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HomeMy WebLinkAbout1.0 Application.pdfTHOMAS W. STUVER DANIEL D. LEMOINE HAND DELIVERED STUVER & LEMOINE, P.C. ATTORNEYS AT LAW 120 WEST THIRD STREET P. 0. BOX 907 RIFLE, COLORADO 81650 April 2, 2002 ' ... TELEPHONE 970 · 625·1887 FAX 970 · 625·4448 GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT 109 8th Street, Suite 303 Glenwood Springs, Colorado 81601 RE: LETTER OF APPEAL: Terry Kirk I Real Property at 455 Main Street, Silt, Colorado DECISION APPEALED: Decision by Compliance Officer Steve Hackett not to allow Mr. Kirk's proposed use of his property at 455 Main Street, Silt, Co lo rado This letter ofappeal is submitted pursuant to section 9.04 of the Garfield County Zoning Resolution from a decision of Steve Hackett, Compliance Officer for the County Building and Planning Department. By letter dated March 26, 2002, and received by Terry Kirk March 27, 2002, Mr. Hackett issued a decision denying Mr. Kirk's proposed use of his property at 455 Main Street, Silt, Colorado (the "property"). (See copy of letter dated March 26, 2002, attached hereto as Exhibit HA"). MR. KIRK'S PROPOSED USE The dominant feature of Mr. Kirk's proposed use of the property is the rental of contractor's equipment and retail of building materials. Ancillary to the dominant proposed use is the sale of small quantities of pre-mixed concrete for use by residential and commercial customers. (An illustration and specification sheet of a sample trailer-mounted unit is attached hereto as Exhibit "B"). Mr. Kirk's proposed use anticipates mixing pre-processed materials (water, sand, gravel, cement) in the trailer-mounted units on the property so that customers can rent the equipment, loaded with small quantities of mixed concrete to take to the job site. Mr. Kirk's proposed use bears no resemblance to traditional concrete batch plants and should not be viewed as such. (An illustration of a typical batch plant is attached hereto as Exhibit "C") All \. GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT Kirk Letter of Appeal April 2, 2002 Page 2 mixing of the pre-processed materials occurs in the small self-contained trailer-mounted units. A pre-measured amount of water, sand, gravel and cement are added sequentially by hand or fork lift into the unit which has its rotary blades turning. In order for the trailer-mounted units to function, the materials must be added in the proper sequence: water, sand, gravel, cement. Dry materials cannot be put in the units. Once the pre-processed materials are in the unit, it is towed to the job site for immediate use. The trailer-mounted units can be towed by standard pickup trucks (via a traditional or goose-neck hitch) to be taken to the customer's job site. Because of their diminutive size, these units are ideal for small residential and commercial jobs where only a few yards of concrete are needed. APPLICATION OF ZONING REGULATIONS The property in question is zoned Commercial Limited (C/L) by the County. As a result, its uses are restricted to those permitted within a Commercial Limited District. The County Zoning Regulations identify specific uses which are permitted as a matter of right', conditionally', or under special permit3 within each zoning district.4 Mr. Kirk has not applied for a special or conditional use permit 1Use, by right: a use allowed in a particular zone Districfwhen listed thereunder with no further conditions or approval required other than the general tenns and stipulations of this Resolution. Garfield County Zoning Regulations,§ 2.02.52(3). 2Use. conditional: a use allowed in a particular zone District when listed thereunder, provided that all requirements under the applicable Zone District Regulations and Supplementary Regulations are observed. Garfield County Zoning Regulations,§ 2.02.52(4). 3Use, special: uses allowed only by permit of the County Commissioners, which permit may be granted or denied. If granted, certain conditions and perfonnance standards may be imposed and must be complied with by the permittee. Garfield County Zoning Regulations, § 2.02. 52(5). Approval of Conditional and Special Uses: Uses listed as Conditional under the appropriate Zone District Regulation shall be permitted based on compliance with the requirements listed; where uses are listed as Special Uses, they shall be permitted only: (I) Based on compliance with all requirements listed herein, and; (2) Approval by the County Commissioners, which Board may impose additional restrictions on the lot area, floor area, coverage, setback and height of proposed uses or require additional off.street parking, screening fences and landscaping, or any other restriction or provision it deems necessary to protect the health, safety and welfare of the population and uses of the neighborhood or zone District as a condition of granting the special use. Garfield County Zoning Regulations, § 5. 