LARIMER COUNTY PLANNING COMMISSION

Minutes of October 21, 2015

 

The Larimer County Planning Commission met in a regular session on Wednesday, October 21, 2015, at 6:30 p.m. in the Hearing Room.  Commissioners’ Christman, Cox, Dougherty, Glick, Miller and Wallace were present.  Commissioners Gerrard was absent.  Commissioner Jensen presided as Chairman.  Also present were Terry Gilbert, Community Development Division Director, Matt Lafferty, Principle Planner, Karin Madson, Planner II, and Rebecca Smith, Planning Department Intern. 

 

COMMENTS BY THE PUBLIC REGARDING THE COUNTY LAND USE CODE: 

Eric Sutherland, spoke regarding the failure of the Boxelder Stormwater Authority to apply for the Location and Extent process through Larimer County.  He felt that it was an embarrassment to the Larimer County and its citizens.  He mentioned Chapter 13 of the Larimer County Land Use Code had similar language regarding Location and Extent as the State Statute.  He stated that the land had been condemned in a manner that was inconsistent with the law, and the condemnation needed to be reversed.  He urged the Board to take notice of the comments that were being made as there was no effort to have the Location and Extent application be heard before the Board.

 

Chairman Jensen appreciated his comments and referred the information to Staff.

 

Stan Ebel, stated that he was a shareholder in the Union Ditch and Reservoir Company and was representing the shareholders thereof.  He stated that there was presently a criminal trespassing on the ditch easement, which had been ongoing for about a month.  He stated that they had sought remedy with the County Commissioners and Planning Department with only a partial resolution.  He explained that an applicant had applied for a building permit at 8000 N County Road 27 with a desire to build on the ditch easement.  That applicant had to apply for a vacation of that easement, and within that request, there was a failure to apply the standards of the Land Use Code.  The vacation was approved over an easement that Larimer County had no jurisdiction.   The Union Ditch was one of the oldest in the County, and the County did not offer Due Process to the shareholders of the ditch during the easement vacation application.  He stated that the County relied on the applicants to provide information on the ditch, and no information was sent to shareholders.  He stated that Larimer County had no jurisdiction over the ditch, the application was misrepresented, and the process was flawed as there was no administration or sense of enforcement of the Code.  He explained that the easement vacation was rescinded but the building permit could still continue.  He stated that the County Attorney informed him to go through the process of getting an injunction, which would require money and time.  He explained that if an injunction did not occur, there would have to be a re-route of the easement or a siphon under the structure.  He explained the significance of the ditch and its water and stated that what had occurred set a precedent that the ditch sovereignty wasn’t what it was.  He also mentioned that there was a box on the ditch close to the location of the structure that was the turn out for supplying water to several neighbors.  He remarked that he wanted to bring the issue to the attention of the Commission so Due Process could be restored for the ditch and its shareholders.

 

Chairman Jensen stated that the issue would be referred to Staff.

 

 

 

 

 

 

Frank Houg, was a property owner near the site mentioned by Mr. Ebel.  He pointed out that the applicants did go through processes within the Planning Department regarding the building; however, the neighborhood was not notified.  When the neighbors did find out about the placement of the structure, the county stated that it would be neighbors’ responsibility to resolve the issue and pay any legal fees.  He remarked that it was the County’s fault that the issue arose and that burden on the neighbors was unreasonable.  He felt that site plan process previously approved should be re-opened so that it could be examined under Section 8.8.4 of the Land Use Code as the applicant should have to go through the same rules that other landowners had to follow.  A fair process and solution needed to be reached.

 

Susan Hill, 7844 N County Road, owned an adjoining property to the property in question.  She stated that she supported Mr. Ebel’s comments.  She stated that she never received notification regarding the easement vacation.

 

Shannon White, lived adjacent to the subject property, stated that she was not notified about the building.  She stated that the applicants were told many times not to build on the ditch as it provided water to many individuals.  She stated that she was the ditch president and ditch rider, and she wondered why the County did not reach out to the ditch and its shareholders.  She mentioned the thousands of dollars she had spent making the ditch functional and pointed out that it was not abandoned like some people (the applicants) think it was.  The County took the word of the applicant without researching or getting information from the Union Ditch.  There should have been a Due Process.

