Minutes of September 15, 2010


The Larimer County Planning Commission met in a regular session on Wednesday, September, 2010, at 6:30 p.m. in the Hearing Room.  Commissioners’ Cox, Dougherty, Hess, Miller, Wallace, and Weitkunat were present.  Commissioner Hart presided as Chairman.  Commissioners Glick and Wendt were absent.  Also present were Matt Lafferty, Principle Planner, Russ Legg, Chief Planner, Eric Tracy, Engineering Department, Doug Ryan, Health Department and Jill Wilson, Planning Technician and Recording Secretary. 


Mr. Lafferty accompanied Commissioners Cox, Dougherty, Hart, Miller, Wallace, Weitkunat on a site visit to the Otte Exemption.  Commissioners Hess and Miller visited the sites independently.








APPROVAL OF THE MINUTES FOR THE AUGUST 18, 2010 MEETINGS:   MOTION by Commissioner Cox to approve the minutes, seconded by Commissioner Dougherty.  This received unanimous voice approval.






Beckers Stable Special Review, file #10-Z1797, was removed from the agenda at the request of the applicant.



Flower Power Botanicals Special Review, file #10-Z1798, and Premier Wellness Special Review, file #10-Z1807, were table to the October 20, 2010 Planning Commission hearing.




ITEM #1  OTTE EXEMPTION #10-S2969:  Mr. Legg provided background information on the request to divide 34.34 acres into two single family residential lots as an exemption plat located approximately ¾ miles north of the intersection of County Road 44H and County Road 27 on the east side of County Road 27 (Stove Prairie Road).  The request also includes an appeal to Section 8.14.2.B of the Larimer County Land Use Code to allow buildings in areas of steep slopes.  He explained that the applicants applied for an appeal to allow the subdivision process rather than a conservation development as required, which was approved.  During the subdivision review process the Division of Water Resources indicated that they would not approve adding another residential use on to the existing well because the original permit restricted it to one single family residence, and a water augmentation plan would be required for the subdivision.  The Division of Water Resources did state that if the proposed lot was created through an exemption then the State could issue a new well permit for the new lot.  As a result, an appeal to use the exemption process was brought before the Board of County


Commissioners, and the commissioners recommended that the proposal move forward to the Planning Commission.  Mr. Legg stated that the Planning Department was recommending approval of the exemption due to the limited building sites on the property and the willingness of the applicant to place a conservation easement on the property prohibiting any further division of the land.  He explained that the property was previously divided through a Minor Residential Development, which was an exemption process, and would have allowed another land division and a well. 


Eric Tracy, Engineering Department, commented that during review it was found that there were steep slopes mapped on the parcel, which caused concerns regarding rock fall hazards and access to the property.  Based on site visits, the Engineering Department believed that access was feasible to the proposed building site and the county standards could be met. 


Chairman Hart ruled that whom the building site was for was irrelevant to the decision.


Gary Otte, 560 Stove Prairie Road, explained that the previous owner had intentions of building to the south and created a road to the site.  He, however, was approved to build north. 


Commissioner Hess asked if he was willing to put a conservation easement on the property?


Mr. Otte replied yes.  He stated that there were only two locations to build on the property, and he already built on one of those locations.


Commissioner Cox stated that there was an option to purchase land in order to have a 35-acre tract of land.  She wondered if he had pursued that option.


Mr. Otte replied no, but he could.



