MESA COUNTY BOARD OF ADJUSTMENT FEBRUARY 26, 2004, PUBLIC HEARING MINUTES

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1 MESA COUNTY BOARD OF ADJUSTMENT FEBRUARY 26, 2004, PUBLIC HEARING MINUTES Chairman David Reinertsen called a scheduled hearing of the Mesa County Board of Adjustment to order at 9:00 a.m. Chairman Reinertsen led the Pledge of Allegiance. The hearing was held in the Public Hearing Room, Mesa County Courthouse, 544 Rood Avenue, Grand Junction, Colorado. In attendance, representing the Mesa County Board of Adjustment, were: Patti Chamberlain, Tom Kirkpatrick, Marc Maurer, Greg Motz, and David Reinertsen. In attendance, representing the Mesa County Department of Planning and Development, were: Jim Hinderaker and Steve Kollar. Kristy Pauley was present to record the minutes. There were four citizens present throughout the hearing. APPROVAL OF MINUTES Chairman Reinertsen presented the 1/22/04 minutes for approval. MOTION: Mr. Kirkpatrick moved to accept the minutes as written. Mr. Maurer seconded the motion. A vote was called and approved, 5-0. AMENDMENTS TO THE AGENDA None. HEARING ITEM AV1 SMITH ADMINISTRATIVE ADJUSTMENT AND VARIANCE Property Owners: Paul & Christine Smith Location: 4567 S ½ Road, DeBeque This is a request to vary the side yard setback on the west side from 50 feet to 6 feet for an existing barn. Chairman Reinertsen recused himself from the hearing at this time, due to a conflict of interest with the hearing item. The Chair was given to Vice-Chair Patti Chamberlain. Staff s Presentation: Steve Kollar, Planner I, advised the Board of past events with this application. It was heard on 3/27/03. The Board decided on a continuance to wait for the outcome of a pending court hearing. There was information in the packets

2 regarding this hearing. Mr. Kollar entered into the record the Mesa County Land Development Code, project report and project file AV1, Mesa County Master Plan, and all previous hearing information and exhibits. Mr. Kollar presented the PowerPoint presentation regarding this item. Area land uses and zoning were presented. The variance request was explained. The code violation was still in force. The barn permit was issued 11/3/ setbacks apply on side and rear yard setbacks. The location map was shown. Applicant site plan #1 was shown, depicting the entire parcel. Applicant site plan #2 was shown, depicting the barn and the area in question. An aerial photo and color photos of the barn were presented. Mr. Kollar reviewed approval criteria Section (A-F). Staff s Recommendation: Denial. The application does not comply with Section (A-F). Questions: Mr. Maurer asked staff about the judgment rendered through the courts. Mr. Kollar said a document was created for the Smiths. Access, easements and irrigation were discussed. The court did not touch on the placement of the barn. That appeared to be left to the appropriate Board. Mr. Kollar said the document indicated no horse activities were allowed in the easement. Mr. Hinderaker indicated the location of this document in the packet. There was no actual court document received by staff regarding this matter. Petitioner s Presentation: Christine Smith, 4567 S ½ Road, DeBeque. Mrs. Smith presented petitioner s exhibits for the Board s review. A packet was presented and labeled Petitioner s Exhibit A, 2/26/04. Exhibit B was attorney Patricia Cookson s letter written after the trial. The court did not render judgment regarding the placement of the barn. Ms. Cookson s letter was reviewed by Mrs. Smith. Mrs. Smith indicated they were not able to afford an attorney during this court action. Ms. Cookson helped them off and on with advice. They have filed bankruptcy. Mrs. Smith stated her husband has a heart condition and was in the emergency room prior to the trial and she attended alone. She had an emergency report with her. The Board indicated they did not need to see this report. Mrs. Smith indicated the Nolans had filed a restraining order against them. The magistrate asked the Smiths if they wanted a restraining order as well. The Smiths felt one order would suffice. The Nolans filed the district court lawsuit in 2/00. The court then required negotiations to try to settle the dispute. Exhibit C, 2/26/04, Client Ledger from James Giese, PC, was presented. This ledger showed events of the arbitration. On 5/9/03 the Smiths attorney tried to resolve issues with the Nolan s attorney. Nothing ever happened. Mr. Nolan had stated at the previous hearing that he had tried to resolve this and the Smiths were not willing. The Smiths have paid over $15,000 to protect themselves. 2

