MINUTES OF THE BOARD OF COUNTY COMMISSIONERS
LAND USE HEARING
The Board of County Commissioners met at 6:30 p.m. with Matt Lafferty, Principal Planner. Chair Gaiter presided and Commissioners Johnson and Donnelly were present. Also present were: Terry Gilbert and Rebecca Smith, Planning Department; Clint Jones, Engineering Department; Doug Ryan, Health Department; Bill Ressue, County Attorney; Craig Dorn, Deputy Clerk.
Chair Gaiter opened the hearing with the Pledge of Allegiance and noted that there was only one item on the agenda.
The North Poudre Irrigation Company, through its legal counsel, requested that Commissioner Johnson recuse himself from the appeal hearing. Commissioner Johnson responded saying that he is fully capable of presiding over the appeal unbiased.
The Water Ski and Boat Club also made a request for the Board to recuse themselves from the hearing. All three Commissioners replied that they would be able to preside over the hearing without bias.
M O T I O N
Commissioner Donnelly moved that the Board of County Commissioners receive the Demmel Lake/Triplett Appeal, file #15-G0294 and Demmel Lake/Williams Appeal, file #15-G0293.
Motion carried 3-0.
1. DEMMEL LAKE/TRIPLETT APPEAL, FILE #15-G0294 AND DEMMEL LAKE/WILLIAMS APPEAL, FILE #15-G0293: Both Mr. Triplett (representing the Dykstra development) and Mr. Williams (representing Indian Ridge Estates) are appealing the Non-Conforming Use Determination (NCU 15-ZCO419), dated June 12, 2015, concerning a ski and boat club and recreational vehicle park/campground. The ski and boat club operates on Demmel Lake and surrounding properties and is owned by the North Poudre Irrigation Company.
The Dykstra development was recorded on December 13, 1978 and Indian Ridge Estates were recorded on March 28, 2001.
At the time the Ski and Boat Club was started, there were no provisions in the code that required any type of special review for the use. In November 1973, the code was changed to require a special review for new campgrounds, however, since the club was already established it would be considered a legal non-conforming use.
The Ski and Boat Club initiated the agreement with the North Poudre Irrigation Company in 1958. By 1960 the Club was fully operational and allowed to have 25 to 26 members. A membership allowed guests of members to utilize the lake when the member was present. Eventually, the number of members was formally established to remain at 25.
In looking at the history of the club’s lease, they have continuously leased the lake and surrounding land since its inception to present day. During that period, the members have been allowed to have boats and camping (tents and RVs), from April 1 through October 15 on North Poudre’s land and lake. Over the years activities have gradually become more restricted such as disallowing motorcycles or ATVs and establishing quiet hours at night.
Initially, the club only utilized the west side of the lake due to heavy vegetation along the shoreline. Over the years the brush was cleared and more areas were accessible for camping. However, the boat ramp remained on the west side and camping continued there as well.
The Community Development Department has received numerous documents establishing the use of the lake, locations, and statements from individuals who have utilized the lake since the inception of the club.
After complaints were filed with Code Compliance and a meeting was held with the Board, the issue was given to the Community Development Director to determine whether the Ski and Boat Club use qualified as a legal non-conforming use. A nonconforming use is an existing use that does not comply with the requirements of this code but did conform to all applicable regulations in effect at the time the use commenced.
A Non-Conforming Use (NCU) Review was conducted by the Director of Development Planning and a determination was made on June 12, 2015. It was determined to be a legal non-conforming use which has not expanded or intensified over the years with the following conditions:
1. The Ski Club maximum membership cannot exceed 25. If the North Poudre Irrigation Company wishes to increase the number of members, a Special Review would have to be approved by the county. This limitation does not prohibit members from having guests. However, guests can only utilize the area when accompanied by a member of the club.
2. No new roads, structures, buildings, facilities, camp sites, or other improvements shall be authorized without approval from the county.
3. Signs must be posted on the access gates which provide contact information to enable surrounding property owners the ability to inform the Irrigation Company and Ski Club of potential violations to the restrictions in place.