Dr. Marty Schriefer, 305 Stove Prairie Road, presented a petition of opposition signed by the neighbors.  He stated that it was not a neighbor issue, it was an issue of pushing the boundaries of the Land Use Code.  He stated that a purpose of the code under Section 2.3.1.b was to “maintain and enhance property values by stabilizing expectations and fostering predictability of land development.”  He felt that the proposal being considered was different from those expectations.  The Division of Water Resources stated that they would not allow another well through a subdivision process but a subdivision was occurring even though it was being called an exemption.  In the letter from the Division of Water Resources it stated that “the proposed water supply would cause a material injury to the decreed water rights and is inadequate”.  He noted that Colorado Revised State Statue 29-20-301 stated that “Due to the broad regional impact that securing a adequate water supply to serve the proposed land development could have it was imperative that the local government be provided with reliable information concerning the adequacy of the proposed developments water supply.  The enactment of the statues help ensure the adequacy of water and was a matter of statewide concern and necessary for the preservation of public health, safety, and welfare of the environment of Colorado.”  Under C.R.S. 29-20-304 it was a requirement for the applicant to have a report prepared by a registered professional engineer on water supply or a water supply expert.  The report required an estimate of the amount of water yield projected from the proposed water supply under various water hydrologic conditions.  He remarked that all of the neighbors had well supply


issues.  He noted that the county did not have information on the wells in the area but felt that the information could be very influential on the decision as it would tell the likelihood of water on the proposed parcel as well as the impact on other properties.  He reiterated that water was a major concern as there was no evidence presented by the applicant that there would not be an adverse effect on senior wells/neighbors’ wells.  There was also a concern that increasing the density of homes in the area would negatively impact property values.  Also, the land was steep and issues regarding runoff on the road and neighboring properties were of concern. 


Commissioner Wallace inquired about how large the surround properties were.


Mr. Schriefer replied his lot was 42 acres.  Others were 30 acres, more than 30 acres, and less than 30 acres.


Tony Smith, 350 Stove Prairie Road, reiterated that it was not a personal issue.  It was an issue of subdividing the property.  He stated that his property had well issues, and the well dried up last year.  He was disappointed that the exemption process was allowed to be pursued. 


Commissioner Dougherty asked how big his property was.


Mr. Smith replied 4.1 acres. 


Dan Koturov, stated that he lived on property that was a part of the Velk M.R.D.  He spoke to the conditions of the property, the visual impacts created by the applicants, business uses on the site, and noise impacts.  He stated that the proposed lot would be visible and audible from his home.  He stated that surrounding properties along with his own had problems with their wells.  The exemption process was just a loophole for the applicants.


Mr. Otte stated that a certified well driller had been to his site and stated that there was adequate water.  He noted that he heard noise from the neighboring properties also.  He stated that the road and driveway were already on the site going to the south when he bought the property and that was where he was told he could build.  However, he asked and was granted an exemption to build to the north.  The proposed site was already approved for a home seven years ago.


Mr. Legg explained that the State of Colorado was concerned based on their June 15, 2010 letter that the cumulative effect of all wells in a subdivision and the presumption that there would not be material injury to vested water rights of others.  He explained that wells that were on 35 acres were exempt from review from the State of Colorado.  He also noted that if a subdivision was being pursued there was a presumption that there would be material damage to the water rights, not the water supply.  Therefore, a water augmentation plan was required. 


Doug Ryan, Health Department, stated that there had been no evidence provided that there would be impact to neighbors wells because the applicant was asking for an exemption which allowed the State to issue a well permit without an analysis of surrounding water rights and availability.  Therefore, under an exemption, the State would issue a well permit much like they would for a 35 acre lot.  The Health Department believed that the State’s provisions for protecting water rights, for doing subdivision analysis, and for having augmentation plans was very important for downstream water users. 


Commissioner Wallace wondered how a smaller parcel, such as the 4.1 acre parcel, obtained a well.  She asked what would occur if one of the 30 acre parcels wanted to subdivide.


Mr. Ryan stated that each new property would have to go through the water augmentation process.


Commissioner Wallace asked what would occur if a larger parcel, such as a 200 acre parcel, applied to subdivide.


Mr. Ryan explained that if the parcel was subdivided into lots of 35 acres or greater then they would be entitled to exempt well permits on those lots.  If the lots were smaller than 35 acres they would have to go through the water augmentation process.


Commissioner Hess asked if the well could be dug at anytime even if the land was subdivided before 1972.


