No preview available
HomeMy WebLinkAboutBOCC5.03.2010• • Exhibits for Public Hearing held on May 3, 2010 for a Text Amendment for Article 12: Code Enforcement Exhibit Letter (A to Z) A B C D E F G H Exhibit Proof of Publication Garfield County Unified Land Use Resolution of 2008, as amended Garfield County Comprehensive Plan of 2000 Staff Memorandum dated 05/03/10 Staff Presentation Proposed language changes to Article 12 Minutes from the BOCC Work Session held on 10/13/2009 Ad ID 14803735 Date 103/22/2010 • Time PUBLIC NOTICE TAKE NOTICE that the Garfield County Board of County Commissioners has directed the Director of the Garfield County Building and Planning Depart- ment to propose amendments to the Text of the Garfield County Unified Land Use Resolution of 2008, as amended. The Board of County Commis- sioners has obtained a recommendation from the Garfield County Planning Commission in order to contemplate their recommendations in a noticed public hearing. The proposed amendments generally include the following: 1) Strike the "Takings" process from the Code En- forcement Section 12-103(B); and 2) Amend the "Takings Determination" language in Section 12-107(1) to eliminate the notice of poten- tial violation language. All persons affected by the proposed amendments are invited to appear and state their views, pro- tests or support. If you can not appear personally at such hearing, then you are urged to state your views by letter, as the Board of County Commis- sioners will give consideration to the comments of surrounding property owners, and others affected, in deciding whether to recommend approval of the proposed amendments. The draft amendments may be reviewed at the office of the Planning De- partment located at 108 8th Street, 4th Floor, Gar- field County Plaza Building, Glenwood Springs, Colorado between the hours of 8:30 a.m. and 5:00 p.m., Monday through Friday. This public hearing where the Board of County Commissioners make a decision on said amend- ments has been scheduled for May 3rd, 2010 at 1:15 PM which will be held in the County Commis- sioners Meeting Room, Garfield County Plaza Building 108 8th Street, Glenwood Springs, Colo- rado. Published in the Rifle Citizen Telegram and the Glenwood Springs Post Independent on April 1, 2010. [4803735] Ad shown is not actual print size • c E W V U O L O D.. •O c0 C E w � � 7 O co 4.) U I— -�--� cu bp O to "-E5 C CUE L.9 Q • EXHIBIT C • • O U 4_) O U 4- 0 -2co0 m 0 m 0 0 Code Enforcement Workshop • • Current challenges: c a . O .4 J OU c > � O — +-J R3 co c6 -� u O 0 c 0 .> UO O m CO 0 co a) :-.) U v)L-- .au 0 O = 0 Q. Q Q. +-; a) Q Q c L co t(i) W 0 o -0 .0 Q) v) • G) OL ca E —1 ca E a- Ci0 a)O C > ._ c3 E c to p L U — ca a. p a- U ai :'w m 4'' O C O C E. 0 n3 1 1 1 1 — % of actua N N szuDC 0 U • • • • P• /7 • T 1 1--� X_ LL t cL 0m T T (3 days) T, I (45 days) • • N"'� r t• • • ` • • -yr • • r' N CD w coO i_—_ - z �� oco o- U Q CU Q ( cn � m dS wo L Wc Q O (73CU - cN 1 (3 days co (45 days 1 T LJ 3 days (45 days • • 4-. 0 CU t1A On 7:3 a) C O V O - > U To- p'ED O co CU v) __ Q • O co > i - Q cn _C :5 U cN co 4— ai - O O U (1) o tu D u WJ (13 O- z ,i, L O a >O a) O v O (11 cD Tr5 N �a) O _c E U O SU-- �'- c O O •- > C � .� O a) w U ap' Q O a) Q p O p . O N O� +J Q co co ,— QO O L)p J Ute> _CD co G.) O _c�, O O bD0 a) ID v) p p aJ N c3 •a) ±: >- CO CO c 0 U 0-- c -o p O O• O _LE cuE= a(13 +�-'°moo+-'0 c o `~ C '> _czNCLo n3CW Ca • - . (./14 Ca O i • l/) C6 4Q) Q. 1.- 0 "LC4- 0 OO p O . 1., 4_, — U C6 N 2 •U L._ -p L- y -- U u O OU 0 a-+ u a) V) 4 1 0► 4 0 1 1► 4) 4 0 0 1 0 4 4 1► 4 4 0 0 4 • O N 1 1► 4 .► 4 • 4 4 4' ► 4 0 E 4 4 0► 4 41 1 • 4 4 0 4. 4 4 0 4 0 4 0 ► 4 4 1 .► 4 ► 4 4, 4 4, 1 0► 0 4 t► 4 0 Cli 4 4 0 4 4 4 41 4 1 4► 0 .► 0 •1 4 4► 0 4 4 .► 4 4 4 4 4 41 CO "CU $ O >- •_ O 4-,0) ca a>� COL = UC c 5 0 > O >, >, v)-0 • _ O •— D -1-)4:1),_, w - c ) °, 2 ..5_ S 'zoo +9 L_CU g c0 CI CL C 0.k4 c O C COaJ O O^ 0 a). ,v) O cu Q.0 La Oa 0-0.—.0 cN E U :3 _ E c0 • ca Co cu.°'EE°c`�o°c0Cul ",_ 0 (j) CD 4-- • - -• -0 m U c0 +-. > CO -0=CI)bflja)bA.� �� hW -' . S� c0 p U 0 ' 0) O �� - f,c3 (0 —_, 0 •� O •— c0 ,... >. t0 �. _0 btO•— 0 O cu>a) .c NLi) U •-•— C FA ro ,},,, , ' L p O c O O Q• a; ta10 ca C 0 - cn - 4A a. 0 >, U Q- O O '� sem-- c0 o c0 ' 7) c - ' co 4— .- 0) - 0) o d.) L) ca v) 0 -c ° C O W p L 4-1 O > _ CliO- o E -a � 4_A +O O Q . Cl.Q 0_ ;: a) 4► c0 O O N . i - 4-){.'.... . - U . 0- C0 V) 0) ® I� RIc0 O E O= `+— O Q� 0 cu E N W 0'�. 0 CU .0 0 t�A,vi O0 a) 41 " C N c0 `" C' co > . > t0 N ai = -5> co o . 0) , . 0 OD a) . — > O a� O I.4 -o ca m +., CO D > c0 U 1 l�A co _c C.� N 4A c6 tvo co -so Ln 0 0 12-107(A)(2) Takings Determination 0 U () N • • _0 ca N (c ca 0.5 .N 4-= C a' O ) 117) 73 CD (13 au Eco tL N +• o73 8 ar -�-� - -- . 