03. JO 4All uses in a Commercial Limited District are also subject to the provisions of the Supplementary Regulations, Section 5 of the Zoning Regulations. GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT Kirk Letter of Appeal April 2, 2002 Page 3 and this appeal presently concerns Mr. Hackett's determination that the proposed use is not a use permitted as a matter of right. The Zoning Regulations identify a number of uses by right within a Commercial Limited District. "Wholesale and retail establishments", "personal service establishments" and "general service establishments" are permitted as a matter of right within a Commercial Limited District. 5 Mr. Kirk's proposed use is a commercial establishment permitted as a matter of right within a Commercial Limited District.6 In order to see why Mr. Kirk's proposed use is a commercial establishment permitted as a matter of right within a Commercial Limited District, it is informative to look at each component of the proposed use. A. RENTAL OF TRAILER MOUNTED MIXING UNITS: PERMITTED AS A MATTER OF RIGHT The Rental of trailer,mounted concrete mixing equipment falls within the uses permitted as a matter of right within a C/L District. Commercial uses allowed as a matter of right include general service establishments. Vehicular rental is one of the specific examples given in the regulations as a permitted general service establishment. Garfield County Zoning Regulations, §3. 07. OJ. This is confirmed by Mr. Hackett's letter to Terry Kirk ofJanuary 21, 2002, attached hereto as Exhibit "D". B. SALE OF PROCESSED SAND, GRAVEL & CEMENT : PERMITTED AS A MATTER OF RIGHT The wholesale or retail of processed sand, gravel & cement is allowed as a matter of right within a Commercial Limited District as the sale of building materials. Commercial uses allowed as a matter ofright within a Commercial Limited District include wholesale and retail establishments, including the wholesale and retail of building materials. Garfield County Zoning Regulations, §3. 07. OJ. Mr. 5 Provided certain requirements are observed: ( l) All fabrication, service and repair operations must be conducted within a building; (2) All storage of materials must be within a building or obscured by a fence; (3) All loading and unloading of vehicles must be conducted on private property; and (4) No dust, noise, glares or vibration may be projected beyond the lot. Garfield County Zoning Regulations, §3.07.01. 6 Although Garfield County Zoning Regulation §3.07.01 lists examples of wholesale, retail, personal service and general service establishments, the use of the word "including" reveals that the examples listed are not all inclusive. GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT Kirk Letter of Appeal April 2, 2002 Page4 Hackett's letter to Terry Kirk ofJanuary 21, 2002, attached hereto as Exhibit "D" confirms this when he indicates that Mr. Kirk would "supply the customer with bagged dry materials" for mixing on the job site. C. SALE OF MIXED CONCRETE: PERMITTED AS A MATTER OF RIGHT Concrete is a building material. As a result, the wholesale orretail of mixed concrete is also allowed as a matter ofright within a Commercial Limited District as the sale ofa building material. Garfield County Zoning Regulations, §3.07.01. D. MIXING OF SMALL QUANTITIES OF PRE-PROCESSED SAND, GRAVEL, WATER AND CEMENT IN SELF CONTAINED TRAILER-MOUNTED UNITS: PERMITTED AS A MATTER OF RIGHT Although the rental of trailer-mounted concrete mixing equipment and the wholesale or retail of mixed concrete are uses permitted as a matter of right within a Commercial Limited District, Mr. Hackett has determined that Mr. Kirk's proposed use is prohibited. Mr. Hackett's denial of Mr. Kirk's proposed use is based on an erroneous determination that mixing of small quantities pre- processed sand, gravel, water and cement in self contained trailer-mounted units constitutes the processing of raw materials. Mr. Kirk's proposed use cannot properly be characterized as processing and is therefore not prohibited. Mr. Kirk's proposed commercial establishment involves what is more properly characterized as fabrication, the storage of materials and the loading and unloading of vehicles, which are contemplated as a matter of right within a Commercial Limited District. Garfield County Zoning Regulations, §3. 07. OJ. In order to determine how industrial uses are classified for purposes of regulation under the County Zoning Regulations, the "dominant feature of the operation" must be characterized in one of six listed ways. Garfield County Zoning Regulations, §2. 02. 