MINUTES OF THE LARIMER COUNTY BOARD OF ADJUSTMENT

 

May 23, 2006

 

            The regular meeting of the Larimer County Board of Adjustment was held in the County Board Hearing Room in the Larimer County Courthouse, Fort Collins, Colorado at 7:00 p.m., May 23, 2006.  Members Alfred Shilling, Larry Chisesi, Eric Berglund and Evelyn King were present.  Also in attendance were County Planning Staff members Casey Stewart and Assistant County Attorney Jeannine S. Haag.

 

            By Motion duly made, seconded and carried, the reading of the Minutes of the meeting of April 25, 2006 was dispensed with and such Minutes were approved.

 

File No:           #06-BOA0598  (Schauer Setback Variance)

Owner:            Jon and Debra Schauer

Applicant:       Jon and Debra Schauer

Property Description:

 

Tract W-6:

                       

A tract of land situated in the N ½ of the SW¼ and in the NW¼ of the SE¼ and in the SW ¼ of the NE¼ of Section 15, Township 7 North, Range 71 West of the 6th P.M., more particularly described as follows:

 

Commencing at the Northwest corner of said Section 15; thence N89°58’27”E 1295.204 feet to the Northeast corner of the NW¼ NW¼ of Section 15; thence S00°21’38”E 1288.24 feet to the Southeast corner of the NW¼  NW¼ of Section 15; thence S89°38’07”W along the South line of said NW¼  NW¼ a distance of 50.0 feet to a point; thence leaving said South line S00°03’10”W a distance of 1849.40 feet to the TRUE POINT OF BEGINNING; thence S00°03’10”W 675.71 feet to the centerline of Larimer County Road No. 27 (Buckhorn Road);  thence along the centerline of said Buckhorn Road, along a 409.26 feet radius curve to the left an arc distance of 239.54 feet, having a chord bearing N82°13’23”E and a distance of 236.14 feet, to a Point of Tangency; thence N65°27’20”E a distance of 584.99 feet to a Point of Curvature thence along a 710.53 foot radius curve to the right an arc distance of 247.95 feet to a Point of Tangency; thence N85°26’00”E a distance of 209.89 feet to a Point of Curvature; thence along a 1432.40 foot radius curve to the left an arc distance of 509.93 feet to a Point of Tangency; thence N65°03’10”E a distance of 125.77 feet; thence along a 1432.40 foot radius curve to the left an arc distance of 284.30 feet, having a chord bearing of N59°33’46”E and a distance of 283.84 feet; thence N45°08’50”E a distance of 386.69 feet to a Point of Curvature; thence along a 384.02 foot radius curve to the right an arc distance of 59.88 feet to a Point of Tangency; thence N54°04’53”E a distance of 6.21 feet to a point; thence leaving said centerline N24°13’41”W a distance of 410.005 feet; thence S72°39’41”W a distance of 2324.89 feet to the TRUE POINT OF BEGINNING.

 

            The Application of Jon and Debra Schauer, requesting three variances was presented to the Board.  The Application requested a setback variance upon the above-described property to allow an existing dwelling to remain 33 feet from a stream rather than the required minimum of 100 feet and 10 feet from the edge of an established road easement rather than the required minimum of 25 feet and also requesting a setback variance to allow an existing shop/storage building to be located 15 feet from an established road rather than the required minimum of 25 feet in the O-Open zone.

 

            The Board having heard the testimony and arguments concerning the Application, and having reviewed the record and being fully advised in the premises adopted the following findings:

 

Findings

 

1.         This hearing has been duly advertised in a newspaper of general circulation as required by law.

 

2.         The property location is SW 15-7-71; 20537 Buckhorn Road, located approximately ½ mile west of CR 27 on the north side of Buckhorn Road (CR 44).

 

3.         Site data is as follows:

 

a.         Land Area:                               35 Acres

b.    Proposed Use:                          Single Family Residence

c.    Existing Zoning:             O-Open

d.    Surrounding Zoning:                  O-Open

e.    Existing Land Use:                    Single Family Residence

f.    Surrounding Land Uses:            Residential, Recreational

g.    Access:                                    Buckhorn Road

 

4.         The applicant requests variances to allow an existing dwelling to remain in its current location which is 33 feet from a stream and 10 feet from the edge of an established road easement rather than the 100 feet from the center of a stream and the 25 feet from the edge of a road easement as required in sections 4.1.5 and 8.17.2 of the Land Use Code.  Also, the applicant requests a variance to allow a shop/storage building to remain in its current location which is 15 feet from an established road rather than the 25 feet from the edge of a road easement as required in section 4.1.5 of the Land Use Code.

