breeding and selling a maximum of five litters per year.

 

7.   In the event the applicant fails to comply with any conditions of approval or otherwise fails to use the property consistent with the approved Special Review, applicant agrees that in addition to all other remedies available to County, the County may withhold building permits, issue a written notice to applicant to appear to show cause why the Special Review approval should not be revoked, and/or bring a court action for enforcement of the terms of the Special Review.  All remedies are cumulative and the County’s election to use one shall not preclude use of another.  In the event the County must retain legal counsel and/or pursue a court action to enforce the terms of this Special Review approval, applicant agrees to pay all expenses incurred by the County including, but not limited to, reasonable attorney’s fees.

 

8.   The County may conduct periodic inspections to the property and reviews of the status of the Special Review as appropriate to monitor and enforce the terms of the Special Review approval.

 

9.   The findings and resolution shall be a servitude running with the property.  Those owners of the property or any portion of the property who obtain title subsequent to the date of recording of the Findings and Resolution, their heirs, successors, assigns or transferees, and persons holding under applicants shall comply with the terms and conditions of the Special Review approval.

 

The Planning Commission and Development Services Team recommend to the Board of County Commissioners that the appeal to Section 8.14.7 of the Larimer County Land Use Code, File #09-Z1761, be approved subject to the following conditions:

 

1.   The road grading and drainage be in conformance with Larimer County Standards.

 

2.   The road width be 10 feet wide and 3-inches deep.

 

Chair Johnson requested that Judy Calhoun and Nate Sorensen of the Larimer County Humane Society address the Board regarding the condition of the animals and their enclosures on the property.  Ms. Calhoun gave details regarding the requirements of the Colorado Pet Animal Care Facility Act (P.A.C.F.A.) and stated that in two site visits there were no violations at this site.  Mr. Sorensen stated that the animals were well cared for and the enclosures were in good condition.  Ms. Calhoun also explained the reporting requirements on P.A.C.F.A. licensed facilities and upcoming changes to these regulations.

 

Chair Johnson opened this hearing to Wendi and Gary Elliott, the applicants.  Discussion ensued regarding noise impacts to the neighborhood, and concerns regarding odor, over-breeding, driveway surfacing, and P.A.C.F.A. licensing.  Ms. Elliott also spoke to the ongoing dispute amongst their neighbors.

 

Chair Johnson opened the hearing to public comment and Michael Holland, Susie Wiebers, Marla Morine, Peter Desarno, Tommasina Miller, Kathleen George, Laura Bevacqui, Mary Roberts, Travis Campbell, and Diane Holland spoke in opposition to this application, citing concerns regarding commercial breeding, neighborhood character, reputable breeding practices, prior accusations of animal neglect, road safety concerns, environmental damages, negative impacts to property value, and shelter over-population.

 

Mark Sears, Scott Koskie, Steve Campbell, Kendra Soderberg, Charles Wilcox, Carie Saunders, Kevin Laughrun, and Christopher Laughrun all spoke in support of this application.  The reasons cited include the minimal impact to the neighborhood, community need for the services provided, the work performed at the property to correct road safety concerns, and the over-all character of the applicants.

 

Chair Johnson closed public comment and Ms. Elliott discussed the procedures used when considering adoption of the puppies, as well as the character qualities of the mix breeds produced.  Mr. Elliott detailed the upgrades done to the driveway itself, and the ditches cut to prevent water retention.  Ms. Elliott also explained that she has not yet applied for P.A.C.F.A. licensing, and would immediately do so pending the results of this hearing.

 

The Board thanked the audience for the passion displayed and the public participation on this topic. 

 

Commissioner Donnelly discussed work the Board has done with the Larimer County Humane Society, noting that in previous instances where animal care facilities were shut down,  no prior approval had been sought for permission to operate.  Commissioner Donnelly stated that this was evidence of the applicant’s intent and he stated that he would support their application.

 

Commissioner Gaiter concurred with Commissioner Donnelly’s statements, adding that the requirements for the driveway should not be enforced when these standards will not be imposed for similar uses, referring to horse properties.  Commissioner Gaiter also stated that the widely held definition of puppy mills included substandard conditions and the priority of generation of profit over the well-being of the animals in question.  He did not believe that this was the case in this situation, and therefore, would also support the application. 

 

Commissioner Johnson briefly discussed his background as a veterinarian and the staggering numbers of animals euthanized.  He also stated that in prior cases, the individuals involved had bypassed the laws in order to operate.  Commissioner Johnson stated that he would like to add a condition of approval requiring the applicants to obtain and maintain P.A.C.F.A. licensing through the State of Colorado.  In addition, he also requested that the conditions include a statement regarding the maintenance of the driveway on the property with requirements that it be kept in current condition or better.

