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> Meetings & Minutes > Commissioners' Minutes > BCC Minutes for 05/03/10  

 

 

 

 

 

 

 

 

MINUTES OF THE BOARD OF COUNTY COMMISSIONERS

 

 

Monday, May 3, 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 and Gaiter were present. Also present were:  Jeff Goodell and Marc Lyons, Engineering Department; Eric Fried, Toby Stauffer, Sean Wheeler, and Michael Whitley, Planning Department; Jeannine Haag, County Attorney’s Office; and Melissa Lohry, Deputy Clerk.

 

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

 

Mr. Lafferty recommended that item #3, “Little Elk Meadows Bed & Breakfast Minor Special Review & Appeal,” file #10-Z1781, be added to the consent agenda as staff and the applicant were in agreement regarding all conditions of approval.

 

Chair Johnson explained that the following items were on the consent agenda and would not be discussed unless requested by the Board, staff, or members of the audience:

 

1.         COTTINGHAM EXPANSION OF A NONCONFORMING BUILDING, FILE #10-Z1788:   This is a request for approval of an appeal to Section 4.8.9.B.2 of the Larimer County Land Use Code, which contains regulations for the expansion of nonconforming buildings. The land use code requires that an addition to a nonconforming building be outside the respective setback and that the addition be less than or equal to 25-percent of the square footage of the original building and not more than 1000-square-feet total.

           

The residence in question was constructed in the 1930’s, prior to the current code regulations, and it is approximately 897-square-feet in size. The house is approximately 75-feet from the centerline of Highway 14 and the eastern most point of the proposed addition would be 72-feet from the centerline of the road. Currently, the minimum required setback from the centerline of Highway 14, as outlined in the land use code, is 100-feet.

           

The applicant proposes to add on a 910-square-foot living room and garage onto the east side of the current residence and a 150-square-foot dining room onto the west side of the existing residence. If approved, the western most point of the proposed addition would lie within the 5-foot required side line setback.

 

No objections have been received from any surrounding property owners or interested county, state or federal agencies, and staff has found that the proposed additions would not subvert the purpose of the land use code or be detrimental to properties in the area. Therefore, staff recommends approval of the Cottingham Expansion of a Nonconforming Building, file #10-Z1788, subject to the following conditions:

 

1.         Prior to submission of the building permit application, the property owner shall apply for a sewer system permit with the Department of Health.

 

2.         Upon approval of the request, the owner shall apply for necessary building permits.

 

2.         PLEASANT ACRES 2ND FILING, LOT 33 EASEMENT VACATION, FILE #10-S2950:   This is a request for the vacation of a 5-foot utility easement located on the south and east property lines of Lot 33, of the Pleasant Acres Subdivision’s 2nd filing.

 

This application was reviewed by the appropriate departments and all of which indicated no issues of concern. Therefore, staff recommends approval of the Pleasant Acres 2nd Filing, Lot 33 Utility Easement Vacation, file #10-S2950.

 

3.         LITTLE ELK MEDOWS BED & BREAKFAST MINOR SPECIAL REVIEW & APPEAL, FILE #10-Z1781:   This is a request for approval to operate a bed and breakfast for up to six guests, on Lot 10 in the Pinewood Springs Subdivision’s 11th filing. The applicants propose converting the existing bedrooms, bathrooms, kitchen, and dining area for the bed and breakfast use.

 

According to the project description, the total area used for the bed and breakfast will be approximately 784-square-feet. If approved, primary access to the bed and breakfast would be from Highway 36 via a private drive and no internal subdivision roads would be used. The subject property and surrounding area is zoned O-Open. 

 

The applicants held the required neighborhood meeting on January 20, 2010, and fifteen neighbors attended with questions focused primarily on the use of water for the project. Since that time, two neighbors have contacted staff with objections to the request, specifically related to the proposed business use, negative impacts on the water supply, and the use of private subdivision open space. 

 

No reviewing agencies raised objections to approval of this request, including the pertinent water and fire districts. 

 

In reviewing the application, staff has found that the b ed and breakfast use, with six or fewer guests, is considered a low impact operation and thought to be compatible with the surrounding residential uses. Also, the applicants are not proposing any exterior modifications to the existing residence, so the character of the residential structure will remain unchanged from the perspective of surrounding properties.

 

The Land Use Code allows for approval of a bed and breakfast use with six or fewer guests under the Minor Special Review process. This process requires consideration of issues such as the provision of adequate water and sanitary sewer, access, parking, etc. The Health and Engineering Departments did not indicate any concerns regarding the proposed use, nor did the Pinewood Springs Water District, except to require the applicants to obtain an additional water tap.

 

Most of the neighboring property owners that contacted the Planning Department supported the request at this size and scope, and the homeowners association for the subdivision did not object to the use. The applicants have been advised that approval will require them to obtain a building permit and additional water tap. 

 

Ultimately, staff’s findings are that the use is appropriate at this location, based on the size, scope, and supports approval of the Little Elk Meadows Bed & Breakfast Special Review and Appeal, file #10-Z1781, subject to the following conditions:

 

1.         The site shall be developed consistent with the approved plan and information contained in the Little Elk Meadows Bed & Breakfast Minor Special Review, file #10-Z1781, except as modified by the conditions of approval or agreement of the  county and applicant. The application is subject to all other verbal or written representations and commitments of record for the Little Elk Meadows Bed & Breakfast Minor Special Review, file #10-Z1781.