           

5.         Permits were issued for the double-wide mobile home (1986), the attached garage (1997), and for the storage building (2004) from the County without requiring the applicant to apply for variances.  The mobile home was located within the setback for the stream at that time.  Later an attached garage and covered porch were added to the mobile home.  The covered porch pushed the dwelling further into the stream setback.  The garage extended the dwelling closer to the access easement but at the time it was probably assumed that the access easement was a driveway and no setback was required.  The Land Use Code now has a provision that states that if any access drive or easement provides access to two or more building sites or lots they are considered streets or roads.  (Section 5.11.1)  Therefore, the 25 foot setback from the edge of road easement applies to the access easement which is now considered a road.  The attached garage and the storage building are subject to the 25 foot setback.

 

6.         The major concern with this application is that the applicant/owner not construct any structures within any of the setbacks as defined in the Land Use Code without going through the proper County processes, such as applying for a variance.

 

7.         There were no persons in attendance who objected to the request.

 

8.         The applicable review criteria for the variance have been met as follows:

 

A.   There are special circumstances or conditions, such as exceptional topographic conditions, narrowness, shallowness or the shape of property, or other extraordinary and exceptional situation or condition of such piece of property, that are peculiar to the land or structure for which the variance is requested.

 

The location of the original home was established in 1986 when the manufactured home was placed on the property.  The additions to the home were done in 1997.  The detached utility building was constructed in 2004.  The attached garage and the utility building locations were approved at the time the permits were applied for, but due to the revised definition of road, they are now subject to a 25 foot setback from the edge of the established road.  The exceptional situation for these two projects stems from the change of this access easement from a driveway to a road, as defined by the county.  Because the property owner is now attempting to clear up all violations and nonconformities related to buildings on the property, the current road definition and setbacks apply.

 

The applicant added the covered porch in 1997 and based on some miscommunication at that time did not obtain a permit.  As a result of the final building inspection for the utility building in 2004, the owner was made aware that the covered porch did indeed require a permit.  The covered porch extended closer to the stream that runs to the east, resulting in a setback of 33 feet.  The location of the original home (1986) combined with the location of the overhead power lines and access easement to the west, created special circumstances that limited the area available for the covered porch.

 

 

 

B.   The special circumstances are not the result of actions or inactions by the applicant or the current owner.

 

The above circumstances are not the result of action or inaction of the applicant with the exception of the addition to the mobile pushing it further into the stream setback without applying for a permit.  The manner by which the setback requirement for the access easement is applied has changed since the original home, attached garage, and utility building were constructed.  The location of the road access easement, the overhead power lines, and the original home were not a result of actions by the current owner.

 

In an effort to resolve outstanding building permit issues and clear up all nonconforming issues related to buildings and setbacks, the owner has submitted this variance application.  The owner has been compliant with all Code Compliance Department requests and continues to work toward a final resolution of code violations, most of which were pre-existing when the applicant purchased the property but were not discovered until recently.

 

C.        The strict interpretation and enforcement of the Land Use Code provisions listed above would deprive the applicant of rights commonly enjoyed by other land in the area or land with the same zoning designation and would cause an unnecessary and undue hardship.

 

Because permits were issued for the home, attached garage, and utility building prior to construction, to deny the request would cause unnecessary and undue hardship to the applicant by requiring him to remove the structures.  The applicant states he did not apply for a permit for the covered porch because of unintentional miscommunication in his conversation with the Building Department in 1997.  To deny the request for a variance from the stream setback requirement would also cause unnecessary and undue hardship to the applicant by requiring him to remove the porch.

 

            D.        Granting the variance is the minimum action that will allow use of the land or structure.

 

Granting the variance is not the minimum action that will allow use of the land and structure, however, because the structures were previously permitted, granting the variances is the minimum action that will allow continued use of permitted structures.

 

            E.         Granting the variance will not result in a substantial adverse impact on other property in the vicinity of the subject land or structure.

 

There is not evidence that granting the variance would adversely affect any neighbors or their property.  The owner has indicated that in the major storm event of 1997, which has been categorized as a 100-year event or greater, the elevation of the porch floor was still 5 feet above the water level and more than 20 feet horizontal distant to the water’s edge.  No objections have been received by any of the neighboring property owners at this time. 

 

F.         Granting the variance is consistent with the purpose of the Land Use Code and the Master Plan.

 

Although the property offers other potential sites that could meet the setback requirements, granting the variances will allow the owner reasonable use of the land while retaining the buildings and will not adversely impact neighboring properties or their owners.