Additional requirements and authorizations were placed for the Recreational Vehicle Park/Campground:
1. The total number of members is limited to 25.
2. The use is only authorized from April 1 through October 15 each year.
3. All campers/RVs, boats, lawn mowers, etc. may be kept on each individual site from April 1 through October 15. However, campers/RVs are not authorized to be on the property for more than 180 days in a calendar year.
4. The number of camp sites is limited to 25 as documented on June 12, 2015.
5. No more than two RVs/campers are authorized per site.
6. No fires are allowed during a county or state fire ban and each campsite is required to keep fire prevention materials on hand.
7. No fireworks are permitted.
8. No firearms shall be discharged including air rifles, guns, BB guns, and bow and arrows.
9. Group noise and music must cease at 10:00 p.m. and fires are to be out by 11:00 p.m.
10. Music must be kept low so as not to disturb neighbors. Must comply with the Larimer County Noise Ordinance.
11. One storage unit is authorized per camp site. The maximum size authorized is 120 square feet.
12. No camping is permitted on the south end of the lake (where the outlet is located) and no camping on the north end.
13. No bulk fuel storage is permitted.
14. No jet skis, sailboats, four wheelers, or ATVs are permitted on the property.
15. Waterskiing, tugging, knee-boarding, and fishing are authorized.
16. The Wellington Fire Department and the Sheriff's Department are to have continual access to the lock boxes on the access gates.
Ressue explained this meeting is a little different from other land use
hearings in that it is limited to the original information provided. This is a
review of the decision that Mr. Gilbert had initially made. The purpose of the hearing
is to discover if there is a preponderance of evidence that Mr. Gilbert made an
error in his assessment. At the end of the hearing the board is either to
approve the decision of Mr. Gilbert with possible modifications or to rescind
Mr. Gilbert addressed the Board and explained the current files to be discussed in regards to the original determination, File #15-ZC0419. Commissioner Johnson elaborated that when a use is grandfathered the factors examined are intensity, size, and nature of use. If a grandfathered use is perpetuated the use cannot change. Mr. Gilbert noted that the club has always maintained the activities at the same level. At the request of Commissioner Johnson, Mr. Gilbert read his determination from the original approval
Commissioner Donnelly asked Mr. Gilbert to lay out the criteria used to determine whether there had been any change in the character of use. Mr. Gilbert went over what exactly constitutes a non-conforming use and explained that the following factors were used to determine it as such:
1. Whether there has been a change in the location, nature, volume, intensity, frequency, quality or degree of the use, building or structure.
2. Whether there has been a change in the activity, products or services.
3. Whether the new use, building or structure reflects the nature and purpose of the prior use or structure.
4. Whether the new use is different in kind on its effect on the neighborhood.
Gilbert then clarified that the Ski and Boat Club still engages in the same activities
as they did initially and that the nature of use in its totality is the same as
when they first established the approval.
Chair Gaiter asked Mr. Triplett to approach the Board. Mr. Triplett explained that he is here on behalf of the Dyxstra HOA which is comprised of six members. Mr. Triplett stated that what was once a boat and ski club with camping as an ancillary use is now primarily an RV park.
Mr. Triplett produced copies of statements from current residents speaking in disfavor of the club and read them aloud to the Board. He also provided aerial photos of Demmel Lake ranging from the 1970s to late in the 1980s which detailed the use along the shoreline as it relates to the shoreline north of the boat launch. Mr. Triplett then presented current aerial photos which show established RV camping north of the boat launch. Mr. Triplett proceeded to submit more photographs featuring activities as they appeared in the 1970s and 1980s in contrast with current activity. Mr. Triplett concluded there is a stark difference between the nature of activity originally and how it appears now which includes RV camping, infrastructure, and landscaping along the sites. Mr. Triplett requested that the Board overturn Mr. Gilbert's decision and that a special review process be set forth.