 

2.         This application is approved without the requirement for a Development Agreement. In the event the applicant fails to comply with any conditions of approval, or fails to use the property consistent with the approved Minor Special Review, the applicant agrees that in addition to all other remedies available to the county, the county may withhold building permits; issue a written notice to applicant to appear and show cause why the Minor Special Review approval should not be revoked; and/or bring a court action for enforcement of the terms of the Minor 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 Minor Special Review approval, the applicant agrees to pay all expenses incurred by the county including, but not limited to, reasonable attorney’ s fees. The county may conduct periodic inspections to the property and reviews of the status of the Minor Special Review as appropriate to monitor and enforce the terms of the Minor Special Review approval.

 

3.         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.

 

4.         The owner is responsible for obtaining all required building permits for the Little Elk Meadows Bed and Breakfast, Minor Special Review use. All applicable fees apply to this use and shall be paid no later than October 31, 2010.

 

5.         The Bed and Breakfast use is limited to a total of six (6) guests as defined by the Larimer County Land Use Code.

 

6          The single-family character of the property must be maintained.

 

7.         The applicants will coordinate with the Pinewood Springs Volunteer Fire District for driveway and access improvements, and provide written verification they have reached agreement with the Fire District for the timing of those improvements no later than October 31, 2010.

 

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

 

9.         The applicant shall obtain an additional water tap from the Pinewood Springs Water District for the use.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the consent agenda as outlined above.

 

Motion carried 3-0.

 

4.         HENNEBERG MEDICAL MARIJUANA ZONING VIOLATION:  The owner of the property in question is in violation of Larimer County Land Use Code Section 4.1.18.A, by virtue of operating a medical marijuana dispensary and growth operation without first obtaining special review approval. The property owner is also in violation of Section 105 of the 2006 International Building Code, adopted by Larimer County, for constructing a marijuana growth facility, without first obtaining the required building permit.

 

The subject property is located on the southeast corner of the intersection of Highway 287 and County Road 8, within the Berthoud Growth Management area, contiguous to the Town of Berthoud, and within 500-feet of two existing residences.

 

Code compliance staff received a complaint on March 22, 2010, about a medical marijuana dispensary that had been operating for about one month without county approval. Mr. Fried went to the site that same day and noted an “Herbal Rx” sign in front of a modular home that was once used to house Rainbow Auto Sales. At that time, Mr. Young, the business’ proprietor indicated the business had been operating for about a month.

 

Mr. Fried explained that under Larimer County Land Use Code rules, medical marijuana dispensaries must obtain Special Review approval prior to operating and scheduled a meeting with Mr. Young and county planners to discuss the measures that must be taken to become compliant with Larimer County Land Use Code.

 

On April 1, 2010, Mr. Fried received a phone call from Michael Bruner of the Berthoud Fire Protection District informing him that the owners of Herbal Rx LLC had constructed grow rooms within a shop building located on the property. A search of county records indicated the property owner had not obtained the necessary building permit, which resulted in another visit to the property. At that time, Mr. Fried posted a Stop Work Order and requested permission to inspect the construction work that had occurred. Permission was denied by Mr. Young.

 

Mr. Young was then informed that building and state electrical permits were required before any additional work could be completed. Mr. Fried then notified the Colorado Electrical Board by phone and requested an investigation of the wiring that had been done. To date no building permit application has been submitted.

 

According to Larimer County’s Intergovernmental Agreement with the Town of Berthoud, and the county land use code, the county will not accept or process a Special Review application within the Berthoud Growth Management Area for properties with contiguity to the town limits until the Town of Berthoud has denied a petition for annexation. The property owner has indicated that he is working with the Town of Berthoud to apply for annexation but a formal application has not been filed. Town  Interim Planning Director, Tim Katers, has indicated to county staff that he anticipates the Town would likely approve an annexation request but the earliest date annexation could take effect would be late August, 2010.

 

Larimer County Land Use Code amendments on medical marijuana operations were adopted to ensure compliance with county codes and state law. Concerns raised by this operation include proximity to residences, schools, parks, community centers, and other facilities, as well as security, smoking, and consumption of medical marijuana on site. There are also concerns about un-permitted construction, including issues of structural stability, fire sprinklers, and fire danger from faulty electrical wiring.

 

Staff recommends the Board of County Commissioners find a violation exists, require compliance with Larimer County Land Use Code, set a deadline for compliance, and authorize legal action if the deadline is not met. The following items must be completed in order to reach compliance with the Larimer County Land Use Code: 

 

1.         Application for annexation of the property into the Town of Berthoud.

 

2.         If annexation into the Town of Berthoud is denied, a Special Review application must be submitted to the Planning Department in a timely manner.

 

3.         Acquisition of building permits for all the construction on the property.

 

Chair Johnson opened the hearing to the applicant and Trevor Updegraff, attorney for the business owners addressed the Board. Mr. Updegraff stated that his clients admit non-compliance with county codes and are currently in the process of applying for annexation to the Town of Berthoud. Mr. Updegraff requested the Board allow the business to continue operations until compliance is achieved.

 

Chandra Geist, business owner, asked the Board to grant her 120-days to become compliant with county and building regulations. Ms. Geist stated that Herbal Rx, LLC offers services other than marijuana, including essential oils and noted that closure of the business would impede patients from receiving the medication they require.

 

Isaiah Young, business owner, informed the Board that he had been performing repairs and remodeling on the property and that he is a licensed contractor. Mr. Young noted that he had refused Mr. Fried access to the construction area because Mr. Fried did not possess a medical marijuana prescription card appointing Mr. Young as a personal caregiver.

