MINUTES OF THE BOARD OF COUNTY COMMISSIONERS
Monday, JANUARY 3, 2005
LAND USE HEARING
The Board of County Commissioners met at 6:30 p.m. with Jim Reidhead, Director of the Rural Land Use Center; Chair Rennels presided, and Commissioners Bender and Gibson were present. Also present were: Doug Ryan, Health Department; Christi Coleman, Engineering Department; George Hass, County Attorney; and Gael Cookman, Deputy Clerk.
Chair Rennels opened the meeting with the Pledge of Allegiance and asked for public comment on the Larimer County Land Use Code and the County Budget. Brett Koontz presented the Board with a handout recommending a proposed change to the Land Use Code regarding outdoor storage. Chair Rennels stated that she would ensure the Steering Committee received it so they could take the recommendation into consideration.
1. BANDERET PRELIMINARY RURAL LAND PLAN: The proposal for the Banderet Preliminary Rural Land Plan is to divide 72 +/- acres into four (4) lots in the following manner: two (2) single-family residential lots and two (2) Residual Lots (private open space) with residences. The two residential lots will be 3 and 5 acres in size with the 3-acre lot having an existing home-site. The Residual Lots will each be 32-acres in size and each contain an 8-acre building envelope, leaving about 48 acres as private open space or 67% of the land. The Residual Lots will be protected for 40 years by either a covenant or deed restriction, as required under the RLUP. The residual land parcels will remain as dry pasture land. The property is located in Section 24, Township 4 North, Range 70 West. It is generally located west of Berthoud, 4 miles west of US Highway 287 on County Road 6. The property consists of dry pasture land. The land could be divided into two (2) 35-acre parcels without County input. The property is zoned FA-1 Farming. Under the property’s current FA-1 Farming (1 home site per 2.29 acres) zoning, up to 31 homes could potentially be built if brought through the County's Conservation Development (CD) process if adequate public facilities are provided. One residence already exists—the home of Nanna Banderet—and will be located on the proposed Lot 1. The new residential lots have been located to provide separation from the existing homes to the north and east. The project is part of the family’s efforts to deal with estate issues while preserving the majority of the land in its historic grazing use. The building envelope for Residual Lot B is not conspicuously visible from the east because it is located behind a small rise. Access to these new lots is proposed from the historic County Road 6 right-of-way or via an existing public right-of-way through the Foothills Estate subdivision located immediately to the southeast. The residential lots will be 3 and 5 acres in size. Water to these lots will be provided by either Little Thompson Water District or on-lot wells, whichever is available and feasible and each lot will have individual septic systems. The applicant is proposing appropriate architectural guidelines for this project to mitigate the visual impact of the proposed new residences and associated structures. The surrounding properties consist of parcels ranging in size from 35 acres or larger. To the southeast are Berthoud Estates, West Hill Estates, and Foothills Estates subdivision with a total of approximately 84 houses on 480 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 Loveland, Berthoud and Boulder County to the south; and attractiveness of “close-in” foothills property. The proposed density of the Banderet Rural Land Use project, one unit per 18 acres, appears to be compatible with the neighborhood. The residual land, approximately 48 acres and comprising roughly 67% of the property, will be protected from further development for a minimum of 40 years, as required by the RLUP. 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 and 2 and Residual Lots A and B will be party to this agreement. A neighborhood meeting was held on November 17, 2004, at the Berthoud Senior Center in Berthoud. About 25 area residents attended. The concerns were mainly about road maintenance, access issues, and public right-of-way issues pertaining to County Road 6. (Please see the attached list of questions and answers from the neighborhood meeting.) 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 major concerns and issues surrounding this application are as follows:
1. Issues concerning legal access: There has been a dispute between the applicant and the owner of a 40-acre +/- tract immediately east of the subject property concerning access to the Banderet’s land. The details of the case are complex and my main purpose here is to draw attention to the general situation. The neighbor has made a legal challenge to the applicant’s right to use what appears to be the historic right-of-way for County Road 6. The disputed road portion is a one-mile section of road that extends west from the east-west stretch of public road where County Road 23 transitions to County Road 23H. This past summer the applicant received a judge’s favorable ruling concerning his right to use a portion of the County Road 6 right-of-way. This ruling has been appealed and that appeal has yet to be ruled upon. As an alternative access route, there is a publicly-dedicated right-of-way through the Foothills Estates subdivision that comes to the southeast corner of the subject property. However, the northwest corner of the public right-of-way only meets the southeast corner of the subject property at a point, which does not create legal access. Because of the pending legal ruling regarding the appeal and because of the potential for gaining legal access to the Banderet’s property though the Foothills Estates public access, the following condition of approval is suggested: The applicant must demonstrate through competent legal evidence that 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.