Commissioner Donnelly asked Mr. Triplett to clarify what his issue is with the number of people if the membership count has remained constant at 25. Mr. Triplett replied that currently there's no restriction on the total number of people (members and guests) allowed on the premises at any given moment. Commissioner Donnelly asked Mr. Triplett what change he's seen from tent camping to RV camping in the eight years he's lived there. Mr. Triplett explained that there was RV camping there when he purchased his property but the change he was alluding to was heard vicariously from other residents who have been there prior. Commissioner Donnelly then questioned Mr. Triplett if he would contend the change of character is that the use has gone from being primarily located along the eastern/southern shoreline to the western and that the tent camping has been replaced by RVs. Mr. Triplett agreed with the statement in regards to the location but added his main argument is with the nature of camping. Mr. Triplett claimed that it has gone from temporary, tent oriented to long term, high-impact, RV camping. Mr. Triplett also mentioned that several different buildings have been erected on the property over time.
Chair Gaiter asked Steven Williams to approach the Board. Mr. Williams, President of the HOA at Demmel Lake, spoke about the ownership of the land and stated that the west side used to be private property until it was deeded over to the water company in 2001. Commissioner Donnelly asked if the boat ramp is on that piece of land to which Mr. Williams responded no. Mr. Williams presented an aerial photo of the lake in 1974 and noted the high traffic areas around the boat ramp and commented that there was nothing north of it. Mr. Williams also showed photos of high traffic areas in the 1970s and observed there were no structures built there. Mr. Williams concluded that the character of the land has changed. Commissioner Donnelly asked Mr. Williams how long he has lived on the property and if he has seen a change in the camping during that time. Mr. Williams stated he has resided there for ten years and that he has seen an expansion of the camping across the lake in that time.
Chair Gaiter opened the hearing to public comment.
Michael Blehm, a lifelong resident of the area, spoke in favor of the decision. Mr. Blehm has prior knowledge of the lake dating back to 1973 and stated that the primary use was originally on the west side and still is. Commissioner Johnson asked Mr. Blehm if there had always been camping on the west to which Mr. Blehm responded yes.
Chris Hinze, a representative from Lind, Ottenhoff & Root, LLP, agreed with Mr. Gilbert's decision. She reviewed several affidavits provided by residents who had resided there in the 1970s that support Mr. Gilbert's findings. Commissioner Donnelly asked if there was a consensus on if the west side and east side had been used for camping since the founding of the club. Ms. Hinze explained that yes it was the consensus.
Rick Zier spoke in favor of Mr. Gilbert's decision.
Darlene Bengford spoke in favor of Mr. Gilbert's decision. Ms. Bengford provided photos from 1972 and 1973 showing permanent structures and high use of campers along western side of the lake. Ms. Bengford explained that the usage has fluctuated due to the membership fees ranging from $20 to $2000 and the lake being drained at times. Commissioner Johnson asked Ms. Bengford to show him on the map to where she remembers the camping taking place. Ms. Bengford proceeded to point on the map indicating there had been camping on the western, southern, and eastern shorelines.
Diana Varra spoke in favor of Mr. Gilbert's decision.
Childers spoke in favor of Mr. Gilbert's decision and stated that the photos
presented by Mr. Triplett were taken in winter so it would appear as if there
had been heavy use on the land. Mr. Childers also explained that they’ve always
had campers and permanent structures. At times they would leave their campers
out all season through November when weather was conducive.
Michael Kroneberger spoke in favor of Mr. Gilbert's decision.
Bill Johnston, president of the Ski and Boat Club, spoke in favor of Mr. Gilbert's decision. Mr. Johnston provided letters from residents in the area supporting Mr. Gilbert's decision, spoke about how they cooperate with the local Sheriff's and Fire Department, and cannot recall a single citation that was issued in regards to a noise complaint.
Karl Zeller, a resident bordering Demmel Lake, spoke in favor of Mr. Gilbert's decision and explained that, per his deed, he needs to be included as the 26th member of the club.
Chair Gaiter closed the hearing to public comment and asked Mr. Triplett to again address the Board. Mr. Triplett denied that the claim his photos being shot in winter to make it appear as if heavy use had occurred on the land was relevant and proposed to table the appeal hearing so current aerial photos could be taken. Mr. Triplett also stated that a reduction in activity can be defined as a change in nature of use. Commissioner Donnelly asked Mr. Triplett if he would conclude there had been a reduction in use. Mr. Triplett responded that there has been a reduction in some uses of the land.