Mr. Ryan explained that if the land was legally subdivided and created prior to 1972 an applicant would have to provide demonstration of that when they applied for a well permit.  If it was legally subdivided after 1972 two scenarios could occur.  The first was that it was created through a subdivision under a water augmentation plan.  The second was that an exemption was approved allowing the issuance of a well permit from the Division of Water Resources.


Mr. Legg explained that the smaller 4.1 acre parcel in the area was created through the Minor Residential Development (M.R.D.) process, which was an exemption process.  The subject parcel was also created through a M.R.D.  The exemption process was removed in 2000 when the Land Use Code was adopted.


Commissioner Wallace asked if the vacant parcel, created through the Estrada M.R.D., could obtain a well permit since it was created through an exemption process.


Matt Lafferty, Planning Department, replied yes. 


Commissioner Cox asked why the current situation would not set precedence for the surrounding properties in the area.


Mr. Legg stated that the major reason was the topography of the land and the conservation easement that was offered by the applicant. 


Commissioner Miller asked about well performance in different areas of the county. 


Mr. Ryan explained that different areas had wells that produced differently due to the geology.  In the mountain areas the geology was different and water supply was unknown from site to site.


Commissioner Dougherty asked if there had been a study on whether the wells in the area were drawing on the same fractures, to see if a new well would definitely impact the water availability of the existing wells.



Mr. Ryan replied no. 



Commissioner Wallace stated that the Land Use Code was put in place and exemptions were not a part of it.  Since a well permit could not be issued for parcels less than 35 acres the exemption process was allowing it to happen.  There were two exemptions in the area already but other properties did not have the ability to obtain an exemption, and the exemption process was not intended to apply with the adopted Land Use Code.


Commissioner Miller stated that the applicant was willing to restrict the land with the conservation easement so he was not opposed to allowing the exemption.


Commissioner Dougherty examined the reasons for opposition provided by the neighbors, and he did not believe there was enough evidence to believe that there would be a problem with the water supply.  He also did not believe that it would lower property values.  He also remarked that the other two reasons for the opposition in the letter were not applicable to whether or not the property met the land use code.   He stated that the proposed lots would be larger than two previous lots created through the exemption process.  He was not opposed to the process.


Commissioner Hess agreed with Commissioners Dougherty and Miller.  She did not believe that adding one house would create water problems, and she liked the size of the lots being proposed.  She also liked that a conservation easement would be placed on the land.


Commissioner Weitkunat stated that the proposed property was 6/10th of an acre short of 35 acres.  If it was 35 acres it would be allowed two wells.  The site only allowed two building sites, one already built upon.  She felt that codes and processes were available and being followed.  The other option for the applicant was to purchase land to make his 35 acres and then he would be allowed a well permit. 


Commissioner Cox stated that allowing the exemption would place a conservation easement on the site; however, there were not many possible building sites on the property.  Nevertheless, she did not believe a precedence would be set due to the history of the site and conservation easement being placed on the property.  She stated that the applicant had the option of buying more land to create a 35 acre piece, and the proposed house would be built in the same proposed location.  She remarked that other surrounding properties had the ability to develop, and she did not believe that the subject property should be restricted. 


Chairman Hart stated that it complied with the zoning and did not believe that there was any development that could occur on the site.  He was very disturbed by the use of the exemption process as it did not fit in Larimer County.  What was being requested was not unreasonable but the use of the exemption process made him very uncomfortable.


Commissioner Dougherty moved that the Planning Commission adopt the following Resolution:


BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Otte Exemption, file #10-S2969, for the property described on “Exhibit A” to the minutes, be approved with the following conditions:



1.      The Final Otte Exemption Plat shall be consistent with the State requirements for exemption plats, and with the information contained in the Otte Exemption File #10-S2969, except as modified by the conditions of approval or agreement of the County and applicant.  The applicant shall be subject to all other verbal or written representations and commitments of record for the Otte Exemption.