3 J&L Construction worked from a survey that was already done when the Smiths purchased the property. Initial improvement location certificate, Exhibit D, 2/26/04, was presented. This document shows the barn in relation to the property line. Access requested by the McClaskeys was for field approach to the back pastures. Two access easement deeds were drawn up by Walt Eldridge, a licensed surveyor. These did not specify the intent of the parties. A map survey was presented and was labeled Exhibit E, 2/26/04. Mrs. Smith referred to the last page of Exhibit E, and read from this document. The Smiths gave one, 3-year old black philly to Mr. McClaskey. The bill of sale, Exhibit F, 2/26/04, was entered into the record. The horse was in trade for one half the cost of the boundary survey, the common boundary and the boundary line adjustment. After the loan was secured and barn was constructed, Mr. Nolan purchased his property and went to the planning department and complained. The Smiths worked with Christie Barton of the Planning Department for almost two years. They then went to Small Claims Court. The court record was labeled Exhibit G, 2/26/04. The Smiths indicated they relied on professionals for the work performed. Mrs. Smith referred to the minutes approved from the previous hearing in March, Exhibit H, 2/26/04, Board of Adjustment minutes from 3/27/03. The building permit for the barn was labeled Exhibit I, 2/26/04. Exhibit J, 2/26/04, packet of color photos, #1-6, were presented on the document camera. Mrs. Smith referred again to the minutes from 3/27/03 and Mr. Maurer s opposition to animal activities in the easement. Mrs. Smith referred to the Land Development Code regarding livestock activity. The Nolans knew there was a horse ranch adjacent when they purchased their property. There were 26 horses on the property at the time. Mrs. Smith reviewed the chain of events that transpired. The Smiths lost the civil issue. Mr. Nolan s letter dated 2/13/03, labeled Exhibit K, 2/26/04, may have been referred to as an earlier exhibit in the first hearing. Letter to Christie Barton from Mr. Nolan, dated 9/11/03, was labeled as Exhibit L, 2/26/04. Questions: Mr. Maurer clarified the information that was presented and noted the judge ruled in the Smiths favor that the boundary adjustment should have happened. The Smiths were given back funds for part of the land (7,000 sq. ft.) that should have been the adjustment. Mr. Motz was unsure of the outcome of the civil case that was the original delay for the Board s decision. Mr. Motz asked for clarification on decisions rendered for use or nonuse of the easement. Mrs. Smith said she tried to bring out the issue of the boundary line adjustment. The judge said it was to only be an easement for ingress/egress. No 3

4 horse activities should be conducted on the easement. There were no other restrictions placed on any other area of the barn. Mr. Motz clarified the barn was built in 1998 but it was not until 2001 that it was discovered the property line adjustment never took place and the Smiths were in conflict with setbacks. Mrs. Smith said Mr. McClaskey owned the property the entire time. It became clear when Mr. Nolan went to planning that there was a problem. The Smiths thought the boundary line adjustment had taken place during that time. Mr. Motz questioned why the Smiths stated they could only tear down the barn in its entirety and not just a portion. Mr. Smith said it was on a concrete pad, with poles cemented in the pad. It would cost about $30,000 to take it down. Mr. Smith summarized. Professionals were hired, who were bonded and licensed. Adequate survey data was provided to contractors. Once they discovered the error, they did everything possible to rectify the problem. This is the last step to take to solve the problem with the County. Mr. Smith commented from the day the Nolans moved in they had disagreements. The Nolans requested from planning that the barn be torn down because it was not in accordance with the Code. The Nolans got a restraining order on the Smiths. Then they filed a district court suit against the Smiths. The Smiths filed bankruptcy. The Nolans contested the bankruptcy. Mr. Smith asked the Board to consider all the facts. The easement ends at the west property line. There was no logical reason that the Nolans would be discomforted by the fact that the barn is where it is. Mr. Kirkpatrick asked if there was a door on the east end similar to the west end. The Smiths responded there was. Public Comments: Shawna Nolan, 4555 S ½ Road, DeBeque. The judgment from the court, labeled Opposition Exhibit 1, 2/26/04, was read by Mrs. Nolan. Louis Nolan, 4555 S ½ Road. The burden of proof was on the Nolans. They proved to the judge what was happening. Mr. Nolan didn t want to cause problems. He owns two businesses. The Nolans are contesting the bankruptcy. It is the only thing they can do. The Nolans signed a paper during mediation saying they wouldn t report anything that happened during that time at any other place. Mr. Nolan said the Smiths said it would cost $55-60,000 to move the barn. The Smiths said they bring money in to the County, but then they filed bankruptcy because they said they had no money. The barn affects the driveway because of the water shed. The Nolans proved in district court that the Smiths have done things to harm them. Mr. Nolan presented a letter from the Smiths to another neighbor, labeled Opposition Exhibit 2, dated 2/10/02. Mrs. Nolan said she thought some of the neighbors had called planning to complain about this issue as well. Mrs. Nolan read this letter. Mr. Nolan said this letter showed the Smiths are hostile. They feel the Smiths should be held accountable. They have no other alternative. 4