4-1 O p aj_0 cu L4 N CLO p V) o (D - Q.1) co C 0 - t (13 tr)"E U4-0 j 4, 4) 41 4) 4 b.AL LrJ . O C COQA 0 tan 4., co ri L -0 L _C %-i D • — _ p �— O N OsTj. N E CT3 cn a' U a' O 0" 5 O 0 >....-c 2 cn C (1) .47i C w L m ca 4— OD O CSA ca co P 4= c f�a C U D •'L U > c+_ C ca 0 _co u a�La�Qc>moc +-0 L Q.)•—� 0_C_ r- CO _C p cn 5 U O L ca v -3 U O cn _C L U : 1- p E ru0 71 i 5 O i U C U L- B N p. - U `* CO CO . Dva'Eo,�5ma V▪ -) -C7:5 U U E 4A � Q) o D u Q. d' += 4_- - LE cow VI O C -4-----. 0t).04-0< c U C C -4- >40 > U O ��n O <Cp4- "w 0CCD 0- 7:3 �. O U O CJ V E ca _•U Ct. v.) _i_+ O C +-� L = C O L 1— Q_ c 03 - U Q D U 2 4_ , O L - C -0 O N +�, ' L. "a C C U >^ N L -C � oa •CO O j .c ,Op S Uv)v•N = to -a O +, Q. >- c 4_ c Ocoa .a coca (r)L .O Ca _0 L. E 0-c U .� U fa — Q. ca c - u 4 4 0 41 4 4, 1 0 U N p Q. Q. -a U ca O L o 0_00 Q. fa O O CC U=cu L �--+ — ca U = to . I- -0 Li.._ +>�-�� N ca,O U O U C OA V)ca 4' -0U C 4= D C aJ L-CU c 'I•-' U i mu O>N U O v � U 5_O.— D 0 CL) _c 0 >>-,L O ca N cn C_O .,� C 1 • - oC c O 'E E v1 • — (13 o 4•••J V ai U cs o tto o � ' — d' cD C (NJ c C CU >, CO CC ca O _CD N CU •— u 0 z u co 4J v E c v E Co v + —) v v O 0 0 cI3 U U 0 • • ARTICLE XII ENFORCEMENT, VIOLATIONS, PENALTIES AND APPEALS EXHIBIT TABLE OF CONTENTS Section 12-101 Enforcement Authority 12-1 Section 12-102 Violations 12-1 A. Land Use Approvals 12-1 B. Building Permits 12-1 C. Conditions of Approval 12-1 D. Subdivisions. 12-1 E. Developments in Areas and Activities of State Interest 12-2 F. Continuing Violations 12-2 Section 12-103 Enforcement Procedures 12-2 A. Authority 12-2 B. Notice of Violation 12-2 C. Required Removal of Improvements 12-3 D. Revoking and Withholding Building Permits 12-3 E. Withdrawal of Development Permit 12-3 F. Forfeiture of Vested Property Right 12-4 G. Criminal Enforcement 12-4 H. County Court Civil Penalty 12-4 I. Civil Enforcement 12-4 J. Subdivision Enforcement 12-5 K. Areas and Activities of State Interest 12-5 Section '12-104 Penalties 12-5 A Criminal Penalties 12-5 B. Civil Penalties 12-5 C. Civil Cause 12-6 Section 12-105 Inspection 12-6 Section 12-106 Mergers of Lots or Parcels 12-6 A. General 12-6 B. Procedure 12-6 C. Application to the Assessor 12-7 Section 12-107 Decision Review 12-8 A. Takings Determinations 12-8 B. Regulatory Impairment of Property Rights 12-9 C. Appeals 12-10 GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-i • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS TABLE OF CONTENTS Section 12-108 Parties of Interest 12-10 GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12 -ii • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS ARTICLE XII ENFORCEMENT, VIOLATIONS, PENALTIES and APPEALS DIVISION 1 GENERAL PROVISIONS Section 12-101 Enforcement Authority. Provisions of this Land Use Code shall be enforced by the Board of County Commissioners and their authorized staff utilizing all authority granted under Colorado law. Section 12-102 Violations. A. Land Use Approvals. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of Garfield County in a way inconsistent with, not in accordance with, or not specifically allowed by this Land Use Code and without first obtaining all land use approvals or permits required by this Land Use Code. B. Building Permits. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of Garfield County in a way inconsistent with, not in accordance with, or not specifically allowed by the adopted building code and without first obtaining a building permit in accordance with the provisions of this Land Use Code and the adopted Building Code of Garfield County. C. Conditions of Approval. It shall be unlawful to use real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property, within the unincorporated territory of Garfield County in a way inconsistent with or not in accordance with the terms and conditions of any land use approval or building permit granted by the Board, its staff or authorized agents pursuant to the terms of this Land Use Code. D. Subdivisions. 1. In addition to the violations set forth above, any owner, subdivider, or agent of a subdivider who transfers or sells any property within a GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-1 i • I ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-102 VIOLATIONS subdivision before a Final Plat for such subdivided land has been approved by the Board and filed and recorded in the Office of the Garfield County Clerk and Recorder shall have violated the terms of this Land Use Code. 2. Any owner, subdivider, or agent of a subdivider who improves, sells or develops real property within a Subdivision in a manner that is inconsistent with and not permitted by the Subdivision Improvements Agreement authorizing the development of such subdivision shall be