 

Chairman Jensen stated that they took the issue serious and would look forward to a report from Staff. 

 

COMMENTS BY THE PUBLIC REGARDING OTHER RELEVANT LAND USE MATTERS NOT ON THE AGENDA:  

None.

 

APPROVAL OF THE MINUTES FOR THE SEPTEMBER 16, 2015 MEETING:   MOTION by Commissioner Cox to approve the minutes, seconded by Commissioner Christman.  This received unanimous voice approval.

 

AMENDMENTS TO THE AGENDA:

Eric Sutherland, Fort Collins resident, asked to pull the first item, Amendments to the Larimer County Land Use Code (file #15-CA0159) off of the consent agenda.  He stated he had concerns regarding the standards for statutory construction, how they would apply to the reading of the Land Use Code as it currently existed, and wondered if the amendment proposed was a taking of property rights under Colorado law.  He stated that there were many short term leases and limiting the short term rentals was a taking of property right.  He did not believe that the proposed amendment was a ‘housekeeping’ item as many people would have an issue with the amendment.

 

Commissioner Miller asked if he was implying that every home was a potential bed and breakfast and that amending the code was taking that right away from the homeowner.

 

 

 

Mr. Sutherland stated that if a property owner had expectations of economic benefit associated with short term leases and they were denied it, they could say that there was a taking that occurred.  Article 2, Section 14 and 15 of the State Statute stated that you could not take property rights without compensation. 

 

Commissioner Jensen suggested that the item be pulled off of the consent agenda.    MOTION by Commissioner Dougherty to move item #1, Amendments to the Larimer County Land Use Code, file #15-CA0159, off of the consent agenda, seconded by Commissioner Miller. 

 

ITEMS:

 

ITEM #1  AMENDMENTS TO THE LARIMER COUNTY LAND USE CODE  #15-CA0159:   Ms. Madson provided background information on the request to amend the Larimer County Land Use Code as follows:

 

1.   Modify the section 0.1 Definition for Bed & Breakfast as follows:

Bed and breakfast.   An owner-occupied, single-family dwelling where short-term lodging rooms and meals are provided to transient guests for a fee.  A guest   is an individual over 12 years of age.

 

2.   Modify the first part section 4.3.6.B. (Accommodation Uses) as follows:

Bed and breakfast. An owner or operator occupied, single-family dwelling where short-term lodging rooms and meals are provided to guests for a fee. A guest   is an individual over 12 years of age. (For example, a family consisting of a mother, father and a 12-year old child would be considered two guests.)

The balance of the use description will remain the same.

 

3.   Add the category “Institutional” to section 4.1.18.A. (C-Commercial zoning district) between items 23. and 24. as follows:

23. Retail marijuana testing facility (R)-See  section 4.3

Institutional

24. Church (SP/S)

 

4.   Modify section 4.1.18.A.2. (C-Commercial zoning district) as follows:

 

25. Community Hall (SP/S)

 

5.   Modify section 4.1.19.A.6. (I-Industrial zoning district) as follows:

  1. Automobile service station (SP/S)

 

 

 

 

 

7.   Modify the zoning table to add an “S” under the AP zoning district for the Commercial Category and the General Commercial use as follows:

Category

Use

FA

FA-1

FO

FO-1

O

E

E-1

RE

RE-1

R

RE-1

R

R-1

R-2

M

M-1

A

T

B

C

I

I-1

RFLB

AP

Commercial

General Commercial

SP

SP

SP

 

 

S

 

8.   Modify section 4.9.2.B. (Additional Setback Requirements) as follows:

Architectural features.   Architectural features such as cornices, canopies, eaves, awnings, bay windows, window wells, cantilevered walls, chimneys and mechanical equipment may extend two feet into a required setback or a setback approved by variance or administrative variance. In all cases a minimum setback of five feet for any structural component or architectural feature must be maintained from all property lines. No part of any building, including the architectural features mentioned above may extend outside a designated building envelope. No part of any building, including the architectural features mentioned above may extend into or above any easement.