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 Exemption, the applicant agrees that in addition to all other remedies available to County, County may withhold building permits, issue a written notice to applicant to appear and show cause why the Exemption approval should not be revoked, and/or bring a court action for enforcement of the terms of the Exemption.  All remedies are cumulative and the County’s election to use one shall not preclude use of another.  In the event County must retain legal counsel and/or pursue a court action to enforce the terms of this Exemption approval, applicant agrees to pay all expenses incurred by County including, but not limited to, reasonable attorney’s fees.  County may conduct periodic inspections to the property and reviews of the status of the Exemption as appropriate to monitor and enforce the terms of the Exemption 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 Exemption approval.


4.   The owner shall provide to the County a copy of an approved well permit from the State Division of Water Resources for Lot 2 of the Otte Exemption, before County will accept a building permit application. A approved copy of the conservation easement or covenant on the property shall be recorded with the Final plat.


5.   The owner is responsible for obtaining all required building permits for Lot 2 of the Otte Exemption.  All applicable fees, including permit fees and Transportation Capital Expansion Fees, shall apply to this use.


6.   The June 30,2010 letter from the Colorado Geologic Survey shall be addressed by the applicant . Specifically the applicant should provide (from a professional qualified in the identification, analysis and mitigation of geologic hazards) either an explanation for why the proposed building site is not considered to be in a potential rock fall hazard area, or, a rock fall hazard analysis for the proposed building site, as described in the Colorado Geologic Survey letter.  The State will need to review the plan and provide approval.


7.   The following fees shall be collected at building permit issuance for new single family dwellings:  Thompson School District fee, Larimer County fees for County and Regional Transportation Capital Expansion and the Larimer County Regional Park Fees in lieu of dedication..  The fee amount that is current at the time of building permit application shall apply. 


8.   All habitable structures will require an engineered foundation system. Such engineered foundation system designs shall be based upon a site specific soils investigation.  The lowest habitable floor level (basement) shall not be less than 3 feet from the seasonal high water table.  Mechanical methods proposed to reduce the ground water level, unless it is a response after construction, must be proposed on a development wide basis.


9.   Passive radon mitigation measures shall be included in construction of residential structures on these lots.  The results of a radon detection test conducted in new dwellings once the structure is enclosed but prior to issuance of a certificate of occupancy shall be submitted to the Building Department.  As an alternative, a builder may present a prepaid receipt from a radon tester which specifies that a test will be done within 30 days.  A permanent certificate of occupancy can be issued when the prepaid receipt is submitted.


10. The applicant shall apply for a development construction permit with the County

      Engineering Department for approval of the shared access onto County Road #27.  The shared access shall receive a road name subject to the requirements in Section 5.11 of the Land Use Code.


Commissioner Weitkunat seconded the Motion.


Commissioner Wallace and Chairman Hart voted against the Motion.


Commissioners' Cox, Dougherty, Hess, Miller, and Weitkunat voted in favor of the Motion.




Commissioner Weitkunat moved that the Planning Commission adopt the following Resolution:


BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Otte Exemption, file #10-S2969, appeal to Section 8.14.2.B of the Larimer County Land Use Code to allow buildings in areas of steep slopes be approved.


Commissioner Dougherty seconded the Motion.


Commissioner Wallace voted against the Motion.


Commissioners' Cox, Dougherty, Hess, Miller, Weitkunat, and Chairman Hart voted in favor of the Motion.









REPORT FROM STAFF:  Mr. Lafferty reminded the Commission of their upcoming meetings. 


ADJOURNMENT:   There being no further business, the hearing adjourned at 8:02 p.m.



These minutes constitute the Resolution of the Larimer County Planning Commission for the recommendations contained herein which are hereby certified to the Larimer County Board of Commissioners.





_______________________________                      ______________________________

Gerald Hart, Chairman                                               Jana Hess, Secretary