Chair Gaiter asked Mr. Williams to address the Board. Mr. Williams provided photos from the 1974, 1981, and 1987 to contrast with an aerial photo from 1999 illustrating how the land had been terraformed over time. Mr. Williams also produced pictures of the area in the winter showing residual supplies left behind from club members.
Chair Gaiter stated that Mr. Zeller's request to be included in the writing as a 26th member is beyond the scope of decision for the night's meeting.
Commissioner Donnelly explained there needed to be a preponderance of evidence to prove Mr. Gilberts decision was in error. Commissioner Donnelly acknowledged there may be a difference in the nature of the camping but doesn’t feel the appellants have made a convincing enough argument that the decision was wrong and thus inclined to rule in favor of Mr. Gilbert's decision.
Commissioner Johnson stated that these cases are always difficult generally due to the fact that there is a lack of documentation clearly exhibiting the intensity of use over time. With that being said, Commissioner Johnson explained that this is one of the best documented cases he has ever presided over and believes the operative number here is the membership limit. Commissioner Johnson said the intensity of use is going to vary but camping is still camping and boating is still boating and that one can’t assume the type of camping in 1973 is going to be the sort of camping occurring today. Commissioner Johnson further stated that the affidavits presented indicate the areas and nature of use has not changed over the years and finds in favor of Mr. Gilbert’s decision.
Chair Gaiter stated he did not believe there’s been a change in nature of use, though there may have been some variation in intensity over time. Chair Gaiter explained that that one person landscaping their site doesn’t really create a change in nature and when he looked at the intent over time and the land code he could not find a preponderance of evidence showing that there had been an error in Mr. Gilbert’s decision. Chair Gaiter stated that he is inclined to agree with his fellow Commissioners and uphold Mr. Gilbert’s initial decision.
M O T I O N
Commissioner Donnelly moved that the Board of County Commissioners affirm the decision of the Planning Director, Terry Gilbert, regarding the Boating and Camping Appeal for Demmel Lake.
Motion carried 3-0.
The meeting adjourned at 9:00 p.m.
TUESDAY, NOVEMBER 3, 2015
ADMINISTRATIVE MATTERS MEETING
The Board of County Commissioners met at 9:00 a.m. with Linda Hoffman, County Manager. Chair Gaiter presided and Commissioners Johnson and Donnelly were present. Also present were: Donna Hart, Deni LaRue, and Jen Baker, Commissioners’ Office; Terry Gilbert and Pam Marcus-Bause, Development Planning; Gael Shellhaas, Interim Veteran Services Officer; Justin Calkins, Sherrif’s Department; and Craig Dorn, Deputy Clerk.
Chair Gaiter opened the meeting with the Pledge of Allegiance.
1. PUBLIC COMMENT: Stacy Lynne addressed the Board.
2. APPROVAL OF THE MINUTES FOR THE WEEK OF OCTOBER 26, 2015:
M O T I O N
Commissioner Donnelly moved that the Board of County Commissioners approve the minutes for the week of October 26, 2015, as presented.
Motion carried 3-0.
3. REVIEW OF THE SCHEDULE FOR THE WEEK OF NOVEMBER 9, 2015: Ms. Hart reviewed the upcoming schedule with the Board.
4. CONSENT AGENDA:
M O T I O N
Commissioner Johnson moved that the Board of County Commissioners approve the consent agenda as outlined below:
PETITIONS FOR ABATEMENT: The following Petitions for Abatement are denied: David Ramos & Juanita Magdaleno; Sophicoll LLC & GMA Holdings; Donald and Janet Wadlow.