31 (2). Among those listed are "processing" and "fabrication". Processing: to subject to some special process or treatment, as in the course of manufacture; change in the physical state or chemical composition of matter; the second step in utilization of a natural resource; examples include petroleum refining, oil shale crushing, retorting and refining, ore smelting, coal crushing and cleaning, saw mills, alfalfa pellet mills, food canning or packing, creation of glass, ceramic or plastic materials, gravel crushing, cement manufacture; concrete batch plants. 7 71! is important to remember that Mr. Kirk is not proposing a concrete batch plant. GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT Kirk Letter of Appeal April 2, 2002 Page 5 Garfield County Zoning Regulations, §2. 02 31 (2). Fabrication: to form by art and labor; to manufacture; change in the physical shape of matter; the final step in utilization of a natural resource; examples include manufacture of equipment, vehicles and consumer goods from processed materials, wood and metal working operations, and batch plants. Garfield County Zoning Regulations, §202.31(2). (Emphasis added). Processing, as defined by the Regulations, is not the "dominant feature" of Mr. Kirk's proposed operation. All materials to be used will have been fully processed before they will be mixed in the trailer units. For example, the sand Mr. Kirk anticipates using has already been excavated, crushed, screened, washed and bagged before arriving on the Kirk property. The mixing of processed sand, gravel, cement and water is the final step in the utilization of a natural resource and is therefore more properly characterized as fabrication, a permitted use. PUBLIC POLICY ISSUES In addition to the foregoing, we believe there are important public policy reasons why Mr. Kirk's proposed use should be permitted. Mr. Hackett's letter of January 21, 2002, attached hereto as Exhibit "D", indicates that the materials purchased from Mr. Kirk can be mixed in the trailer-mounted mixing units rented from Mr. Kirk "at the customer's work site." However, Mr. Hackett's decision by letter of March 26, 2002, attached hereto as Exhibit "A", denies the proposed use, reciting that the same materials cannot be mixed on the Kirk property. In other words, according to Mr. Hackett, as long as the mixing of the bagged materials does not occur on the Kirk property, the proposed use would be permitted. Such a decision undermines the intent of the Zoning Regulations which identify that in any commercial operation within a Commercial Limited District, the following requirements must be observed8: (I) All fabrication, service and repair operations must be conducted within a building; (2) All storage of materials must be within a building or obscured by a fence; (3) All loading and unloading of vehicles must be conducted on private property; and (4) No dust, noise, glares or vibration may be projected beyond the lot. We believe the intent of the Regulations is better served by allowing the mixing of pre-processed materials on the Kirk property rather than in residential or other neighborhoods as urged by Mr. Hackett. If the materials are mixed on the Kirk property, the above regulatory requirements must be observed and will provide a good measure ofregulatory control. 8Garfield County Zoning Regulations, §3.07.01. ( ) GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT Kirk Letter of Appeal April 2, 2002 Page 6 We believe it is also important to evaluate the benefit of allowing the proposed use. A large part of the demand for pre-mixed concrete is in small batches of 3 or fewer yards. Mr. Kirk's trailer- mounted units can meet that need while resulting in less strain on roads than over-sized cement trucks hauling such small quantities. CONCLUSION We submit that Mr. Hackett has erred in denying Mr. Kirk's request. Alternatively, to the extent that Mr. Hackett has acted appropriately, we urge Board to consider the particular circumstances of this case and to grant the relief requested. We therefore respectfully appeal the decision of Mr. Hackett and request confirmation that, upon proper application, Mr. Kirk's proposed use will be recognized as a use permitted as a matter of right within a Commercial Limited District. Very truly yours, STUVER & LEMOfNE, P.C. Daniel D. LeMoine cc: Terry Kirk Steve Hackett '. March 26, 2002 Mr. Terry Kirk 1500 County Road 259 Rifle, CO 81650 Dear Mr. Kirk, Garfield County BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett<@.garfield-county.com Concerning your request for information regarding mixing and delivering concrete in small batches from your business in the Commercial Limited zone district. Our current zoning regulations for the C/L zone, copy enclosed, prolµbit "processing", as defined in section 2.02.30 (2), copy enclosed, under any circumstances. Should you wish to appeal the decision to not allow concrete processing on your property please submit a detailed written application, within seven days of the receipt of this letter, to the Zoning Board of Adjustment, as explained in section 9.04, copy enclosed. Yours truly, Steve Hackett Compliance Officer .;;,.