5 Questions: Mr. Motz said the irrigation issues have nothing to do with this Board. Mr. Nolan acknowledged that fact. They just wanted to present the other issues. The Nolans reviewed some of the other issues. Mr. Motz questioned the current hardships the Nolans faced now that there was a decision from the court on the easement. Mr. Nolan said the Smiths have parked there and have their ferrier do work there since the judgment was rendered. The Nolans would have to go back to court and prove everything again. They feel the barn should be moved, then there wouldn t be an issue of being on the property line. Mr. Motz asked the Nolans if they would provide a property line adjustment at this time. Mr. Nolan said it was offered through the bankruptcy attorney, but the Smiths wanted to offer something less than what was proposed. The Nolans have invested a lot in this, and owe $37,000 in attorney s fees. The only way Mr. Nolan would agree to a boundary line adjustment is if the Smiths pay the full amount to the attorney for the fees. They have been backed into a corner. Vice Chair Chamberlain asked the Nolans if they were aware the barn was nonconforming at the time of the purchase of their property. Mr. Nolan said he didn t know that at the time. They found out when they were building their home. Petitioner s Rebuttal: Mrs. Smith referred to the past Board minutes and Mr. Nolan s awareness of the barn being 6-10 feet off the property line at the time of his closing. Mrs. Smith referred to wastewater flooding, and the ferrier s presence on the easement. Vice Chair Chamberlain closed the public portion of the hearing at this time. Discussion: Mr. Maurer said since the Board is not a civil, judicial body, they only need to determine a setback from 50 to 6. Staff recommended denial because the barn doesn t meet County Code criteria. He has tried to look at hardships. The Smiths operated under reliance of professionals to locate the barn and relieve the setback adjustment. Mr. McClaskey only gave an ingress/egress easement. The building permit was issued and there must have been a site plan review. Mr. Hinderaker said the site plan and planning clearance was issued based on 50 setbacks. The applicant must provide evidence of the boundary line and that burden is on the applicant. Mr. Kirkpatrick said the property line location was done erroneously. Mr. Maurer noted there was a judicial order for no animal operations in the easement. The Smiths have apparently moved that to the side area. The Nolans seem to have access in and out with that easement. The Smiths knew the boundary line adjustment had not been performed. Even though there were other circumstances with the neighbors, and the Smiths operated with professionals, they are left only with a variance at this time. Maybe the Smiths placed no burdens on themselves with the location of barn. Mr. 5