 

Ms. Haag stated that she would work closely with staff to address the Board’s request regarding road surfacing requirements in the findings and resolution when drafted.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the Elliott Special Review, File #09-Z1761, subject to the conditions as amended above, including the requirement for the applicants to obtain P.A.C.F.A. licensing.

 

Motion carried 3-0.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the appeal to Section 8.14.7 of the Land Use Code regarding road surfacing requirements subject to the conditions as amended above.

 

Motion carried 3-0.

 

There being no further business the hearing adjourned at 9:25 p.m.

 

 

TUESDAY, APRIL 13, 2010

 

 

ADMINISTRATIVE MATTERS

 

The Board of County Commissioners met at 9:00 a.m., with County Manager Frank Lancaster.  Chair Johnson presided, and Commissioners Donnelly and Gaiter were present.  Also present were:  Donna Hart, and Deni LaRue, Commissioners’ Office; Vaughn Baker, Larry Gamble, and Kyle Patterson, Rocky Mountain National Park; Candace Phippen, Code Compliance Department;  Samantha Mott, Planning Department;  Jeannine Haag, and Bill Ressue, County Attorney’s Office; and Gael Cookman, Deputy Clerk.

 

1.  PUBLIC COMMENT:  Mark Horowitz requested that the Board allow his Petition for Abatement to be considered at 2:30 p.m. today, as previously scheduled.  Discussion ensued regarding whether or not the Board had the authority to consider this Petition for Abatement, due to the fact that Mr. Horowitz has already been through the protest process for this parcel of land during this timeframe.  Chair Johnson invited Mr. Horowitz to stay for Legal Matters, as the Board will be discussing this matter with the County Attorney.  

 

2.  APPROVAL OF THE MINUTES FOR THE WEEK OF APRIL 5, 2010:

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the minutes for the week of April 5, 2010, as amended.

 

Motion carried 3-0.

 

3.  REVIEW OF THE SCHEDULE:   Ms. Hart reviewed the upcoming schedule with the Board.

 

4.  CONSENT AGENDA:

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners approve the following items, as listed on the consent agenda for April 13, 2010:

 

04132010A001           CONSTRUCTION CONTRACT FOR PROJECT NO. 5021 – HORSETOOTH RESERVOIR 2010 SOUTH BEACH PHASE II, BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND J-2 CONTRACTING COMPANY

 

04132010R001           FINDINGS AND RESOLUTION APPROVING THE HERERRA SUBDIVISION PRELIMINARY PLAT AND APPEAL TO SECTIONS 8.14.2.N AND 8.14.2.S

 

LIQUOR LICENSES:  The following liquor licenses were approved and/or issued:  Daisy Duke’s – Tavern – Loveland; FoCo Girls Gone Derby Booster Club – Special Event 6% - Fort Collins.

 

Motion carried 3-0.

 

5.  ROCKY MOUNTAIN NATIONAL PARK (RMNP) UPDATE:  Mr. Baker displayed a PowerPoint presentation for the Board, which outlined activities happening in and around the park, such as:  Mountain Pine Beetle mitigation, road construction and resurfacing; Trail Maintenance, Fees, Elk and Vegetation Management Plan, Visitor Transportation Services, etc.  The Board thanked Mr. Baker, Mr. Gamble, and Mr. Patterson for their presentation.

 

6.  ALLOW THREE BUSINESS USES CONNECTED WITH MISHAWAKA INN TO CONTINUE DURING APPLICATION PROCESS:  Ms. Phippen requested that the Board provide direction regarding whether or not they will allow three business uses connected with the Mishawaka Inn to continue during the application process.  The three business uses are as follows:  1. Bus shuttle service to transport patrons between the Mishawaka Inn and the “Graves” property located at the base of the Poudre Canyon, near the intersection of Highway 14, and Highway 287.  2.  Off-premise parking on the Graves property for the Mishawaka Inn.  3.  Public camping on the Graves property.   Much discussion ensued regarding public safety, and the timeframes for the Special Review and Special Exception processes; during which, Chair Johnson stated that he was not in favor of allowing camping on the property since Mr. Jones (owner of Mishawaka Inn), has been given opportunity since August 2009, to begin the Special Exception and Special Review processes.   The following action was taken:

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the continued use of a shuttle service to transport patrons between the Mishawaka Inn and the Graves property located at the base of Poudre Canyon near the intersection of Highway 14, and Highway 287, until June 1, 2010, conditioned upon the Mishawaka Inn obtaining and complying with the proper special events permits for all dates the uses are in operation. 

 

Motion carried 3-0.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the continued use of off-premise parking on the Graves property for the Mishawaka Inn, until June 1, 2010, conditioned upon the Mishawaka Inn obtaining and complying with the proper special events permits for all dates the uses are in operation. 