11032015A001 AGREEMENT CONCERNING ROAD IMPROVEMENTS ON COUNTY ROAD 43 BETWEEN LARIMER COUNTY AND ROBIN SHUKLE-SHEA
11032015A002 GRANT AGREEMENT BETWEEN LARIMER COUNTY AND STATE OF COLORADO DOLA, LARIMER COUNTY WONDERVIEW SEWER
11032015A003 AMENDMENT NO. 1 AGREEMENT BETWEEN LARIMER COUNTY AND ROAD RUNNER GRADING LLC FOR THE NON-PAVED ROAD MAINTENANCE FOR STORM MOUNTAIN PUBLIC IMPROVEMENT DISTRICT
11032015D001 DEED AND DEDICATION FROM THE BRYAN MICHAEL COX AND KAREN ELAINE COX JOINT LIVING TRUST
11032015D002 DEED OF DEDICATION FROM ANN M. KANE
11032015D003 DEED OF DEDICATION FROM ANNE M. KANE, PERSONAL REPRESENTATIVE OF THE KEVIN BREENE ESTATE
11032015R001 RESOLUTION AMENDING COMPENSATION FOR LARIMER COUNTY APPOINTED OFFICIALS EXCLUDING THE OFFICE OF THE DISTRICT ATTORNEY, EFFECTIVE OCTOBER 20, 2015
11032015R002 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF STEGNER EXEMPTION
11032015R003 LOT CONSOLIDATION RESOLUTION APPROVING THE CONSOLIDATION OF LOTS 107 AND 109 OF CRYSTAL LAKES 8TH FILING AND EASEMENT VACATION
11032015R004 LOT CONSOLIDATION / AMENDED PLAT / EASEMENT VACATION RESOLUTION APPROVING THE AMENDED PLAT/LOT CONSOLIDATION AND EASEMENT VACATION FOR LOTS 1 AND 2 OF THE REVENCREST SUBDIVISION
11032015R005 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF LOT 6 OF THE GROUSE HOLLOW PARK AND KUNCE BOUNDARY LINE ADJUSTMENT
11032015R006 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF WOODLAND ESTATES AND AMENDED FRANDSON EXEMPTION AND EASEMENT VACATION
11032015R007 FINDINGS AND RESOLUTION APPROVING THE GOMEZ PLANNED DEVELOPMENT REZONING
11032015R008 SPECIAL REVIEW FINDINGS AND RESOLUTION APPROVING THE HILGENBERG/ SASS SPECIAL REVIEW
11032015R009 FINDINGS AND RESOLUTION APPROVING AN AMENDMENT TO THE RAWHIDE SOLAR POWER PLANT 1041 PERMIT
11032015R010 FINDINGS AND RESOLUTION APPROVING THE LANCE MINOR LAND DIVISION AND LOT SIZE APPEAL
11032015R011 LOT CONSOLIDATION RESOLUTION APPROVING THE CONSOLIDATION OF LOTS 5 AND 6 OF THE ELLISON SUBDIVISION
11032015R012 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF TRACT 1 REVIS EXEMPTION
11032015R013 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF BOXELDER HEIGHTS LOT 16
11032015R014 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF PHEASANT PATCH LOTS 1 AND 2 AND EASEMENT VACATION
11032015R015 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF THE LINDA WILD MINOR LAND DIVISION
11032015R016 FINDINGS AND RESOLUTION APPROVING THE MORENG SUBDIVISION PRELIMINARY PLAT
11032015R017 FINDINGS AND RESOLUTION APPROVING THE FIREHOUSE SELF STORAGE APPEAL
11032015R018 FINDINGS AND RESOLUTION APPROVING THE CRYSTAL LAKES 2ND FILING LOTS 51-57, 59-66 AND TRACT H LOT SIZE APPEAL
11032015R019 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF CRYSTAL LAKES 2ND FILING LOTS 51-57, 59-66 AND TRACT H AND EASEMENT VACATION
11032015R020 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT AND EASEMENT VACATION FOR LOTS 103 AND 111A IN MEADOWDALE HILLS, 2ND FILING
11032015R021 FINDINGS AND RESOLUTION APPROVING THE FOSSIL POINT NON-CONFORMING USE APPEAL
11032015R022 SPECIAL REVIEW FINDINGS AND RESOLUTION APPROVING THE COLORADO ARONIA PROJECT
MISCELLANEOUS: Recommended re-appointment of Paul Schumacher to the Berthoud Library District Board of Trustees; Recommended re-appointment of Diane Brotemarkle to the Berthoud Library District Board of Trustees; Arbitration Stipulation by and between Larimer County Board of Equalization and John J. Johnson for parcel #97104-19-020, account R0022560, lot 20, block 7, Humphrey-Lunn subdivision of block 7, Scott Sherwood Add, FTC; Department of Human Services payments for August 2015; Letter regarding option for repaying state miscalculation of county administration money by and between Director of Financial Services for the Colorado Department of Human Services and Larimer County Department of Human Services.