 

Chair Johnson asked Mr. Young how many patients had appointed him as their personal caregiver. Mr. Young stated that he and Ms. Geist were each registered caregivers for 30-patients.

 

Chair Johnson opened the hearing to public comment and Dennis Henneberg, owner of the property on which Herbal Rx LLC is located, addressed the Board. Mr. Henneberg stated that he was aware of the intent of Mr. Young and Ms. Geist when they rented the property and he has supported the use due to the improvements Mr. Young and Ms. Geist made to the location. Mr. Henneberg stated that he had the opportunity to lease the property to individuals who intended to open a country western bar but chose not to do so in the interest of protecting surrounding land owners. Lastly, Mr. Henneberg informed the Board that he has not had any problems with the business’ owners, or patrons.

 

Commissioner Donnelly asked Mr. Henneberg if Mr. Young and Ms. Geist have made any security enhancements to the property due to the nature of the operation. Mr. Henneberg stated that a security system had been installed and the property is monitored, via the security system, when the business owners are not present.

 

Elizabeth Kearney, Martha Simmons, Mina Cox, Nancy Lamb, Diane Pollock, and Ralph Walsh, all residents of the Town of Berthoud, addressed the Board in opposition to allowing Herbal Rx LLC to continue operations until compliance with county code is attained. All cited the business owners’ poor judgment and disregard for regulations as reason to cease the non-compliant operations. Many of the individuals in opposition to Herbal Rx LLC also discussed the negative visual, economic, and criminal impacts associated with marijuana dispensaries.

 

Chair Johnson closed the hearing to public comment and allowed for rebuttal from the property and business owners. Mr. Updegraff addressed the Board and stated that the use of medical marijuana is allowed by the Constitution of the State of Colorado, as is the ability of patients to designate a personal caregiver. Mr. Updegraff requested the Board grant the business owners 120 to 125-days to become compliant with Larimer County codes.

 

Chair Johnson closed the hearing to rebuttal.

 

Commissioner Donnelly stated that he found the business owners’ disregard of county rules and regulations very troublesome. He also noted great concern about the construction that had occurred without a building permit and Mr. Young’s actions as a licensed contractor. Commissioner Donnelly stated that while the business may provide worthwhile services, its location was a poor fit for the community and he did not feel the illegal use should be allowed to continue.

 

Commissioner Gaiter voiced concern with allowing the business operations to continue due to the Intergovernmental Agreement currently in place with the Town of Berthoud. He noted that while the town board may choose to annex the property, they may not choose to allow the business use to continue; therefore, he suggested the Commissioners find the owners of Herbal Rx LLC to be out of compliance with the Larimer County Land Use Codes and require operations to cease.

 

Chair Johnson noted that during the creation of medical marijuana codes, the county had worked very closely with individuals and business owners in the medical marijuana industry. He felt the codes could be triumphant in protecting land owners, while also allowing dispensaries to be successful; however, those regulations would be undermined if the county allowed Herbal Rx LLC to continue operations after its owners chose not to obey the pertinent codes. Chair Johnson suggested the Board allow Herbal Rx LLC 30-days to become compliant with the land use codes and then authorize legal action to cease the non-conforming business operations.

 

M O T I O N

 

Commissioner Donnelly moved that the Board of County Commissioners find a violation exists; require Herbal Rx LLC to become compliant with the Larimer County Land Use Code and obtain all required building permits within 30-days of this hearing, cease all operations if the 30-day deadline is not met, and authorize legal action if the neither compliance is achieved or operations are ceased within the 30-day deadline.

 

Motion carried 3-0.

 

5.         MILTON ALSUM EXEMPTION, LOTS 2 & 3 AMENDED PLAT, FILE #10-S2942:  This is a request for approval of an amended plat of the Milton Alsum Exemption to remove a 100-foot building setback line from lot 2 and remove a 150-foot building setback line from lot 3.

 

Properties within the Milton Alsum Exemption are zoned FA-Farming and standard setbacks in the farming zone are 25-feet from a street or road, 5-feet from a side property line, and 10-feet from a rear property line. In addition, County Road 18 is classified as an arterial roadway which carried a setback requirement of 110-feet from the right-of-way centerline.

 

On November 22, 2006, a building permit for the construction of a 60-foot by 80-foot detached accessory building was issued to Kenneth & Nona Dutchak. A second building permit was issued on December 22, 2008, for a partial basement finish within the accessory building, after staff was notified that work had already begun on the basement.

 

The plot plan submitted in 2006 with the building permit application indicated the accessory building would have a rear setback of 18-feet. The 18-foot setback complies with the FA-Farming zone rear setback of 10-feet; however, the plot plan did not disclose the 150-foot building setback noted on the Milton Alsum Exemption plat, which resulted in the building being entirely within the setback. 

 

Staff was not aware of the 1974 plat at the time either building permit was issued. The owners’ permit applications do not note that the property was within a subdivision exemption and the plot plan showed a metes and bounds legal description. In addition, the building permit application for the single-family home on lot 2, submitted in 1975, and the building permit application for the single-family home on lot 3, submitted in 1976, did not disclose either of the 100-foot or 150-foot building setback lines. Therefore, the primary structure on lot 2 crosses into the setback by about 2-feet.