 

Motion carried 3-0.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve continued use of public camping on the Graves property, until June 1, 2010, conditioned upon the Mishawaka Inn obtaining and complying with the proper special events permits for all dates the uses are in operation.  

 

Motion carried 2-1; Chair Johnson dissenting.

 

Ms. Cookman will update the special events application for the Mishawaka Inn, and remove the request for approval of events scheduled for June 25 – 27, 2010. 

 

7.  LEGISLATIVE UPDATE:  There were no legislative items to discuss.

 

8.   COUNTY MANAGER WORKSESSION:    Mr. Lancaster explained that from now on, public comment would be listed as a five-minute item on the Commissioners’ agenda, so that staff will be available to move forward with the agenda items in the event that there are no citizens present to address the Board.

 

9.   COMMISSIONER REPORTS:  The Board reviewed their activities at events during the past week.  

 

10.  LEGAL MATTERS:  Ms. Haag explained the protest and abatement processes to the Board.  She stated that, since the petitioner has already appealed through the protest process, he is now ineligible to apply for an abatement of taxes, and the Board of County Commissioners has no jurisdiction to hear the case.  Ms. Haag noted that the only way someone can apply for an abatement, after going through the protest process, is if the questions presented are purely that of law and do not pertain to the facts of the case  (i.e. clerical errors or legal questions that do not pertain to the facts of the case).  Discussion ensued, and the Board agreed to hear the abatement scheduled for later on in the day.

 

Mr. Ressue then requested that the Board go into Executive Session to for the purpose of receiving legal advice.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners go into Executive Session for the purpose of receiving legal advice on specific legal questions, as outlined in 24-6-402(4)(b) C.R.S.

 

Motion carried 3-0.

 

The meeting recessed at 11:05 a.m. with no further action taken.

 

ABATEMENT HEARINGS

The Board of County Commissioners reconvened at 2:00 p.m. for Abatement hearings.  Chair Johnson presided, and Commissioner Donnelly was present.  Also present were:  Jodi Masters, Jon Cowling, George Jones, Jennifer Pawleshyn, and Kathy Thornton, Assessor’s Office; Bill Ressue, County Attorney’s Office; and Gael Cookman, Deputy Clerk.

 

ABATEMENT HEARING FOR ROBERT L. KULIKOWSKI, PARCEL NUMBER 97132-08-010:  Ms. Pawleshyn reviewed the subject property noting that it was a 2 Story Triplex of average quality.  She presented the list of comparables she used to arrive at the assessed value.  She recommended the Board set the value of this home at $312,000.  The petitioner was not present at this time.

 

M O T I O N

Commissioner Donnelley moved that the Board of County Commissioners accept the recommendation of the Assessor’s Office and adjust the value of Parcel Number 97132-08-010 to $312,000 for 2009.

Motion carried 2-0.

 

At this time, Mr. Kulikowski arrived and apologized for being late.  The Board agreed to consider Mr. Kulikowski’s evidence. 

Mr. Kulikowski presented his comparables, noting that he focused mainly on other rental properties, and used more of an “income approach” to value.  Ms. Pawleshyn stated that although Mr. Kulikowski was renting the property, it is classified as residentials, and therefore, the “market approach” must be used in determining value.

The Board upheld their previous decision, and set the value at $312,000 for this property.

 

ABATEMENT HEARING FOR MARK HOROWITZ, PARCELNUMBER 98364-06-007:   Mr. Horowitz stated that he feels the Assessor’s office did not accurately track the progress of construction on his home, and that his property should not have been assessed as vacant land, since the footers and foundation were in place, as of December 2008.   Ms. Masters explained stated that their staff conducts a physical visit to all new construction sites and tracks the percentage of completion for on-going construction.   She stated that if the property had been at least 10 percent complete at the time of inspection, then that would have been reflected in their records.  She further explained that the inspection report, indicating completion of the foundation, was not received by the building department until June 2009.  Some discussion ensued. 

Mr. Ressue explained that since this parcel was protested in 2009, then the Board can not consider this abatement, unless there is a question of law or a clerical error in dispute.  Mr. Ressue stated that this discussion, which deals with the facts of the case, should have been heard and considered at the Board of Equalization.  Mr. Horowitz admitted that he was unfamiliar with the process and chose not to attend the Board of Equalization.  He stated that in his opinion, the fact that his property was still being classified as vacant land should have been more clearly defined on his Notice of Value and Notice of Determination from the Assessor’s Office.

M O T I O N

Commissioner Donnelley moved that the Board of County Commissioners deny the Petition for Abatement for Mark Horowitz, Parcel Number 98364-06-007, based upon restrictions set forth in 39-10-114 C.R.S., that preclude the Board from making a decision due to lack of jurisdiction to consider the petition.