2. Road Maintenance Agreements: As is both the policy and practice of the RLUP in situations such as this, I am recommending that the applicant make permanent arrangements with affected neighbors, including neighborhood road associations, to share in the cost of maintaining access road to the Banderet property. However, this will not be made a condition of approval.
3. Existing access easement across Banderet property: There is a recorded 16’ access easement from the private internal road that runs through the subject property. It is planned that this easement will run along the north edge of the Residual Lot B building envelope and will connect with the property to the west.
Staff findings are that this proposal is consistent with the policies of Section 5.8—Rural Land Use Process of the Larimer County Land Use Code:
Support for the Banderet 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 our 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 for at least 40 years.
· 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 on November 29, 2004 and their recommendation is to accept the proposed Banderet RLUP as presented with an additional condition that final approval be contingent on the applicants demonstrating legal access to County Road 6 and other access and right-of-way issues are resolved.
Mr. Reidhead explained the background and presented photos of the land and the proposed project; he then emphasized that the main issue at hand is access to the project via County Road 6, due to the fact that access rights are currently in litigation regarding this. Commissioner Gibson asked if the road was maintained by the County or privately maintained. Mr. Reidhead noted that the road is not maintained by the County, and that his understanding was that the road is public access, but privately maintained. Chair Rennels asked if there was a condition that gives this responsibility to the owners. Mr. Reidhead explained that there is no condition regarding this, but that it is understood that all four homes would pay their share of maintaining the road. Commissioner Bender questioned the possibly of a third access point with the easement to the east side of the property, but Mr. Reidhead noted that it is a one-way easement and would not be used for public access. At this time the applicant, Francis Banderet addressed the Board. Mr. Banderet stated that his father passed away this past summer and he wished to develop the property in a manner that makes sense for his father’s estate, but not go through a full blown subdivision; he explained that outcome of the initial court case awarded approximately a 30 foot easement on the north side of the section line.
Chair Rennels opened the hearing up for public comment and Bill Kleber, adjoining neighbor and defendant of the pending lawsuit, addressed the Board. Mr. Kleber gave some additional history on the lawsuit and historical usage of the road; he noted that in order to connect the subdivision on the south, to the Banderet property, the development would have to go through his property. Mr. Kleber noted that if he wins the appeal, then he will be able to close the gate and block the access to this area. Mr. Hass asked if Mr. Kleber believed the road to be public or private. Mr. Kleber responded in that he felt the road was private; however, the court has deemed that 20 feet of it is public, which in his opinion, is not enough to sustain a road access. Ms. Lynn Hilfers, adjoining neighbor to the east, then addressed the Board. Ms. Hilfers wanted it known for the record that the easement across the Banderet property is there and she wants it to remain. Chair Rennels asked if it was used for agricultural purposes and Ms. Hilfers replied in the affirmative. Chair Rennels then closed public comment. Mr. Banderet then read an excerpt of the findings from the Court and presented a copy for the County Attorney.
The Rural Land Use Director recommended that the Board of County Commissioners approve the Banderet Rural Land Plan with numerous conditions; however, The Board and the County Attorney were not inclined to make a decision, or approve conditions, until the lawsuit regarding access from County Road 6 is resolved; therefore, the Board decided to table this item. The Board also stated that they believe that the Banderet Rural Land Use Plan is a good project and hoped that the access issues could be resolved soon.
M O T I O N
Commissioner Bender moved that the Board of County Commissioners table the Banderet Preliminary Rural Land Plan until April 4, 2005, at 6:30 p.m.
Motion carried 3-0.
The meeting adjourned at 7:40 p.m.
TUESDAY, JANUARY 4, 2005
The Board of County Commissioners met at 9:00 a.m. with County Manager Frank Lancaster. Chair Rennels presided and Commissioners Bender and Gibson were present. Also present were: Donna Hart, Melinda Keen, and Deni LaRue, Commissioner’s Office; Joe Ferrando (via teleconference), Community Corrections; Russ Legg, Planning Department; and Gael Cookman, Deputy Clerk.
1. PUBLIC COMMENT: Ron Moore, owner of Colorado Probation Services, Inc., addressed the Board regarding juvenile youth services; Mr. Moore requested the ability to be able provide probationary services to juveniles and possibly to some low risk adults. Much discussion ensued regarding this topic, with the Board requesting another worksession to meet with the Judges imposing the sentences, the Alternative Sentencing Unit, and any other interested parties in order to resolve this. Mr. Lancaster explained that since Mr. Moore had cases in process that were dictated by the court, the Board should make a motion to authorize Mr. Moore's company to finish out their case load. The Board noted that they would take care of this during Administrative Matters meeting that follows.