 

The Signet PUD (also known as the LaPaz Subdivision) is the subdivision located south of the Milton Alsum Exemption. The LaPaz Homeowners Association brought the 150-foot setback to the county’s attention in a letter dated April 4, 2009, and several of the Signet PUD property owners have since called for the remove of the accessory building.

 

After reviewing both building permit applications and the pertinent facts, the Planning Director made a written determination on May 5, 2009, that the building permit for the 60-foot by 80-foot building and the building permit for the partial basement finish were issued based upon incorrect, inaccurate, and incomplete information provided by the property owner. 

 

The Dutchaks appealed the Planning Director’s determination to the Board of County Commissioners at a public hearing on September 8, 2009. At that time, the Board upheld the determination and found the permits were issued in error. The Dutchaks filed an appeal to the Board’s decision with the district court but have since postponed action on the appeal.

 

Base on the Board’s September 8, 2009, ruling, the Dutchaks have three options regarding the 60-foot by 80-foot building:

 

1.         Obtain a building permit to move the structure and underlying basement to a place on the property that meets the 150-foot building setback requirement.

 

2.         Remove the structure and underlying basement from the property.

 

3.         Receive approval of an Amended Plat that removes the 150-foot building setback line from the property, which would allow the building to remain in its current location.

 

The Dutchaks have chosen to apply for an amended plat to remove the 150-foot building setback line.

 

The owners of lot 2 are co-applicants to the amended plat application and are seeking to remove the 100-foot building setback line from their lot. An improvement location certificate submitted with the application illustrated that the home on lot 2 encroaches into the 100-foot setback by approximately 2-feet and there are no other structures located on the lot; however, if the proposed amended plat is approved, additional structures on Parcel 2 could be constructed within 5-feet of the southern property line. 

 

Additionally, the Milton Alsum Exemption plat restricts lot 3 to a single 25-foot-wide access point onto County Road 18 at the east end of the parcel; however, the Dutchaks established a second access point onto County Road 18 on the west end of their property without obtaining a required access permit. 

 

County Road 18 is classified as an arterial roadway and the county access standards state that no more than one access shall be allowed to an individual lot to an arterial road and requires all driveways or roads that access the arterial be located a minimum of 660-feet from each other.  The second, illegally created access is only 522-feet east of Darton Drive and just 227-feet west of the legal driveway onto the Dutchak property, and therefore, does not meet county access standards.

 

Minutes from the Board of County Commissioners meeting on November 21, 1977, note that Milton Alsum worked with representatives from Signet PUD so that the design and protective of the Milton Alsum Exemption would complement the Signet PUD. The building setback restrictions along the southern end of the Milton Alsum Exemption were presumably established to provide a buffer between buildings on parcels within the Alsum Exemption and the Signet PUD. 

 

While the building setbacks established on lots 2 through 5 of the Alsum Exemption are much more restrictive than the setbacks that would otherwise be imposed on properties in the same zoning district, the building setback lines were voluntarily established by the property owner at the time that the exemption was approved and subsequent property owners should have been aware of the setbacks because they are a matter of public record both on the plat and within the covenants. And, while the current owners of lots 2 and 3 have the ability to request removal of the building setback lines, the setback lines appear to have been established partially for the benefit of property owners within the adjacent Signet PUD, therefore property owners within the PUD have an interest in the continuation of those restrictive setbacks.

 

Representatives of the Signet subdivision have indicated an expectation that Larimer County will enforce the building setback regulations and contend that a ruling to remove the building setback lines would reward a property owner for constructing a building that did not meet the setback requirements. Some property owners within the Signet PUD view the 60-foot by 80-foot building on Parcel 3 to be an obstruction to their views and a potential detriment to property values in the area.

 

While the issues associated with most amended plat applications are technical in nature, the issue of removing the building setback lines is more of a political issue. For that reason, staff recommends denial of the second access point but does not forward a recommendation regarding the removal of the building setback restrictions.

 

Chair Johnson opened the hearing to the applicants and Nona Dutchak addressed the Board. Ms. Dutchak stated that the 60-foot by 80-foot building was constructed at a cost of $166,000; to disassemble the building would cost an additional $95,000; and to remove the building, foundation, retaining wall, and re-grade the property would cost an additional $194,450. Therefore, according to Ms. Dutchak, a great financial hardship would ensue if the Board did not approve the amended plat application. She stated that she and her husband were unaware of the setbacks and have personally apologized to the surround land owners. Lastly, Ms. Dutchak claimed that the surrounding land owners should have noted their displeasure to the Dutchaks during the 20-months that the building was being constructed instead of waiting until construction was complete.

 

Don Milligan, attorney representing the applicants, stated only two homes within the Signet PUD have partial views of the accessory building.

 

Kenneth Dutchak addressed the Board and stated that the second driveway on the property was created in 2004 by a contractor who assured him that a permit was not required. He requested the approval to retain the access as it has a wider turning radius and a better view of the traffic on County Road 18.

 

Chair Johnson opened the hearing to public comment and Joyce Moore, Matt Engleking, Kim Troyer, Steve Jones, Eugene Decker, Richard Roush, Hari Walner, David Hutchinson, Ron Gries, and Dale Greer, all residents and property owners of the Signet PUD, addressed the Board in opposition to the amended plat. All voiced displeasure with the physical appearance of the building, concern about the intended use of the building, and distrust in Mr. Dutchak’s proclaimed ignorance of setbacks as justification for denial.

