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HomeMy WebLinkAbout2.0 BOA Staff Report 06.25.2007Exhibits for a Public Hearing held on June 25`h, 2007 Exhibit Letter (A to Z) A Proof of Mail Receipts B Proof of Publication C Garfield County Zoning Resolution of 1978, as amended D Application E Staff Memorandum F Staff Power Point Presentation G Letter from Steve Bennett, Bureau of Land Management dated May 10`h, 2007 H Email from Carole Huey, Bureau of Land Management dated June 5`h, 2007 BOA 06/25/2007 CR ORR/Smith Variance Request APPLICANT / OWNER Lacy Orr and Gil Smith REPRESENTIATIVE John L. Taufer LOCATION South of the Town of New Castle SITE DATA 78.4 acres EXISTING ZONING ARRD ADJACENT ZONING ARRD, Open Space STAFF RECOMMENDATION Denial Applicant's out building located on an adjacent parcel Applicant's residence located within the required setbacks d Power Line(s) Utility, Emergency Services and Fire Access easement (Hatched area) Parcel Boundary Line -1- BOA 06/25/2007 CR I REQUEST The Applicant requests that the Board of Adjustment (BOA) grant a variance from the 10 foot side -yard setback requirement identified in §3.02.06 of the Garfield County Zoning Resolution of 1978, as amended (the Zoning Code). II BACKGROUND Two (2) non -conforming structures are located on the property. A residence constructed in 1975 is in violation of §3.02.06 of the Zoning Code. The identified setbacks have been in place since 1973. The existing structure (residence) is an illegal non -conforming structure. The property is also improved with an outbuilding constructed in 1965 that not only exceeds the required setbacks but is located on the adjacent Bureau of Land Management (The Bureau) parcel. The Applicants have represented that at the time of construction the fence was placed on what was believed to be property boundary line by a previous property owner. The Applicants have not provided any evidence to support the existing fence ever represented the actual property boundary and rely on the assumption of the previous property owner. III §9.05.03 Variance Criteria §9.05.03 identifies the criteria to be considered for granting a variance. A variance may be granted by reason of exceptional narrowness, shallowness or shape of the subject property at the time of the enactment the Zoning Code, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition. The granted variance must be for the minimum necessary to alleviate such practical difficulties or undue hardship. Relief granted cannot cause substantial detriment to the public good and without substantially impairing the intent and purpose of the Zoning Code. The Applicant must also demonstrate that the circumstances found to constitute a hardship were not caused by the applicant and not due to or a result of general conditions within the ARRD Zone District. Staff Finding: An improvement survey at the time of purchase should have revealed this issue. The subject property is not consistent with the identified criteria for granting a variance. In order to demonstrate a hardship, the Applicant must provide evidence that a previous survey identified the property boundary incorrectly. Staff finds that the request is not in compliance with §9.05.03 of the Zoning Code. IV SUGGESTED FINDINGS 1.) That proper public notice was provided as required for the hearing before the Board of Adjustment; 2.) That the hearing before the Board of Adjustment was extensive and complete and that all interested parties were heard at that meeting; -2 BOA 06/25/2007 CR 3.) The Application is not in conformance with Garfield County Zoning Resolution of 1978, as amended; 4.) That for the above stated and other reason, the proposed Variance is not in the best interest of the health, safety and welfare of the citizens of Garfield County; V STAFF RECOMMENDATION FOR ZONE DISTRICT AMENDMENT REQUEST The Applicant has not provided evidence of a previous survey identifying the existing fence as the property boundary. Staff recommends that the Board of Adjustment deny the variance request allowing deviation from the identified side -yard setback requirements for the existing structures as represented on the improvements survey. -3 United States Department of the Interior BUREAU OF LAND MANAGEMENT Glenwood Springs Field Office 50629 Highway 6 and 24 Glenwood Springs, Colorado 81601 www.co.blm.eov CERTIFIED MAIL — RETURN RECIEPT REQUESTED 7006 2150 0000 0561 2292 IN REPLY REFER TO: COC -71177 292803, 292006 (C0-140) May 10, 2007 Mr. John Taufer, Taufer & Associates PO Box 2271 Glenwood Springs, CO 81602 Dear Mr. Taufer: TAKE PRIDE` INAMERICA You contacted our office on May 10, 2007 to inquire on how to rectify facilities (potable water well, shed, and fence line) located in T. 6 S., R. 90 W., SW ''A section 30, 6th Principal Meridian, Garfield County, Colorado. These facilities are in trespass pursuant to Title 43 CFR § 9239.1, and Title 43 CFR § 2801.3 under the Title V of the Federal Land Policy and Management Act of October 21, 1976, as amended 43 U.S.C. 1761-1771. In the recent telephone conversation you had on May 10, 2007 with Carole Huey, Realty Specialist of my staff you stated that you are working on behalf of the owners of the above parcel (owners: Lacy Orr and Howard Smith). We will need you to provide the following documents in order to continue to resolve this matter: 1. Documentation from the landowners permitting you to resolve this matter on their behalf (with original signatures), 2. copy of the water well permit, and 3. a copy of the recent survey your company surveyed in 2005. Generally, encroachments/trespasses on BLM Public Lands are resolved in two ways: 1 G 1. Removal of facilities immediately, or 2. obtain a right-of-way or land use permit to authorize the activity. In re -capping the conversation between you and Carole Huey of my staff, if we decided to issue you a land use permit, it would only be valid for the current resident and would not be transferable. We understand that you have filed with the county to build a subdivision, thus it would be benefit for both parties to resolve this as quickly as possible. If your option is to choose to apply for a land use permit, you can find more