6 Maurer could not weigh what level of character there is in this decision. He could only rely on the facts. The barn was built, approved and cleared through the building department based on information provided. The Smiths tried to relieve the problem through a boundary line adjustment, but that caved in. He didn t see any reason not to grant them the variance. He saw no other mitigating circumstances. Mr. Kirkpatrick agreed with Mr. Maurer. He felt they needed stipulations, such as a fence, so there is a corner post that they have to stay behind and the Smiths couldn t use the west entrance except in an emergency or for ventilation. He said they should put a fence on the property line, established with a survey so that it s done properly. Mr. Maurer hesitated to put a stipulation because if work not done correctly, we might engage in another dispute. Mr. Kirkpatrick said it should be done by a registered surveyor. Mr. Motz was in agreement overall. He thought the Smiths relied on the former owner to perform the boundary line adjustment and felt it was taken care of. He wondered why two years passed before it was brought to their attention. They did rely on professionals for setting the location of the barn. He was unsure of the Nolans knowledge at the time they bought their property whether the barn was in the setback. He concurred with Mr. Maurer that the only decision is the setback decision. The Board has nothing to do with the issues or problems that have been going on. Mr. Motz was more prone to place restrictions on the use on the west side of the barn more so than just in the easement. If they leave the 6 setback, they should restrict any use along the back portion of the property by the barn, so that potential uses wouldn t interfere or conflict with the easement. He suggested taking out the gate along the property line, taking out the west door of the barn, and removing the wash rack. He questioned how to monitor these restrictions. They may need to have periodic surprise inspections to guarantee the nonuse of the area stays in place. Mr. Maurer asked staff if a condition could be the petitioner erect a 6 tall opaque material fence from the edge of the gravel drive along the property line south to the edge of the stallion pen. It would act as a buffer. An inspection could be done by the County in 6 months, and if the fence were not in place and in accordance with the conditions, then the variance would be revoked, and immediate removal of the barn would be mandatory. Mr. Motz agreed that highly restrictive uses along that side of the property, and a 6 barrier placed would protect the Nolans, to some extent, for their ability to use the driveway and know that uses in the easement could not take place. Without restrictions for use and a barrier placed, he would look at the barn being moved or enough removed to get to the 50 setback. Mr. Hinderaker said they wouldn t require a building permit or planning clearance for a barrier. Mr. Maurer asked if there would be any problem with the fence stipulation. Mr. Hinderaker did say that the Code does allow for use on their property, but they could place a fence there. Mr. Maurer suggested the fence align from the NW corner to the 6

7 SW corner of the barn. The Smiths would also have to move the steel feed bin out of the setback. Vice Chair Chamberlain also recommended removing the gate on the west side. Mr. Maurer said he didn t feel they could restrict the use. Discussion continued on possible restrictions and stipulations. The fence could possibly go south to the end of the stallion pen as well. Mr. Hinderaker indicated that would be a reasonable request of staff. Mr. Hinderaker instructed the Board they need to make sure criteria are met or discussed within the motion. Mr. Maurer reviewed the Code, Section (A-F) in preparation for the motion. Mr. Motz asked assuming the motion passes, and a fence was erected, what would happen if the Smiths sell the property in the future? Would the variance pass on or does an additional recording of such condition take place to ensure the barrier remains? Mr. Hinderaker said it would go with the land but the Board could include that within the motion. Mr. Motz wanted to see that condition included in the motion. MOTION: Mr. Maurer moved item AV1 Smith Administrative Adjustment and Variance be approved for a side yard setback from 50 to 6 with a condition that a buffer element of a 6 tall opaque fence of any fence material, with no openings or gate, as approved by the planning department per the definition of the 2000 Mesa County Land Development Code, be erected on the property line from the northwest corner of the hay shed as indicated by the petitioner s hand drawn site plan, south to the southwest corner of the stallion pen, approximately 86 ½ feet of fence line. The silo on the northwest corner of the barn must be removed and relocated at least 50 from the property line to meet the AFT setbacks. Location of the fence and fence structure would remain on the property line regardless of who owns the property as long as the condition for the variance remains, i.e. the location of the barn. Hardship has been placed on the petitioner in that they relied on professional services to locate with a survey the initial location of the barn and that it was indicated and shown in the documents that they met the AFT 50 setback. Only later was it realized this was not the case and the previous owner forced them into a condition of an ingress/egress easement and not a boundary line adjustment. Mr. Hinderaker asked if the fence could contain a gate. Mr. Maurer said there could be no gate. As a term of condition, the fence must be erected within a 6 month period, or there would be revocation of the variance and immediate removal of the barn or portion of the barn not in compliance with the setbacks. Mr. Kirkpatrick seconded the motion. A vote was called and approved, 4-0. Mr. Smith asked if they could put a gate in the fence. The Board indicated they could not. 7

8 At this time, Chairman Reinertsen rejoined the hearing. APPROVAL OF RESOLUTION AV2 MARTINEZ GARAGE Approved, 5-0. OTHER BUSINESS Mr. Hinderaker announced a lunch/workshop, 3/1/04, 11:30-1:00 pm. He noted they would discuss the bylaws, parliamentary procedure, and any issues that the Board has. The Board may be hearing density variances. They will have a staff attorney at the workshop as well. ELECTION OF OFFICERS Mr. Motz moved to retain the current officers. Mr. Kirkpatrick seconded the motion. A vote was called and approved, 5-0. Chair David Reinertsen Vice Chair Patti Chamberlain Secretary Marc Maurer The hearing was adjourned at 11:30 a.m. Respectfully Submitted, Marc Maurer, Secretary 8