 

Mr. Roush stated that his son, Dale Roush, once owned a lot in the Alsum Subdivision and told Mr. Dutchak about the setbacks before Mr. Dutchak began construction on the accessory building.

 

Many residents of the Signet PUD claimed they called the Larimer County Planning Department with concerns about the building’s proximity to Mr. Dutchaks property line, however, they were informed that the building was permitted and approved by the county. Many residents also noted that they were intimidated by Mr. Duchak, which is why they did not confront him about the location of the building.

 

David Shupe, former resident of Signet PUD addressed the Board. Mr. Shupe explained that the Board of County Commissioners appointed him to assist Mr. Alsum in the creation of the Milton Alsum Exemption to ensure harmony between the Alsum Exemption and the Signet PUD. He assured the Board that the building setbacks were purposely set by Mr. Alsum to maintain an open landscape and should be left in place.   

 

David Knighten, personal friend of the Dutchak family, informed the Board that he did not believe the Dutchaks to have ever acted maliciously. He also stated that the Dutchaks were genuinely not aware of the setbacks listed on the exemption plat.

 

Chair Johnson closed the hearing to public comment and called for applicant rebuttal. Ms. Dutchak stated that she and her husband completed the building permit application to the best of their ability and had not purposely misled county staff.

 

Mr. Dutchak addressed the Board and stated that he did not recall ever having the aforementioned conversation with Dale Roush about setbacks.

 

Commissioner Donnelly stated that he believed it was the Dutchaks’ responsibility to provide all of the pertinent information to the Building Department before construction began on the accessory building; therefore, he was against approval of the amended plat.

 

Commissioner Gaiter voiced concern about the lack of communication from residents of the Signet PUD to Mr. Dutchak during construction of the accessory building; however, it appears that many of the concerned homeowners contacted staff and assured of the building’s proper placement. Commissioner Gaiter stated that he did not believe it was appropriate to approve the amended plat.

 

Chair Johnson stated that while it was unfortunate that the Dutchaks had already invested such a large quantity of money into the accessory building, the setback information was available to them, in the public records, and the responsibility for the missing or incomplete should fall upon the applicant. And, while it is not clear whether the violations were created intentionally, he did not support approval of the amended plat. Lastly, Chair Johnson stated that he was in favor of amending the setback line on lot 2, to reduce the setback by 5-feet, and removed the encroachment of the existing residence into the 100-foot setback.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the Milton Alsum Exemption Lot 2 Amended Plat, file #10-S2942 to change a 100-foot building setback line to a 95-foot setback line on lot 2 and deny the request to remove a 150-foot building setback line from lot 3 (designated on the original plat) and deny a second access point from County Road 18 onto lot 3.

 

Motion carried 3-0.

 

There being no further business, the Board adjourned at 7:30 p.m.

 

TUESDAY, MAY 4, 2010

 

ADMINISTRATIVE MATTERS MEETING

 

The Board of County Commissioners met at 9:00 a.m. with Frank Lancaster, County Manager. Chair Johnson presided and Commissioners Donnelly and Gaiter were present. Also present were: Neil Gluckman, Donna Hart and Deni LaRue, Commissioners’ Office; Matt Lafferty, Samantha Mott, and Candace Phippen, Planning Department; Emily Dawson-Peterson, Larimer Center for Mental Health;  and Melissa Lohry, Deputy Clerk.

 

1.         PUBLIC COMMENT:        Lee Tucker appeared before the Board to discuss his concern regarding the Boxelder Stormwater Authority.

 

2.         APPROVAL OF THE MINUTES FOR THE WEEK OF APRIL 26, 2010:

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the minutes for the week of April 26, 2010.

 

Motion carried 3-0.

 

3.         REVIEW OF THE SCHEDULE FOR THE WEEK OF MAY 10, 2010:   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 documents, as presented on the consent agenda, below:

 

PETITIONS FOR ABATEMENT:  As recommended by the County Assessor, the following Petitions for Abatement were denied: Betty J. Hall; Carroll E. Cromer; Cheryl Nickerson; Doris Pellemeier; DS Partnership LLC; Elaine Taylor; Lennar Colorado LLC; Patricia L. Shields; Thomas & Cheryl Poff Trust; Vault-Rainbow Corporation; and William D. Pitts & Rebecca L. Barton. As recommended by the County Assessor, the following Petitions for Abatement were approved: Jim Birdsall; Sharon K. Anderson; Hadi H. Aly & the Alay Family Trust; Craig Mattison & Noel Mattison; and Timothy Dean George.

 

05042010R001           SALARY RESOLUTION FOR DEPUTY DISTRICT ATTORNEY NICHOLAS G. CUMMINGS

 

MISCELLANEOUS:   Temporary Reinstatement of Board of Adjustment Members Matt Strauch and Jean Christman for a Special Board of Adjustment Meeting; Policy & Procedure 300.1 – Purchasing Policy.

 

LIQUOR LICENSES:  Baldplate Inn LTD – Hotel & Restaurant – Estes Park.

 

Motion carried 3-0.

 

5.         MENTAL HEALTH MONTH PROCLAMATION:   Ms. Dawson-Peterson informed the Board that over the last year, 54-residents of Larimer County committed suicide and noted that most suicide cases are the result of undiagnosed and untreated depression. To raise awareness of the raising suicide rates, she requested the Board proclaim May “Mental Health Month” in Larimer County. Commissioner Gaiter then read the proclamation aloud.

 

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners approve the proclamation to declare May “Mental Health Month” in Larimer County.

 

Motion carried 3-0.