information about it at the website: http://www.blm.gov/nhp/whatilandslrealtylObtaininaaRO WPamphlet.pdf This website is for obtaining rights-of-way, but the general information is also pertains to land use permits. Attached is a 2920 land use application. Please fill it out as completely as possible, and attached the requested documents listed in the previous page. Please provide us which option you will be pursuing within 30 days receipt of this letter. Failure to complete one of the required actions (as listed above) will result in issuance of a violation notice along with possible seizure and subsequent removal by the government of all property in trespass. Since this is a trespass, the BLM will hold you totally responsible for all costs incurred for the complete removal and rehabilitation of these improvements. According to the regulations in Title 43 CFR § 9239.1-3, there are three types of damages applicable to trespass situations: administrative costs, rehabilitation costs, and punitive damages. (a) Unless State law provides stricter penalties, in which case the State law shall prevail, the following minimum damages apply to trespass of timber and other vegetative resources: (1) Administrative costs incurred by the United States as a consequence of the trespass. (2) Costs associated with the rehabilitation and stabilization of any resources damaged as a result of the trespass. (3) Twice the fair market value of the resource at the time of the trespass when the violation was nonwillful, and 3 times the fair market value at the time of the trespass when the violation was wil/ful. (4) In the case of a purchase from a trespasser, if the purchaser has no knowledge of the trespass, but should have had such knowledge through reasonable diligence, the value at the time of the purchase. (b) The provisions of paragraph (a) of this section shall not be deemed to limit the measure of damages that may be determined under State law. [56 FR 10176, Mar. 11, 1991, as amended at 60 FR 50451, Sept. 29, 1995 If we decide to approve a land use permit, one of the stipulations of the permit would require you to remove all non -permanent items before the land use permit is authorized. 2 And, the land use permit would not allow for any further development or use of public land. When the current legal owners no longer retain permanent residency in the home or the Title on the house and property is transferred or sold; all facilities must be removed from BLM Managed Lands within 30 days of that transaction. According to Federal regulations contained in 43 CFR § 2804.14, BLM is required to be reimbursed for the costs incurred in processing a land use application. We will begin processing your land use application once we have received your processing fee. We have determined the processing fee to be Category 4 which is $990. Please submit that fee along with your application. If we decide to issue the permit, you will be assessed monitoring fees based on the estimated number of hours required to monitor your activities allowed under the permit. You will also be charged rent for the use of public land based on 1) the acreage involved, and 2) the type of granted use. The website listed on page 2 of letter explains how processing, monitoring and rental fees are determined. This decision may be appealed to the Interior Board of Land Appeals, Office of the Secretary, in accordance with the regulations contained in 43 CFR, Part 4 and the enclosed Form 1842-1. If an appeal is taken, your notice of appeal must be filed in this office (at the above address) within 30 days from receipt of this decision. The appellant has the burden of showing that the decision appealed from is in error. If you wish to file a petition (request) pursuant to regulation 43 CFR 2801.10 or 43 CFR 2881.10 for a stay (suspension) of the effectiveness of this decision during the time that your appeal is being reviewed by the Board, the petition for a stay must accompany your notice of appeal. A petition for a stay is required to show sufficient justification based on the standards listed below. Copies of the notice of appeal and petition for a stay must also be submitted to each party named in this decision and to the Interior Board of Land Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the same time the original documents are filed with this office. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtaining a Stay Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards: (1) The relative harm to the parties if the stay is granted or denied, 3 (2) The likelihood of the appellant's success on the merits, (3) The likelihood of immediate and irreparable harm if the stay is not granted, and (4) Whether the public interest favors granting the stay. Again, we must have a response within 30 days receipt of this letter describing which course of action listed above that you will be taking, along with a plan of development (if you choose the option to remove all property off Federal land), or submission of the land use application thereby working towards the elimination of any future trespass actions. We look forward to working with you to resolve this matter. If you have any further questions or comments, please contact Carole Huey, Realty Specialist at (970)947-2804, or electronically at chuev(thco.blm.gov. Sincerely, Steve G. Bennett Associate Field Manager attachments: land use application (2920) 4 David Pesnichak From: Carole_Huey@blm.gov Sent: Tuesday, June 05, 2007 4:28 PM To: David Pesnichak Subject: Orr & Smith variance Request Attachments: TauferArchitects.pdf TauferArchitects.pd f (41 KB) Hi David: We will not allow a variance onto BLM Lands. Additionally, their representative, John Taufer has inquired to us about a land swap, right-of-way, etc. We will not consider selling the land or a right-of-way. We will consider a (up to) 3 year land use permit which can be renewed. Here is a copy of the letter I sent to Mr. Taufer. (See attached file: TauferArchitects.pdf) Please keep me informed of their intentions or changes (if necessary). Best Regards, Carole Huey Realty Specialist, BLM Glenwood Springs Field Office 50629 Highway 6 & 24 Glenwood Springs CO 81601 970.947.2804 1