 

9.   Change section 5.3.6.B.e. (Conservation Development – Residual Land Design) to read:

Residual land areas must not include road rights-of-way or parking areas, except in projects with a ratio of 20 percent developed area to 80 percent residual land, the road right-of-way, up to 60 70 feet in width, may be included in the calculation of the required residual land.

 

10.   Modify section 10.6.J. (Signs Not Requiring a Permit) as follows:

J. Home occupation and accessory rural occupation signs. Signs for home occupations and accessory rural occupations shall be limited to one sign per property and be located on the same lot as the home occupation or accessory rural occupation., 

1.   A home occupation sign shall not to exceed four square feet in area per face and six feet in height., located on the same lot as the home occupation or accessory rural occupation.

2.   A rural occupation sign shall not exceed 16 (sixteen) square feet in area per face and six feet in height.

 

11.    Modify the following Section 4.3.2. - Residential uses as follows:

A. Single-family dwelling. A structure designed, arranged or intended to be occupied by one living unit, containing a primary heat source and living facilities for sleeping, cooking, eating and sanitation. A dwelling may be leased or rented for any time period provided that the use of the property as a rental unit does not convert the property to a use contemplated by tourist or accommodation zoning, i.e. as a resort cabin, providing single night transient rentals.  A single family dwelling shall not be rented for less than 31 continuous days.

 

 

 

 

 

 

B. Duplex dwelling. A structure designed, arranged or intended to be occupied by two separate occupants or living units, containing a primary heat source and living facilities for sleeping, cooking, eating and sanitation. A dwelling may be leased or rented for any time period provided that the use of the property as a rental unit does not convert the property to a use contemplated by tourist or accommodation zoning, i.e. as a resort cabin, providing single night transient rentals. A duplex dwelling shall not be rented for less than 31 continuous days.

 

C. Dwelling, cabin. A structure that contains at least one habitable room for living, sleeping, eating, cooking and sanitation that is designed, arranged and intended to be occupied by one occupant or living unit. A dwelling may be leased or rented for any time period provided that the use of the property as a rental unit does not convert the property to a use contemplated by tourist or accommodation zoning, i.e. as a resort cabin, providing single night transient rentals. A cabin dwelling shall not be rented for less than 31 continuous days.

1. A cabin that includes a primary heat source will be considered to be a single-family dwelling.

2. Cabins are permitted in the applicable zoning districts (See subsection 4.1) only in the west half of Range 70, in Ranges 71-78 and in Townships 11 and 12, Ranges 68-78.

 

12.   Modify the following Section 0.1 definitions as follows:

Dwelling.   A building or portion thereof used for residential occupancy, including cabin, single-family, duplex and multiple-family dwellings. It does not include hotels, motels, boarding/rooming houses, resort cabins cottages, lodges, guest houses or manufactured homes that comply with the "National Manufactured Standards of 1974," 42 U.S.C. 5401 et seq., as amended. A dwelling may be leased or rented for any time period provided that the use of the property as a rental unit does not convert the property to a use contemplated by tourist or accommodation zoning, i.e. as a resort cabin, providing single night transient rentals.  A dwelling shall not be rented for less than 31 continuous days.

 

Transient.   Of a temporary or short-term nature (30 or fewer consecutive days).  and not to exceed 30 days in any calendar year.

 

Resort lodge/cabins resort cottage(s).   A building or group of buildings, under single management and ownership, containing rooms and/or dwelling units available for temporary rental to transient guests, and where the primary attraction is generally recreational features or activities.

 

13.   Modify Section 4.3.6.D. as follows:

D. Resort lodge/ cabins resort cottage(s).   A building or group of buildings, under single management and ownership, containing rooms and/or dwelling units available for temporary rental to guests where the primary attraction is generally recreational features or activities.