 

6.         PRESENTATION OF QUARTERLY POLICY GOVERNANCE REPORT :  Mr. Lancaster explained that under section 2.3 of the Larimer County Policy Governance, the County Manager must provide monitoring reports on a quarterly basis. For the month of April, this report is to be on the compliance with financial policies, and Mr. Lancaster noted that the county is fully compliant with all of its financial policies.  

 

Chair Johnson thanked Mr. Lancaster for the information provided.

 

7.         LEGISLATIVE UPDATE:  Mr. Gluckman stated that all of the bills supported by the county were signed into law and all of those opposed by the county were postponed indefinitely.

 

Chair Johnson thanked Mr. Gluckman for the review and the Board directed him to proceed with scheduling the annual legislative wrap-up session between the Board and local legislators.

 

8.         COUNTY MANAGER WORKSESSION:  Mr. Lancaster, Mr. Lafferty, Ms. Mott, and Ms. Phippen asked the Board for direction regarding a special event permit for camping and a shuttle service on the Graves property on May 14, 15, and 16, 2010.

 

Mr. Lafferty explained that during the Administrative Matters meeting on April 12, 2010, the Board approved 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. As part of the special review process connected to the approval, staff discovered an active bald eagle nest on the southeast corner of the Graves property. When information about the nest was relayed to the Colorado Department of Wildlife (CDOW), CDOW recommended “no surface occupancy within ¼ mile radius of active nests.” Because of the location of the nest and the size of the property, a ¼ mile radius of inactivity would prohibit any use of the Graves property.

 

Commissioner Gaiter asked Mr. Lancaster if parking and camping had historically occurred on the property and Mr. Lancaster stated that un-permitted parking and camping had occurred on the last summer but the magnitude and frequency of the use is unknown.

 

Commissioner Gaiter stated that he was not in favor of denying the entire special event application because he believed the applicant had not been given adequate notice to make alternative arrangements for parking or camping.

 

Chair Johnson stated that he was uncomfortable allowing parking to occur on the site due to the recommendation of CDOW and would definitely not support allowing camping to occur on the property.

 

Commissioner Donnelly agreed that allowing the site to be used for camping would not be responsible.

 

Direction was given to Mr. Lancaster to partially approve the special event application for May 14, 15, and 16, 2010, to allow only parking related to the shuttle service to occur on the Graves property and require a physical barrier to be erected to prevent visitors from reaching the bald eagle nest.

 

9.         COMMISSIONER ACTIVITY REPORTS:  The Board reviewed their attendance at events during the previous week.

 

10.       LEGAL MATTERS:  There were no legal matters to be discussed.

 

There being no further business, the Board recessed at 11:00 a.m.

 

 

PUBLIC HEARING ON REGULATIONS

CONCERNING SPECIAL EVENTS ON COUNTY ROADS

 

The Board of County Commissioners reconvened at 6:30 p.m. with Frank Lancaster, County Manager. Chair Johnson presided and Commissioners Donnelly and Gaiter were present. Also present were: Deni LaRue, Commissioners’ Office; and Melissa Lohry, Deputy Clerk.

 

Mr. Lancaster presented the following proposed changes to the Board and noted that the changes proposed were crafted with a large amount of input from the public and from event coordinators.

 

Resolution Establishing Special Event Permit Requirements for Larimer County Roads

 

SECTION I - Authority

Authority for the administration and enforcement of the Special Event Permit for Larimer County Roads is derived from the Colorado Revised Statutes (C.R.S.), Sections: 18-9-107, 42-4-104, 42-4-105, 42-4-107, 42-4-109, 42-4-410, 42-4-504, 42-4-507, and 42-4-508.

 

SECTION II - Purpose

A County Road special event is considered to be: a bicycle race or ride; foot race or walk; a motored vehicle event; a temporary road closure for purposes other than normal highway uses; or any other event utilizing a Larimer County road or other County property that requires changing, restricting, or adapting the normal traffic use of such a road. The purpose of the Special Event Permit is to insure that any changes, restrictions, or adaptations, resulting from such an event are managed in a safe, prudent, and legal manner in order to protect the health, safety, welfare, and convenience of the traveling public and citizens of Larimer County.  For the purposes of this resolution, a special event shall be any event which has 50 or more participants or vehicles. NOTE:  The conditions included in this resolution only apply to events on county roads and rights of way. Applicants should be aware that separate permits may be required for use of municipal, state or federal roads.

 

SECTION III - General Conditions

  1. Any sponsor/organizer, hereinafter referred to as the Applicant, wishing to utilize any Larimer County road right-of-way or other County property for an event must submit, no later than sixty (60) calendar days prior to the proposed event date, a completed Special Event Permit Application. No event which utilizes any Larimer County road or other County property shall be conducted without first obtaining a Special Event Permit from the Board of County Commissioners pursuant to these requirements.

 

  1. The non-refundable application fee for a Special Event Permit on County roads shall be:

      A.        Non-Profit $100.00

      B.        For profit $250

 

      NOTE:  This fee is non-refundable regardless of the final approval or denial of the permit application

 

  1.  No waiver of this fee shall be granted. An additional fee of $500.00 shall be included if a full road closure is required for the event.

 

  1. All applications must be accompanied by an insurance certificate specifically naming Larimer County as additional insured on the Applicant's insurance policy. This certificate is to be specific to the event, with $1 million in general liability coverage. Failure to submit this certificate within a minimum of seven (7) days prior to the date of the event may prohibit final approval of the permit by the Board of County Commissioners or their designee. Applicants must also submit a copy of the participant waiver that each participant will be expected to sign before event.