~ .. Exhibit A to Letter of Appeal: T errv Kirk 109 8th St\ , Suite 303, Glenwood Springs, Colo'\ '81601 (970) 945-8212 (970) 285-7972 FcL'C: (970) 384-3470 General Specifications Hopper Mix Capacity Hopper Dimensions Mixing Discharge Overall Length Overall Width Overall Height Weight Power Supply Operation Pressure Wash Frame Design Chassis Brakes Distributed by: Ammex Equipment POBoxl332 ) ProMixer Model CX202 Concrete Mixer/Hauler 2 cu. yd. or less, aggregate size up to'!." recommended 34 Yi" wide, 8' long opening, 43" deep Hydraulic-operated rotating paddle system Rear gate, hydraulic raise/lower dump cylinder to 25°angle 13 '6" 7' 79 Yi" approximately 4,000 lbs 18 hp gasoline engine, Kohler or Honda, standard Optional: 18 hp Ratz diesel engine Hydraulic pump and motor, with reservoir, 12 gpm@ 1800 psi Hydraulic-operated water pump, hose and nozzle, 25-gal. reservoir ·Portable, heavy-duty welded steel design with catwalks, hand rails, and top mounted hinged Grizzly over hopper Two 7000-lb. Axles, four 7.50-16, 10 PR tires Four-whee~ surge standard electric, optional "Proudly made in Texas, U.S.A." Phone: (210) 732-7986 Fax: (210) 732-5903 Helotes, TX 78023-1332 E-Mail:jcotton@ammexequipment.com Toll Free: (888) 325-5903 Web: www.ammexeguipment.com Copurigbt © Ammtx Equipment Company Exhibit B to Letter of A~~eal: Ter,;, Kirk Exhibit C to Lettr ,f Appeal: Terry Kirk ( January 21, 2002 Terry Kirk & Lee Copland Star Precast 1500 County Road 259 Rifle CO 81650 Garfield County BUILDING & PUNNING DEPARTMENT Code Compliance Office shackettl@garfield-county.com This is to advise you that I have reviewed your proposed use of property at 445 Main Street in Silt for rental of trailer mounted concrete mixing equipment. This is a use by right in the CL zone district provided that concrete is not batched (mixed) on the site. My understanding is that you will rent the trailer mounted machine and supply the client with bagged dry materials which will then be mixed at the customers work site. ' A Special Use Permit for processing natural resources would be required in order for you to mix concrete on your property. Yours truly, /A.A/1.0 teve Hackett Compliance Officer Ee: Mark Bean .;,,..~ .. Exhibit D to Letter of Appeal: Terry Kirk 109 8th Street, Suite 303, Glenwooa Springs, Colorado 8160 I (970) 945-8217. (970) 285-7972 Fax: (970) 38.f-3470 April 17, 2002 Terry Kirk 1500 County Road 259 Rifle CO, 81650 RE: Decision Appeal Dear Terry, Garfield County BUILDING & PLANNING DEPARTMENT I am writing this letter to inform you that the Planning Staff concurs with Code Compliance Officer Steve Hackett's decision that the current activities on your property within the Commercial Limited zone district are considered 'processing'. As such, this is not an allowed use within the zone district. As Steve indicated in his letter dated March 26, 2002, it is within your rights to appeal this decision to the Garfield County Board of Adjustment. Your application has been scheduled for appeal with the Board of Adjustment on Monday, May 20, 2002 at 7:00 p.m. Please do not hesitate to call if you have any questions regarding this process. Sincerely, ~t;t0-l 0--~ Kim Schlagel Senior Planner CC: Steve Hackett DanLeMoine 109 8th S( t, Suite 303, Glenwood Springs, Colo~ .' 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 STUVER Be LEMOINE, P.C. ATTORNEYS AT LAW 120 WEST THIRD STREET P.O. BOX 907 RIFLE, COLORADO 81650 THOMAS W. STUVER DANIEL 0. LEMOINE Garfield County Building & Planning l 09 Eighth Street, Suite 3 03 Glenwood Springs, CO 81602 April 11, 2002 Re: Terry Kirk/Appeal to Board of Adjustment TELEPHONE 970 -625-1887 FAX 970 -625-4448 This letter follows my discussion of a few days ago with your office. At that time I was advised that we would receive written notification as to when the Board of Adjustment would hear our appeal. If my understanding is in any way incorrect, please advise. Thank you for your attention to this matter. Very truly yours, STUVER & LeMOINE, P.C. DDL/lsa I ............ -- 'RECErVEo APR 1 2 2002 STUVER & LEMOINE, P.C. ATTORNEYS AT LAW 120 WEST THIRD STREET P.O. BOX 907 RIFLE, CO 81650 I DATE: April 2, 2002 RECElVEO APR D 2 2U02' TRANSMITTAL LETTER TELEPHONE 970-{j25-1887 FAX 970-625-4448 TO: RE: Terry Kirk I Real Property at 455 Main Street, Silt, Colorado HAND DELIVERED GARFIELD COUNTY ZONING BOARD OF ADJUSTMENT 109 S'h Street, Suite 303 Glenwood Springs, Colorado 81601 DOCUMENTS SUBMITTED: xx Original and 10 Written letter of appeal copies: TRANSMITTED: XX For filing in your office XX For your consideration OTHER MESSAGE: I was informed by the Building and Planning Office that no fee needs to accompany this letter of appeal. If I was misinformed, or if you have questions, please contact my office. Very truly yours, ( (