 

 

 

 

14.   Change the zoning table as follows:

 

Category

Use

FA

FA-1

FO

FO-1

O

E

E-1

RE

RE-1

R

RE-1

R

R-1

R-2

M

M-1

A

T

B

C

I

I-1

RFLB

AP

Accommodation

Resort Lodge/Resort Cabins Cottages

S

S

S

S

S

S

SP

 

SP

 

 

 

Ms. Madson clarified that Item 11 listed above was intended to clarify that dwellings should only be rented for 31 continuous days or more. 

 

Commissioner Glick asked about Mr. Sutherland’s concerns regarding the amendment to be a taking of rights.

 

Matt Lafferty, Community Development Department, explained that a taking was removing all property rights.  He stated that a single family dwelling was a use-by-right, which was not being taken away.  The amendments were trying to clarify that a single family dwelling was not an accommodation use for transient rentals.  The home still could be rented just not for less than 31 days.

 

Commissioner Glick stated that the argument was that current less than 30 day rentals would become a use by right.

 

Mr. Lafferty explained that currently Larimer County did not allow the rental of a dwelling for less than 30 days unless it occurred within the proper zone district or a Special Review was approved to have a resort lodge or cabin.  He mentioned that in the future there would be community outreach regarding vacation rentals to determine the community’s thoughts regarding the issue.

 

Commissioner Glick asked what would happen if someone had been renting out their home for years.  Would it become a use by right?

 

Mr. Lafferty stated that the homeowner could ask for a nonconformity determination from the Community Development Director. 

 

Terry Gilbert, Community Development Director, reiterated that a rental of 30 days or less was considered transient in multiple zoning districts.  Property owners wishing to continue those rentals could apply for approval through the Special Review process.

 

PUBLIC TESTIMONY:

Eric Sutherland, stated that a rental of property for less than 30 days had been acceptable in the past by the Land Use Code.  He stated that there needed to be harmonious construction of the entire section within the code.  He pointed out that people were currently working around the way the code currently read, and there needed to be more concrete language to contemplate the entirety of the subjects.

 

 Commissioner Miller asked him to read the section of language that he felt would harm the code.

 

Mr. Sutherland stated, “A dwelling may be leased or rented for any time period provided that the use of the property isn’t used as accommodation zoning, i.e. as a resort cabin, providing single night transient rentals.”  He felt that someone reading that statement could interpret it wrong and could believe that they could rent out their dwelling for a week and be incompliance.

 

Commissioner Dougherty did not agree with his interpretation of that sentence.

 

Mr. Sutherland stated that he was not contemplating accommodation use or tourism use.  He felt that there could be a work around and was arguing for caution.

 

Commissioner Miller asked how the amendments would affect VRBOs.

 

Mr. Lafferty stated that the department planned to do public outreach to determine the community thoughts.  From that information, a code amendment could be brought back to the commission. 

 

DISCUSSION:

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

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners approval of the Amendments to the Larimer County Land Use Code, file #15-CA0159, as listed above.

 

Commissioner Wallace seconded the Motion.

 

Commissioners’ Christman, Cox, Dougherty, Glick, Miller, Wallace and Chairman Jensen voted in favor of the Motion.

 

MOTION PASSED:  7-0

 

 

ITEM #2  AMENDMENTS TO THE LARIMER COUNTY LAND USE CODE  #15-CA0160:   Ms. Madson provided background information on the request to amend the Larimer County Land Use Code to make modifications to Section 4.3.10.H. Accessory Living Area,  Section 7.3 Special Events, and Section 4.6.3. Review Criteria for Zoning Variance requests to provide additional latitude in granting variance requests.

 

PUBLIC TESTIMONY:

None.

 

DISCUSSION:

Commissioner Wallace pointed out that some of the wording in the amendments for Section 4.6.3.A.2 were confusing.  She stated that ‘equal to or better than’ would be better.

 

Matt suggested the amendment stated, ‘the requested variance will maintain the general purpose of the standard for which the variance is sought and will be equal to or better than that is required by the standard.’