 

  1. It is the Applicant's responsibility to secure appropriate jurisdictional approval for any municipal street or State highway that may be part of a proposed event route.

 

  1. Any requests for waiver of any time requirements herein must be submitted to the County Manager in writing and include justification as to why the specified requirement cannot be met.  The County Manager may grant exceptions to the time requirements only in cases where such exemption will not compromise the full review and public notification of the event in question.

 

SECTION IV - Requirements

Review and approval of any Special Event Permit will be subject to the following requirements:

 

  1. Approval of the event course by the Larimer County Engineering Department will be required.

 

  1. Provide a map of the event route(s), staging areas, spectator areas and parking. Maps must be legible and clearly indicate road names and numbers and locations of any aid stations or other off road activities.

 

  1. Approval of the local jurisdictional entities, specific to the type of event, will be required.  Entities that may be asked to review and approve the application for a permit may include, but are not limited to Fire, EMS, CDOT, County Road and Bridge, State Patrol, Building Dept, hospitals, school districts, and County Manager.

 

  1. If the event enters onto a park or open lands area owned or operated by Larimer County, applicants must also comply with the Larimer County Natural Resources Department Special Events Policy.  Events that do not enter a park or open lands area but that are conducted on roads adjacent to such areas will be referred to the Natural Resources department for comment.

 

  1. A traffic control plan that conforms to the Manual on Uniform Traffic Control Devices. (MUTCD) must be submitted by the Applicant and approved by the County Engineering Department. For any competitive/timed event or "race" the traffic control plan submitted must be prepared by a certified traffic control company or individual. All required traffic control will be done at the Applicant's expense.

 

  1. Written confirmation that sufficient and appropriate security and traffic control staffing has been provided for. It is the Applicant's responsibility to have secured such qualified staffing coverage a minimum of twenty-one (21) days prior to the event.

 

  1. Provide a written operational plan regarding the management of the event.

 

  1. Provide a parking plan for event staff, participants, and spectators. The parking plan will be subject to review and approval as with the traffic control, required in Section IV-3 above.

 

  1. Provide emergency medical and sanitary plans subject to review and approval by the Larimer County Health-Department. If food or beverages are to be served, the Applicant must also secure a temporary food service permit from the Larimer County Health Department and comply with all other applicable regulations of State and local health departments.

 

  1. Provide a security plan, if needed, including plans to manage any spectators along the route and participants, to be approved by the Larimer County Sheriff's office.

 

  1. Notification requirements.

A.  All events with full or partial road closure must provide public notification in a newspaper of local circulation stating the dates of the event and the nature of the closure no less than 7-days prior to the event, or more than 21-days prior to the event.

 

B. The Applicant must notify all affected property owners adjacent to the road closure a minimum of ten (10) days prior to the event. The road closure notice must be submitted to and approved by the County Engineering Department fourteen (14) days prior to the event. Notification may include posting of signs prior to the event or direct mailing to affected parties as determined by the County Manager or County Engineering Department. Signs must include the date and times of the event and a contact number for the organizer.  The number of signs must be adequate to insure visibility between each major intersection along the route and no less frequently than each 2 miles along the event route.

 

  1. Designation by the Applicant of a contact person, associated with the event, who has decision-making authority. This person is to be continuously available to appropriate law enforcement personnel present at the event. The name and contact information for the contact person must be supplied to all appropriate emergence response agencies affected by the event (ie, law enforcement, EMS, Fire departments, hospitals.)

 

  1. Provide a communications plan that includes any emergency communications with emergency medical or law enforcement agencies needed during the event. This plan will be subject to review and approval by the Larimer County Sheriff's Department.

 

  1. The County may require guarantees in the form of a Irrevocable Letter of Credit or, bond, or cash retainer in an amount to be determined by the County Manager to cover the cost any required for clean-up following the Special Event may be required. Any letter of credit, bond or cash retainer must be irrevocable for a period of 30 days after the completion of the event. The letter of credit, bond or cash retainer will be released by the County as soon as possible after the event, after determination that the site has been adequately cleaned-up and restored from any impacts of the event. If the County has not made a determination on retention or return of the guarantee within 30 days following the event, said guarantee will be returned to the applicant.

 

  1. Any directional or other markings on the road surface must be temporary. Markings must be removable or of a material that will degrade or dissipate within 7 days of the event. Use of permanent markings of any kind along the route of the event will result in the forfeiture of any guarantees provided by the applicant, and possible additional charges assessed against the applicant to cover the costs of removing the road markings.

 

  1. Any litter, garbage or other debris left from participants or spectators to an event must be cleaned up and removed within 24 hours of the event.  Failure to do so may result in the denial of future permits for the specific event and/or sponsor

 

  1. All signage must be removed within 24 hours of the event. Failure to do so may result in the denial of future permits for the specific event and/or sponsor

 

  1. The County may grant a vested reservation of a particular date, or day for any event that reoccurs on an annual basis.  In order to secure a vested date, the event must have a history of at least four consecutive annual occurrences.  The vested date will be held for the applicant up to 120 days prior to the event.  Should the event sponsor not apply for a permit prior to the 120 period, the vested dates will be made available to other events and the vesting right shall expire.  The County reserves the right to remove the vesting right in a particular date or day at any time.