 

            G.        The recommendations of referral agencies have been considered.

 

Referral agency comments are noted in the next section “Other Review Agency Comments”.  No objections were offered from other agencies or departments.

 

9.         To approve this request would promote the harmonious development of the area, would be in the best interest of the people of Larimer County, would promote the convenience, prosperity and general welfare of the applicant and the immediate inhabitants of the area, and would be in consonance with the intent and purposes of the Larimer County Land Use Code.

 

Eric Berglund moved and Alfred Shilling seconded the Motion that the Board adopt the following Resolution:

 

Resolution

 

WHEREAS, the Board having adopted its Findings and said Findings being incorporated in this Resolution by this reference as though fully set forth herein;

 

NOW, BE IT RESOLVED that applicants be and they hereby are granted their variances as requested subject to the following conditions:

 

1.    Failure to comply with any conditions of this approval may result in reconsideration of the use and possible revocation of the approval by the Board of Adjustment.

 

2.    This approval shall automatically expire in one year unless the applicants take affirmative action consistent with this approval.

 

3.    All future additions or buildings that are would be within setbacks as defined in the Land Use Code must go through the proper County review prior to construction.

 

4.    The applicants must resolve the current code violations 04-ZV0254 and 05-BV0267 by applying for building permits and obtaining all required inspections within 60 days of this approval.

 

BE IT FURTHER RESOLVED, that in the event the Applicants Jon and Debra Schauer not act upon the setback variances granted herein by using the above-described property in accordance with these granted setback variances within one year from the date of this Resolution, this Resolution shall be null and void and of no further force and effect unless upon a showing of good cause to this Board and said period of time is extended.  Any application for an extension of time must be made by Application to this Board on or before one year from the date of this Resolution.  If this action involves approval of a use (or expansion of a use) not otherwise permitted on the subject property, and if in the future the subject property is divided, then this action shall only pertain to one parcel resulting from any such division(s) and the Board of County Commissioners shall in its discretion determine which one of the resulting parcels shall enjoy the benefits of this action.

 

The question was called and members Alfred Shilling, Larry Chisesi, Eric Berglund and Evelyn King voted in favor of the Resolution.  The Findings and Resolution were duly adopted and the setback variances were granted subject to conditions.

 

File No:           #06-BOA0600  (Hobbs Height Variance)

Owner:            George E. Hobbs

Applicant:       George E. Hobbs

Property Description:

 

Lot 25, Buckskin Heights 1st Filing

 

Also known as:  3908 Woodchuck Dr. Loveland, CO  80538

 

            The Application of George Hobbs, requesting a variance was presented to the Board.  The Application requested a height variance upon the above-described property to allow a private wind turbine tower to be 85 feet in height rather than the required minimum structure height of 40 feet in the O-Open zone.

 

            The Board having heard the testimony and arguments concerning the Application, and having reviewed the record and being fully advised in the premises adopted the following findings:

 

Findings

 

1.         This hearing has been duly advertised in a newspaper of general circulation as required by law.

 

2.         The property location is NW 33-7-70; located in Buckskin Heights 1st Filing; west of Horsetooth Mountain Park between N. County Road 27 and N. County Road 25E.

 

3.         Site data is as follows:

 

a.         Land Area:                               14.2 Acres

b.         Proposed Use:                          Single Family Residential

c.         Existing Zoning:             O-Open

d.         Surrounding Zoning:                  O-Open

e.         Existing Land Use:                    Vacant

f.          Surrounding Land Uses:            Residential, Recreational

g.         Access:                                    Woodchuck Drive

 

4.         The applicant proposes to construct a wind turbine tower in order to provide alternative sources of electricity for a single family home he intends to build on the property, which is currently vacant. The proposed height of the tower would be 85 feet tall and  would be located on a 14-acre parcel in a remote location.

 

5.         There are no major issues or concerns with this request.

 

6.         One area resident appeared in opposition and cited concerns about the visibility of the structure since it will be below her property.  Another area resident appeared in support and stated that use of this technology prevents cutting down trees for power poles and lines and the height is needed to obtain a good stream of wind.

 

7.         The applicable review criteria for the variance have been met as follows:

 

A.        There are special circumstances or conditions, such as exceptional topographic conditions, narrowness, shallowness or the shape of property, or other extraordinary and exceptional situation or condition of such piece of property, that are peculiar to the land or structure for which the variance is requested.