 

 

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

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners approval of the Amendments to the Larimer County Land Use Code, file #15-CA0160, as follows with the amended language to Section 4.6.3.A.2:

 

1.   Section 4.3.10.H. Accessory Living Area is the section that currently includes both attached and detached Accessory Living Area (ALA).  Attached ALA that is constructed as part of a single family residence is typically an “addition”.  This proposed amendment would delete the currently listed requirements in the Land Use Code.  The “addition” would continue to function as part of the single family residence and be limited to a single living unit (see definitions below).  Staff will continue the use of “use affidavits” that confirm the single family nature of the addition during the building permit process.

 

        Single-family dwelling.   A structure designed, arranged or intended to be occupied by one living unit, containing a primary heat source and living facilities for sleeping, cooking, eating and sanitation.

 

        Living unit.   One family, plus up to two additional individuals whose place of residence is with the family in the dwelling unit.

 

        Family.   An individual or group of people living together who are related by blood, marriage or adoption.

 

        Public site plan review would continue to be required for Accessory Living Area in a detached building and for those situations where there is not a connection between the main single family residence and the Accessory Living Area.

 

        Change Section 4.3.10.H. as follows:

 

        H. Accessory living area. Finished habitable space that is clearly accessory to the single-family dwelling and located in a single-family dwelling or in a detached building that is clearly accessory to the single-family dwelling.  Accessory living area may contain a complete living unit. 

 

1.   Accessory living area attached to or incorporated into a single-family dwelling.

 

a. The single-family character of the structure must be maintained by providing one main entrance to the structure, one set of utility meters and one address for the property;

b. An addition to a single-family dwelling to accommodate an accessory living area must be architecturally compatible with the existing structure and at least 12 feet along one wall of the accessory living area must be contiguous to a wall of the single-family dwelling with a doorway that allows passage between the single-family dwelling and the accessory living area. This door must connect to living area in the dwelling;

c. Accessory living area may be placed in the basement of a single-family dwelling;

d. The total square footage of the accessory living area must not exceed 40 percent of the total square footage of the single-family dwelling, excluding any basement or garage area, whether finished or not, or 800 square feet, whichever is less;

e. Accessory living area is to be used solely for guests of the occupants of the single-family dwelling or those providing a service on the site in exchange for their residency; and

f. The accessory living area must not be rented or leased separately from the single-family dwelling.

2. Accessory living area in a detached building .

 

H. Accessory living area. Finished habitable space that is clearly accessory to the single-family dwelling and located in a detached building or separated from the single-family dwelling such that it does not include interior passage between the accessory living area and the single family dwelling. 

 

a. Accessory living area in a detached building is subject to review and approval through the public site plan review process in section 6.2;

b. The single-family character of the property must be maintained. The entrance(s) to the accessory living area must not be visible from any road;

c. The total square footage of the accessory living area is limited to 40 percent of the square footage in the single-family dwelling, excluding any garage or basement area, whether finished or not, or 800 square feet, whichever is less;

d. One additional off-road parking space must be provided for each bedroom in the detached accessory living area;

e. Building permit applications for accessory living area are subject to all applicable impact fees, including transportation capital expansion fees applicable to a multi-family land use type as defined in section 9.5;

f. Accessory living area is to be used solely for guests of the occupants of the single-family dwelling or those providing a service on site in exchange for their residency; and

g. The accessory living area must not be rented or leased separately from the single-family dwelling.

 

2.   Section 7.0 Special Events – proposed code changes.  Special events were not intended to take the place of a zoning approval or to provide additional events in excess of those approved through a discretionary land use approval process (Special Review, Special Exception or other land use approval).  These amendments would provide clarification regarding this issue.