 

In the event that two or more events qualify for vesting of a specific date or day, the event which has the longer history on the route will receive preference.

 

Should a vested event not be held due to road construction or other occurrence that makes it impossible to use the specific route during any year, the event organizer will not forfeit their vested reservation date for the following year.

 

  1. No more than two events will be permitted on any individual section of county road during any 30 day period

 

  1. Sponsors and Promoters advertising or promoting an event prior to the issuance of a permit, do so at their own risk.  Previously advertised events or events which have registered participants prior to the issuance of a permit will not receive any extra consideration.

 

  1. No event may interfere with scheduled school bus routes, including the pick up/drop off of children at bus stops, or access to school bus stops, or scheduled public transit without the express written approval of the affected agency. All events which occur within an established and county adopted municipal growth management area will be referred to the municipality for information and comment only.

 

Any or all of the above requirements may apply to a given event. The Applicant will be notified in writing or via e-mail, within fourteen (14) days of submittal of the Special Event Application, of those requirements to be complied with. The County may require a meeting between all affected and interested departments and agencies within three (3) weeks after initial submittal of the application. Any supplemental requirements shall be considered a part of these requirements. When all the specified requirements have been met and approved by the proper authorities or agencies, the Special Event Permit will be issued by the County Manager or his/her designee.

 

SECTION V - Road Closure Requirements

Full or partial road closures may be required during events where conflicts between the event participants and traffic may significantly reduce safety. Road closures will be subject to access by local traffic and emergency vehicles. The following requirements are in addition to Section IV.

  1. Any road closure request must be specified on the Special Event Permit Application.

 

  1. The Applicant must submit a detailed traffic control plan, including any alternative routes or detours, based on the current Colorado Department of Transportation’s 'S' Standards and the Manual on Uniform Traffic Control Devices (MUTCD). Installation and maintenance of the traffic control devices -required on the traffic control plan shall be at the Applicant's expense.

 

  1. The application must include the exact location, date and time the road will be closed to traffic.

 

  1. Erect and maintain, at Applicant's expense, necessary barricades, flashers, and signs, as approved by the County Engineering Department, and take all necessary precautions for public safety and convenience. These traffic control devices must be removed immediately following the close of the event.

 

  1. Requirements for additional staffing by properly authorized law enforcement personnel to manage the road restriction zone and its closure points as required in Section IV-4.

 

 SECTION  VI – Road Limitations

1.   Non-neighborhood special events shall not be routed on subdivision roads.

 

2.   Full closures are generally not allowed on any mainline County roadway, particularly in mountainous areas where detour routes are not readily available.

 

3.   Partial closures of mainline County roads are discouraged and should be limited in length and duration.

 

4.   Time of Day

 

A.  Weekdays – No road special event will be allowed between the hours 7:00 am and 8:30 am  and/or 4:30 pm and 6:00 pm except on national holidays without specific approval from the County Manager.

 

SECTION VII – Enforcement

If all the requirements of the approved Special Event Permit are not in compliance, and it appears that compliance is unlikely, the Special Event Permit will be revoked. During the event, if the Applicant fails to comply with any required conditions, the Special Event Permit may be revoked by the appropriate law enforcement personnel and the event stopped. All decisions made by the County regarding the Special Event Permit will be considered final.

 

SECTION VIII – APPEALS

Any decisions or requirement rendered under this resolution may be appealed in writing to the Board of County Commissioners, no less than 21 days prior to the event.  The Board of County Commissioners may waive or modify any requirement of this resolution after considering the written appeal of the event organizer.

 

SECTION IX – DEFINITIONS
Full road closure – defined as restricting normal vehicular use of all available traffic lanes.

Partial road closure – defined as restricting normal vehicular use of at least one travel lane.

 

SECTION IX – WAIVERS

Any provision of these regulations may be waived by action of the Board of County Commissioners.

 

This Resolution Establishing Special Event Permit Requirements for Larimer County Roads shall supersede the Resolution Establishing Special Event Permit Requirements for Larimer County Roads adopted on or about December 28th, 2004.  All changes from the previous resolution adopted on December 28th, 2004 shall be applicable to all applications for special events permits submitted after the date of adoption of this resolution;

 

Chair Johnson opened the hearing to public comment and Keith Gilmartin, Mark Dotson, Mike Glen, and Charlie Weinbeck addressed the Board in favor of the proposed regulation changes. Mr. Dotson cautioned the Board not to categorize all events the same, as some do not disrupt normal, daily traffic at the same magnitude as others.  

 

Chair Johnson closed the hearing to public comment and explained that the county was not trying to discourage events. He stated that the proposed regulations are intended to create a harmonious coexistence between road events and residents. He also explained that the Board would be flexible and willing to accommodate events.

 

Some discussion ensued relating to language contained within the resolution and minor, grammatical, corrections were made.

 

M O T I O N

 

Commissioner Gaiter moved that the Board of County Commissioners adopt the Resolution Establishing Special Event Permit Requirements for Larimer County Roads.

 

Motion carried 3-0.

 

There being no further business, the Board adjourned at 8:00 p.m.

 

 

 

 

 

__________________________________________

   STEVE JOHNSON, CHAIR

BOARD OF COMMISSIONERS

 

 

 

 

 

 

SCOTT DOYLE

CLERK AND RECORDER

 

ATTEST:

 

­­______________________________________

Melissa E. Lohry, Deputy Clerk

 

Background Image: Loveland Bike Trail by Sharon Veit. All rights reserved.