James Smith then addressed the Board and gave special thanks to Tom Bender for his years of service as a Commissioner for Larimer County. The Board echoed Mr. Smith's respect for Commissioner Bender's hard work during the last four years.
2. APPROVAL OF THE MINUTES FOR THE WEEK OF DECEMBER 27, 2004:
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners approve the minutes for the week of December 27, 2004, as presented.
Motion carried 2-0.
3. REVIEW OF THE SCHEDULE FOR THE WEEK OF JANUARY 10, 2005: Ms. Hart reviewed the upcoming schedule with the Board.
4. CONSENT AGENDA:
M O T I O N
Commissioner Bender moved that the Board of County Commissioners approve the following items as presented on the Consent Agenda for January 4, 2005:
01042005A001 AGREEMENT FOR USE OF PROPERTY FOR FIREARMS TRAINING BETWEEN THE BOARD OF COUNTY COMMISSIONERS FOR THE USE AND BENEFIT OF THE LARIMER COUNTY SHERIFF'S DEPARTMENT AND DELORES J. BARGER
01042005A002 AGREEMENT FOR PROFESSIONAL SERVICES BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND DAVID M. BENNETT, CRIMINAL JUSTICE CONSULTANT
01042005A003 LAYOFF WAIVER AND RELEASE AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND CAROL SHAFFER
01042005A004 LAYOFF WAIVER AND RELEASE AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND JOHN SHEPARD
01042005A005 LAYOFF WAIVER AND RELEASE AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND SANDRA S. DAHLGREN
01042005R001 FINDINGS AND RESOLUTION APPROVING THE EXTENSION OF PRELIMINARY PLAT APPROVAL OF COYOTE RIDGE SUBDIVISION
Motion carried 3-0.
5. COLORADO PROBATION SERVICES, INC.: The following action is a result of the public comment listed above:
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners designate Colorado Probation Services Inc., as a provider for juveniles through June 1, 2005, and to allow Colorado Probation Services Inc., to finish their current case load of adult clients.
Motion carried 3-0.
6. REQUEST TO WAIVE ANNEXATION IMPACT REPORT FOR ESTES PARK: Mr. Legg explained that the Town of Estes Park and Larimer County have an Intergovernmental Agreement in which the County supports annexation whenever and wherever possible with regards to proposed development. Mr. Legg noted that the Town has requested that the Board waive the requirement for the annexation impact report, as it is just additional paperwork and elimination of this requirement will save both time and money for the Town and the applicant.
M O T I O N
Commissioner Bender moved that the Board of County Commissioners approve waiving all future Annexation Impact Reports for properties within the bounds of the Estes Valley Development Code.
Motion carried 3-0.
7. WAIVER OF COUNTY POLICY 331.5C TO ADJUST MERIT INCREASES FOR THE YEAR 2005: Mr. Lancaster stated that the Board needed to make a formal motion to adjust the merit increases for 2005, as it differs from county policy. Commissioner Gibson asked why the merit increase percentage is written into the policy and why the Board doesn't set this each year as the budget dictates. Mr. Lancaster stated that historically the merit increases have held steady at 5%; however, Mr. Lancaster agreed that, with the budget constraints the County has been facing in current years, it would be wise to re-visit this issue and possibly remove it from the policy and let the Board set the percentage each year.
M O T I O N
Commissioner Gibson moved that the Board of County Commissioners approve a waiver to section II F 2 of County Policy 331.5C for the year 2005, reducing the annual merit increase from 5% to 2%.
Motion carried 3-0.
8. BOARDS AND COMMISSIONS APPOINTMENTS: Ms. Keen stated that the following individuals are being recommended for appointment or reappointment to their respective Board or Commission: Brian Oppenheimer, appointment to the Planning Commission for a 1-year term expiring June 30, 2006; Sarah Walsh, appointment, and Marshall Hesler, and Barbara Lister, reappointment to the Estes Valley Library Board, for a 4-year term expiring December 31, 2008.
M O T I O N
Commissioner Bender moved that the Board of County Commissioners approve the appointments and reappointments to the Estes Valley Library Board and the Planning Commission as outlined above.
Motion carried 3-0.
9. WORKSESSION: There were no worksession items to discuss.
10. COMMISSIONER ACTIVITY REPORTS: The Board noted their attendance at events during the past week.
11. LEGAL MATTERS: There were no legal matters to discuss.
There being no further business, the meeting adjourned at 10:15 a.m.
KATHAY RENNELS, CHAIR
BOARD OF COMMISSIONERS
CLERK AND RECORDER
Gael M. Cookman, Deputy Clerk