 

Modify Section 7.3 as follows:

 

7.3. - SPECIAL EVENT DEFINED/RESTRICTIONS

 

A. A special event shall mean the use of privately owned land, buildings or structures for a gathering where it is reasonably anticipated that attendance will exceed 300 people at any single time, at any location, for any purpose. Special events include, but are not limited to:

1. Carnivals

2. Circuses

3. Concerts

4. Revivals

5. Flea markets

6. Craft fairs or markets

7. Parades

8. Fund-raisers

9. Farmers markets or stands for sale of seasonal products when sold other than on the site where the product is grown.

10. Non-profit events

B. Special events do not include gatherings at any regularly established, permanent place of assembly such as:

1.   Place of worship,

2.   Stadium,

3.   Athletic field,

4.   Arena,

5.   Auditorium,

6.   Fairgrounds,

7.   Coliseum,

8.   Picnic or camping area,

9.   Sale or auction of agricultural lands or personal property,

10.    Polling places for special or general elections,

11.    Other similar permanently established place of assembly;

Provided that:

1.   Such place is being used for its established and normal use allowed by zoning,

2.   Attendance does not exceed the maximum seating capacity of the structure or place where the gathering is held, and

3.   The gathering complies with all other county ordinances, resolutions and regulations.

 

Special events do not include temporary uses as identified in section 4.3.911 of this code.

 

(Note: the above section was reformatted for clarity.)

 

C.  For-profit Special Events are not allowed in addition to already established and regulated events as approved through a discretionary land use approval process.

    

CD . A special event shall not exceed 30 days duration, either consecutively or cumulatively in any calendar year.

 

DE . Events that will have attendance of 300 people, or less, are permitted in all zoning districts (unless restricted above) and do not require a permit. The property owner or organizer of the event may apply for a permit, but, in all cases, they should consult with the department of health and environment and the emergency service providers (sheriff, fire department, ambulance service) in that area.

 

 

 

 

 

3.   Variance Review Criteria. After meeting with the Board of Adjustment in January the County Attorney prepared revised review criteria to address situations were an applicant wouldn’t technically meet the current criteria, but it might be appropriate to have additional latitude to grant a variance request.

 

Existing Review Criteria:

 

To approve a zoning variance application, the board of adjustment must consider the following review criteria and find that each criterion has been met or determined to be inapplicable

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

 

B.    The circumstance, condition or situation is not the result of actions or inactions by the applicant or the current owner;

 

C.    The strict interpretation and enforcement of the provisions of the code would cause an unnecessary and undue hardship;

 

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

 

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

 

F.    Granting the variance is consistent with the purpose of this code and the master plan; and

 

G. The recommendations of referral agencies have been considered.

 

Modify Section 4.6.3. to replace the existing Review Criteria with proposed new Review Criteria as follows:

 

To approve a zoning variance application , the Board of Adjustment must find that A (1), (2), or (3), has been met and that B, C, and D have each been met:

 

A. 1. Strict compliance with the standard sought to be varied will cause either (i) a peculiar and exceptional practical difficulty or, (ii) an exceptional and undue hardship on the owner by reason of:

 

 

 

 

 

an exceptional physical condition of the property such as narrowness, shallowness, topography or location of the property, or other extraordinary and exceptional situation unique to the property provided the difficulty or hardship is not caused by the act or omission of the applicant, or

 

2. The requested variance will promote or maintain the general purpose of the standard for which the variance is sought and will be equal to or better than the standard, or

 

3. The requested variance will diverge from the standard only in a nominal, inconsequential way when considered in the context of property in the vicinity of the subject land or structure.

 

B.   Granting the variance will not result in a substantial adverse impact on other properties in the vicinity of the subject land or structure or be a detriment to the public good.

 

C.   Granting the variance will not substantially impair the intent and purpose of the Land Use Code and Master Plan.

 

D. The recommendations of referral agencies have been considered.

 

 

Commissioner Miller seconded the Motion.

 

Commissioners’ Christman, Cox, Dougherty, Glick, Miller, Wallace and Chairman Jensen voted in favor of the Motion.

 

MOTION PASSED:  7-0

 

 

 

 

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

 

ADJOURNMENT:   There being no further business, the hearing adjourned at 7:52 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.

 

 

_______________________________                      ______________________________

Jeff Jensen, Chairman                                                 Mina Cox, Secretary