LIQUOR LICENSES: The following licenses were approved and/or issued: Schrader Country Store 440 – 3.2% – Fort Collins; American Legion Posthome Assn. – 3.2% – LaPorte; Branding Iron Liquor – Retail Liquor Store – LaPorte; CSU Concessions – 3.2% – Fort Collins; CSU Concessions – Hotel and Restaurant – Fort Collins.
Motion carried 3-0.
5. COMMENTS FROM COMMISSIONERS' GUESTS: Commissioner Johnson introduced Gael Shellhaas, Interim Veteran Services Officer for Larimer County. Ms. Shellhaas updated the Board on a project to distribute Veterans Day cards to county employees who have served in our nation's military. Ms. Shellhaas explained that the project, originally started by Lonnie Barret, is meant to extend a thank you to all our veterans currently working within county positions and that the Human Bean of Fort Collins has generously donated coffee gift cards for the project over the last two years. This year they have contributed one-hundred $5.00 gift cards. Ms. Shellhaas noted she will coordinate the signing of a certificate of appreciation for the Human Bean with the Board.
Commissioner Johnson then introduced his second guest Chandra Berry. Dr Berry updated the Board on her findings after attending the Oil and Gas Symposium at CSU and the effects the oil and gas industry has on her patients throughout the county. Commissioner Johnson commented on of the difficulties oil and gas companies face when dealing with local communities and governments attempting to create a harmonious partnership. Dr. Berry also spoke about fugitive emissions contribution to global warming, LDAR leak detection and repair, how the EDF plans to protect citizens from casing failures, and how the site planning of said operations is under-regulated. Commissioner Johnson also noted that throughout the early history of Colorado, mineral extraction has always occurred far outside city limits. However, now with the burgeoning population of the state we are encountering more and more conflicts between operations and citizens.
6. PLEASANT VALLEY SCHOOLHOUSE STATE HISTORICAL FUND GRANT APPLICATION SPONSORSHIP: Mr. Gilbert, Ms. Marcus-Bause, Lori Graves, and Stephanie Giard addressed the Board regarding a request from Morning Fresh Dairy for Larimer County to partner with them in a grant application to the State Historical Fund (SHF) for a Historic Structure Assessment (HSA) of the Pleasant Valley Schoolhouse. Morning Fresh would like to restore the Pleasant Valley Schoolhouse and open it to public visitation, creating an historical and educational resource for residents and visitors of Larimer County: The HSA will significantly foster the restoration process. The State Historical Fund is willing to award this grant to Morning Fresh Dairy as a for-profit organization, however, per eligibility requirements, the grant must be awarded to and Morning Fresh Dairy through an eligible entity.
Morning Fresh Dairy has proposed that Larimer County sponsor the SHF grant application solely as an entity to accept and award the grant funds. The grant funds will be deposited into a segregated account in the Larimer County Community Development Division. The Community Development Division will be responsible for disbursing the grant funds as provided in a MOU between the County and Morning Fresh Dairy. Larimer County will not be responsible for any other aspects of the project process or outcomes. Morning Fresh Dairy is asking for a $5000 grant and contributing $5000 themselves. Commissioner Donnelly stated that he thinks this is a great project and partnership.
M O T I O N
Commissioner Donnelly moved that the Board of County Commissioner accept the approval of the Pleasant Valley Schoolhouse State Historical Fund Grant.
Motion carried 3-0.
7. WORKSESSION: Ms. Hoffman updated the Board on various projects and activities.
8. COMMISSIONER ACTIVITY REPORTS: The Board reviewed their activities during the previous week.
9. LEGAL MATTERS: There were no legal matters for discussion.
There being no further business, the Board adjourned at 10:10 a.m.
LEW GAITER III
BOARD OF COMMISSIONERS
CLERK AND RECORDER
Craig Dorn, Deputy Clerk