 

The subject property is on a heavily wooded lot in a remote, rural location which lessens the concerns normally associated with structure height requirements, such as emergency services accessibility and height competitions between neighbors, that are intended to deal with urban development.  In order for the wind turbine tower to function properly it needs to be high enough to receive a continuous even flow of air.  Given the tree height on the property (50 foot trees) the height of the wind turbine tower needs to be approximately 85 feet.

 

B.        The special circumstances are not the result of actions or inactions by the applicant or the current owner.

 

The above circumstances are not the result of action or inaction of the applicant.  The property’s physical characteristics and location were not created or altered by the applicant.

 

C.        The strict interpretation and enforcement of the Land Use Code provisions listed above would deprive the applicant of rights commonly enjoyed by other land in the area or land with the same zoning designation and would cause an unnecessary and undue hardship.

 

Strict enforcement of the height provisions of the Code will cause the owners an unnecessary hardship by prohibiting the construction and use of the wind turbine tower as designed and prepared.  Although height variances are not a common right enjoyed by others in the area, the reasons mentioned above for enforcing height restrictions do not exist on this property.

 

            D.        Granting the variance is the minimum action that will allow use of the land or structure.

 

Granting the variance is the minimum action that will allow the owner to construct the wind turbine tower in order to be effective.

 

            E.         Granting the variance will not result in a substantial adverse impact on other property in the vicinity of the subject land or structure.

 

It is not anticipated that granting the variance would adversely affect any neighbors or their properties. 

 

            F.         Granting the variance is consistent with the purpose of the Land Use Code and the Master Plan.

 

Granting the variance will not impair the intent and purpose of the Code or Master Plan.

 

            G.        The recommendations of referral agencies have been considered.

 

Referral agency comments were obtained.  No objections were offered from these agencies or departments.

 

8.         To approve this request would promote the harmonious development of the area, would be in the best interest of the people of Larimer County, would promote the convenience, prosperity and general welfare of the applicant and the immediate inhabitants of the area, and would be in consonance with the intent and purposes of the Larimer County Land Use Code.

 

Evelyn King moved and Alfred Shilling seconded the Motion that the Board adopt the following Resolution:

 

Resolution

 

WHEREAS, the Board having adopted its Findings and said Findings being incorporated in this Resolution by this reference as though fully set forth herein;

 

NOW, BE IT RESOLVED that applicant be and he hereby is granted his height variance as requested subject to the following conditions:

 

1.         Failure to comply with any conditions of the variance approval may result in reconsideration of the use and possible revocation of the approval by the Board of Adjustment.

 

2.         This approval shall automatically expire in one year unless the applicant takes affirmative action consistent with this approval by applying for the required building permit for this structure.

 

BE IT FURTHER RESOLVED, that in the event the Applicant, George Hobbs, not act upon the height variance granted herein by using the above-described property in accordance with this granted variance within one year from the date of this Resolution, this Resolution shall be null and void and of no further force and effect unless upon a showing of good cause to this Board, said period of time has been extended.   Any application for an extension of time must be made by Application to this Board on or before one year from the date of this Resolution.  If this action involves approval of a use (or expansion of a use) not otherwise permitted on the subject property, and if in the future the subject property is divided, then this action shall only pertain to one parcel resulting from any such division(s) and the Board of County Commissioners shall in its discretion determine which one of the resulting parcels shall enjoy the benefits of this action.

 

The question was called and members Alfred Shilling, Larry Chisesi, Eric Berglund and Evelyn King voted in favor of the Resolution.  The Findings and Resolution were duly adopted and the height variance was granted subject to conditions.

 

File No:           #06-BOA0600  (Smith, Dan Setback Variance)

Owner:            Dan and Louise Smith

Applicant:       Lonnie Sheldon / Van Horn Engineering

 

            A request to table the Dan Smith Setback Variance request until June 27, 2006, was made by Lonnie Sheldon of Van Horn Engineering on behalf of the applicant.

 

            Evelyn King moved and Eric Berglund seconded the motion that the Board table this matter until June 27, 2006 at 7:00 p.m.

 

            The question was called and members Alfred Shilling, Larry Chisesi, Eric Berglund and Evelyn King and voted in favor of the motion.

 

 

***

 

 

By Motion duly made, seconded and carried, the meeting was adjourned at 7:35 p.m.

 


 

APPROVAL OF MINUTES

 

            By Motion duly made, seconded and carried the above and foregoing minutes were approved on the _____ day of __________________, 2006.

 

                                                            LARIMER COUNTY BOARD OF ADJUSTMENT

 

 

                                                By:       __________________________________________

 

 

 

 

 

ATTEST:

 

 

 

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