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Home My WebLink About4.0 Resolution BOA 2005-02.pdf1111111111111111111.,.111111111111111111111111111111111 699588 06/06/2006 03:08P B1808 P486 M RLSDORF 1 of 5 R 0.00 D 0.00 GARFIELD COUNTY CO RESOLUTION NO. 'B 0 £4 d._005 -0 }-.... Series of 2005 A RESOLUTION OF THE BOARD OF ADJUSTMENT OF GARFIELD COUNTY, COLORADO, DEALING WITH THE BERNARD AND MARTHA LONG APPEAL OF AN ADMINISTRATNE INTERPRETATION OF SECTION 2.02.21 OF THE GARFIELD COUNTY ZONING RESOLUTION OF 1978, AS AMENDED. RECITALS WHEREAS, Garfield County is a legal and political subdivision of the State of Colorado for whlch the Board of County Commissioners is authorized to act; and WHEREAS, pursuant to law, the Board of County Commissioners of Garfield County, Colorado appointed the Garfield County Board of Adjustment ("BOA" or "Board") and vested the BOA with the power and duty to determine appeals from administrative decisions; and WHEREAS, the Appellants Bernard and Martha Long, ("Appellants" or "Longs") filed a timely appeal of an administrative determination of the Building and Planning Director that the configuration of the Appellants' residence constituted an illegal "two-family dwelling" under the Zoning Resolution; and WHEREAS, the BOA conducted a hearing on April 25, 2005, to decide whether to uphold or reverse that administrative decision; and WHEREAS, Section 9.04.02 of the Garfield County Zoning Resolution of 1978, as amended ("Zoning Resolution") requires that the "concurring vote of four members of the Board shall be necessary to reverse any order, requirement, decision or determination of any administrative official or agency or to decide in favor of the Appellant."; and WHEREAS, after full deliberations and consideration of the evidence and testimony presented, the BOA voted 3-2 to reverse the decision of the Administrator, but since four votes are required, the appeal is denied by operation of law. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ADJUSTMENT OF GARFIELD COUNTY, COLORADO: Section I. Notice and Representation: ·I llllll lllll lllllll 11~111111111111111111111111111111111 699588 06/08/2006 03:08P 81808 P487 M ALSDORF 2 of 5 R 0.00 D 0.00 GARFIELD COUNTY CO 1. No specific notice of the BOA's consideration of the appeal of the administrative decision was required by the Garfield County Zoning Resolution. Nonetheless, the meeting was attended by the Longs, their son and daughter, and several representatives of the County Building and Planning Department. 2. The Appellants were represented by Thomas Hartert, Esq. of the firm of Balcomb and Green. The Building and Planning Department was represented by Carolyn M. Dahlgren, Deputy County Attorney. Steven L. Carter, Esq., appointed by the Board of County Commissioners, was present as counsel to the BOA. Section 2. Findings of Fact and Statement of Positions: 1. 2. 3. 4. 5. 6. 7. 8. The Longs obtained a building permit from Garfield County in 1998 (Permit #6990) to construct a single-family residence on Lot 3 of the Long Subdivision Exemption. A certificate of occupancy was issued for this residence on January 10, 2000. At some time prior to 2004, the Longs constructed living quarters in the basement of the residence for their daughter and her two children. The Garfield County Building and Planning Department learned of these Jiving quarters in 2004, when the Longs' son inquired of a Garfield County Building Inspector about obtaining a separate address for what he termed the "basement apartment." The Building Inspector reported this information to the Garfield County Zoning Enforcement Officer, who determined that the Longs had converted their single-family residence, as permitted by Permit #6990, into an illegal "two-family dwelling", as defined in Section 2.02.21 of the Zoning Resolution. The Building and Planning Department so advised the Longs, by letter dated November 29, 2004. The request for appeal of the administrative decision was initiated on February 15, 2005, by the Longs by way of a letter from their attorney (Exhibit E to Exhibit C, the "Staff Report") in response to a letter of interpretation from the Building and Planning Department, dated February 7, 2005. The basement quarters of the Longs' residence now has a kitchen and a separate entrance, as well as living, sleeping and bathroom areas. The testimony presented to the BOA conflicts as to the date when the kitchen was installed, and no proof was available as to whether the Longs' building plans had been approved by the County with the kitchen in the original 1998 design. 10. 1111111111111111~11111111111111111111111111111111111111 699588 06/08/2006 03:08P 81808 P488 M RLSDORF 3 of 5 R 0.00 D 0.00 GRRFIELD COUNTY CO 9. 11. Consistent with the Staff Report and staff presentation, Mark Bean, as the Director of the Building and Planning Department and "Chief Building Official" testified that he interpreted the term "dwelling" in Sections 2.02.18 through 2.02.22 of the Zoning Resolution by reference to the term "living independently" in Section 2.02.19, with an additional kitchen defining an "independent dwelling unit." Mr. Bean's and the Zoning Code Enforcement Officer, Mr. Hackett's, testimony was that the same definition has been used, as an unwritten policy, for 8-15 years. The Appellants' position was that the International Residential Code ("!RC") created a "per se" definition of "two-family dwelling'', as defined in Zoning Resolution, and that the per se definition in the !RC is being retroactively, and inappropriately, applied to the Longs' situation. The !RC, as amended for Garfield County, was adopted in 2004 by Resolution 2004-06 of the Garfield County Board of County Commissioners, with the policy distinguishing a two-family dwelling added as a written part of the !RC. Section 2. Request for Reversal Denied. I. 2. 3. A motion was made to uphold the County's interpretation of the definitions for single and two family dwelling units as consistently applied. The motion failed on a 3-N to 2-Y vote. The Board of Adjustment then voted, 3-Y to 2-N, to overturn the administrative decision, determining that the interpretation of the term "dwelling unit" in Section 2.02.19 of the Zoning Resolution by making reference to the tests in the !RC, under the facts presented to the BOA, was not reasonable. However, Article Ill of the By-Laws, the Zoning Resolution and §30-28- 118(3), C.R.S., as amended, require the concurring vote of four (4) members of the Board to overturn the administrative decision and decide in favor of the Appellant; therefore, by operation of law, the appeal of the administrative decision is denied. ADOPTED by the Board of Adjustment of Gmfield County, Colorado, to be effective upon the date of decision, April 25, 2005, no matter the date of execution. ATTEST: Long BOA Resolution Page 3 of 5 BOARD OF ADJUSTMENT · 1111111111111111111111111111111111111111111111111111111 699588 06/08/2006 03:08P B1808 P489 M RLSDORF 4 of 5 R 0.00 D 0.00 GARFIELD COUNTY CO By: _;t1 _;1 yL..-~ Long BOA Resolulion Page4of5 Chairperson Date: ft;/ I,. (~oo b t , 1111111111111111111 ~111111111111 11111111111111111111111 699588 06/08/2006 03:08P 81808 P490 M ALSDORF 5 of 5 R 0.00 D 0.00 GARFIELD COUNTY CO STATE OF COLORADO ) ) SS. COUNTY OF GARFIELD ) I, the undersigned duly appointed and acting Secretary to the Board of Adjustment do certify that the foregoing is a true and accurate copy of Resolution No.Bol'I ~;;,G: reflecting the decision made by the Board of Adjustment of Garfield County, Colorado, at a meeting held on the day here and above stated. T:\Myfiles\ZONINGIBOA \Long BOA Reso 1-9-06. wpd Long BOA Resolution Page 5 of 5