Motion carried 2-0.

 

ABATEMENT HEARING FOR LOUISE, ROGER, AND KATHRYN LINTON, PARCEL NUMBER 97274-07-010:  Ms. Thornton reviewed the subject property and the comparables she used to arrive at the assessed value of $182,900.  Ms. Linton stated that she was previously unaware of the timeframe used to determine market value, but now understands that the value set does reflect the sales within the timeframe being considered.  Chair Johnson explained that the Assessor’s Office is always two-years behind, and in a rising market that is to the citizen’s benefit; however, in a declining market, it can seem like a detriment.  Ms. Linton agreed and thanked the Board for their time.     

 

M O T I O N

Commissioner Donnelly moved that the Board of County Commissioners deny the Petition for Abatement for Louise, Roger, and Kathryn Linton, Parcel Number 97274-07-010, for tax year 2009.

Motion carried 2-0.

The meeting adjourned at 3:25 p.m.

 

THURSDAY, APRIL 15, 2010

 

ABATEMENT HEARING

 

The Board of County Commissioners met at 2:00 p.m. for an abatement hearing. Chair Johnson presided and Commissions Donnelly and Johnson were present. Also present were:  Jodi Masters, Assessor’s Office; and Melissa Lohry, Deputy Clerk.

 

ABATEMENT HEARING FOR DARYL FELLBAUM, TIM SELF, AND JERRY MITCHELL:   Ms. Masters detailed the subject properties and described the unique history of the subdivision, including its prior financial troubles and previous status as agricultural land. She then detailed the comparables used to arrive at the recommended value of $424,300 per lot and noted that all of the other parcels in the subdivision protested the assessment of 2008 taxes at County Board of Adjustment hearings and all were denied adjustment, except for one. The one parcel that received a reduction was sold during the statutory timeframe for $398,000, which was also the value assessed by the County Board of Adjustment. 

 

Luke Angerhofer, representative for the property owners, addressed the Board.  Mr. Angerhofer stated that the lots were not worth $424,300 because the soil is very rocky, the terrain is uneven, and the building envelopes are very close together. Mr. Angerhofer explained that the current owners purchased the parcels with the belief that they were agriculturally classified and were not notified of the re-classified to “residential” until the time of closing. Lastly, he stated that the three subject parcels should not be compared to other parcels in the subdivision because they are unique and less desirable.

 

Commissioner Donnelly stated that he would support reduced valuation of $398,000 per lot. Chair Johnson and Commissioner Gaiter agreed.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners approve the Petition for Abatement of Taxes for Daryl Fellbaum, Tim Self, and Jerry Mitchell, parcel numbers 96300-00-004, 96300-00-005, and 96300-00-006, for tax year 2009 and assess the value of each parcel at $398,000.

 

Motion carried 3-0.

 

ABATEMENT HEARING FOR MARK J. DROBILEK:   Ms. Masters detailed the subject properties, described the location, and noted that the property sold during the statutory timeframe, on June 15, 2007, for $105,000. Ms. Masters then detailed the comparables and the process of time adjusting sale prices used to arrive at the recommended value of $87,800 for the 2008 tax year and $90,500 for the 2009 tax year.

 

Mr. Drobilek stated that because he was a first time property buyer, he severely overpaid for the parcel. He also noted that, unlike his parcel, other properties in the subdivision were sold for a price that included water tap fees.

 

Commissioner Gaiter explained that assessed values are based on sales of similar properties during the statutory timeframe, and the best representation of market value is the sale price of the subject property. Therefore, he did not feel there was sufficient evidence to adjust the assessed value of $87,800 for the 2008 tax year.

 

Commissioner Donnelly stated that he would support adjusting the assessment of Mr. Drobilek’s parcel to $87,800 for the 2009 tax year. Chair Johnson and Commissioner Gaiter agreed.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners deny the Petition for Abatement of taxes for Mark Drobilek, parcel number 14283-15-002, for tax year 2008 and support the Assessor’s value of $87,800.

 

Furthermore, Commissioner Gaiter moved that the Board of County Commissioners approve the Petition for Abatement of taxes for Mark Drobilek, parcel number 14283-15-002, for tax year 2009 and assess the value at $87,800.

 

Motion carried 3-0.

 

There being no further items, the hearing adjourned at 3:15 p.m.

 

 

 

__________________________________________

                        STEVE JOHNSON, CHAIR

BOARD OF COMMISSIONERS

 

 

SCOTT DOYLE

CLERK AND RECORDER

 

ATTEST:

 

 

­­­______________________________________

Tamara L. Slusher, Deputy Clerk

 

­­______________________________________

Gael M. Cookman, Deputy Clerk

 

­­______________________________________

Melissa E. Lohry, Deputy Clerk

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