deemed to have violated the provisions of this Land Use Code. E. Developments in Areas and Activities of State Interest (§24-65.1-101 et seq. through 501 et seq., C.R.S., as amended). It shall be unlawful to use any real property or the improvements on real property; to undertake the development of real property; to erect, construct, reconstruct, remodel, restore or improve a building or structure; to excavate land; or to alter or change the use of any real property or improvements on real property within the unincorporated territory of Garfield County in a way inconsistent with, not in accordance with or not permitted by those regulations of this Land Use Code specifically directed to controlling development in areas of activities of state interest. F. Continuing Violations. Each day during which any violation of this Land Use Code or any part hereof continues shall be deemed a separate offense and violation. Section 12-103 Enforcement Procedures. A. Authority. The Garfield County Zoning Official, the Garfield County Building Inspector, and the Garfield County Code Enforcement Officer (all three positions are hereinafter referred to as "Enforcement Officials"), and the Garfield County Attorney are hereby delegated the power to enforce all provisions of this Land Use Code, the adopted Building Code, the adopted regulations of areas and activities of state interest, including without limitation, any condition imposed on an approval, and may utilize any remedies authorized under Colorado law or the provisions of this Article XII. B. Notice of Violation. Whenever the Enforcement Officials have personal knowledge of any violation of this Land Use Code, such person shall give written purported violator files notice of a taking of private property to the Board of person shall give written Notice of Violation to the purported violator to correct or cease and desist from continuing the violation. An immediate order to cease the GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-2 ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-103 ENFORCEMENT PROCEDURES violation shall be tendered in the case of a severe risk to health, safety and welfare of other citizens, but in no event shall a correction period longer than ten (10) days be granted by the Enforcement Officials for correcting the violation. if the purported violator requests a takings determination under Section 12 107(A) (Resolution 2009-53) C. Required Removal of Improvements. The Enforcement Officials, in their Notice of Violation set forth above, are hereby authorized to require the immediate removal of all fixtures, utilities, appliances, structures or other improvements or to require the removal or restoration of any other development, or cessation of use when such use or development in not permitted by the provisions of this Land Use Code or when such development violates the terms and conditions of an existing approval, including the approval of a Subdivision Improvements Agreement. If compliance with requested removal or cessation of activities is not achieved, an Enforcement Official may proceed with criminal or civil enforcement or both as set forth below. Such action may be taken with the assistance and concurrence of the County Attorney. D. Revoking and Withholding Building Permits. 1. In the event that either an Enforcement Official has personal knowledge of any violation of this Land Use Code or the adopted Building Code or other regulations set forth herein, they shall revoke any building permit that has been issued for improvements of the subject property where the violation is known to exist. 2. In the event that an Enforcement Official has knowledge of any violation of this Land Use Code, the Building Code or other provisions of this regulation, no land use approvals or building or other development permits shall be issued with respect to the property where the violation is believed to exist during the period of such violation. The Board of County Commissioners may suspend or revoke any existing land use approvals for the property where the known violation exists, subject to conducting a properly noticed hearing where such hearing would be required for the land use approval that is the subject of the revocation, following the same process and notification required to obtain such original approval. E. Withdrawal of Development Permit. If an activity or development permitted by a development permit is not operated in strict compliance with the terms and conditions attached to that permit, that development permit may be withdrawn utilizing the same procedures and same period of notification required to obtain the original approval for such development permit. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-3 • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-103 ENFORCEMENT PROCEDURES F. Forfeiture of Vested Property Right. 1. If a Site Specific Development Plan is approved with conditions, the failure to abide by the terms and conditions of approval may result in a forfeiture of vested property right, and may result in revocation or suspension of the approval. 2. Forfeiture of a vested property right and revocation or suspension of a development approval shall be by resolution of the Board of County Commissioners after public hearing in accordance with this section, as well as the provisions of 12-107(A) concerning takings determinations. Notice of the hearing shall be published and mailed to the owner of applicable real property in accordance with that section. 3. Any hearing conducted for forfeiture of a vested property rights shall also be considered a hearing for final determination of any allegations or claims concerning a taking of property without just compensation and such claim shall be resolved under this section, as well as the provisions of section 12-107(A), concerning takings determinations. G. Criminal Enforcement. Should the noticed violator fail to correct the noticed violation within the required time period, an Enforcement Official may request that the Garfield County Sheriff issue a summons and complaint to the violator stating the nature of the violation with sufficient particularity to give notice of said charge to the violator. In all respects, the Enforcement Official, together with the Garfield County Sheriff, shall comply with the provisions of §30-28-124, C.R.S., as amended. H. County Court Civil Penalty. At the election of the Garfield County Attorney, Garfield County, acting through an Enforcement Official, may elect to pursue remedies under either §30-28-124, C.R.S., as amended, or §30-28-124.5, C.R.S., as amended, seeking imposition of criminal penalties, civil penalties or both. In the event that the County Attorney elects to follow the provisions of §30- 28-124.5, C.R.S., as amended, the officials of the County shall comply with the provisions of that section. 1. Civil Enforcement. Notwithstanding the listing of enforcement powers in this article, and in addition to those powers, in case any building or structure is or is proposed to be erected, constructed, reconstructed, altered, or used, or any land is proposed to be used in violation of this Land Use Code or.in a manner not specifically permitted by this Land Use Code or the adopted building code or any GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-4 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-103 ENFORCEMENT PROCEDURES amendment of such documents as enacted by the Board of County Commissioners, the County Attorney, in addition to other remedies provided by law, may institute a request for injunction, mandamus, abatement or other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful erection, construction, reconstruction, alteration, or use. The County Attorney may proceed with such civil enforcement after authorization by the Board of County Commissioners. Such action by the County Attorney may include any request for declaration and relief under a Subdivision Improvements Agreement. J. Subdivision Enforcement. In addition to any other enforcement powers set forth in this article, the Board of County Commissioners shall have the authority to bring an action to enjoin any owner, subdivider or agent of a subdivider from selling land before a Final Plat for such subdivided land has been approved by the Board of County Commissioners and recorded with the Clerk and Recorder. Additionally, the Board of County Commissioners or any purchaser of any lot or parcel of land subject to a plat restriction that is part of an approved subdivision and subject to a Subdivision Improvements Agreement shall have the authority to bring an action against a subdivider or agent of a subdivider to compel enforcement of any Subdivision Improvements Agreement on the sale, conveyance or transfer of title or any other provision of such Subdivision Improvements Agreement. Such authority shall include the right to compel rescission of sale, conveyance or transfer of title of any lot, lots, track or tracks of land contrary to the provisions of any such restriction set forth in the plat or any separate recorded instrument and shall include the power to vacate any approved plat as such plat concerns any property that has not been conveyed to ownership separate from the subdivider or subdivider's agent. K. Areas and Activities of State Interest. For any area designated as a matter of state interest or for conduct of any activity designated as a matter of state interest for which a permit is required by this Land Use Code, the Board of County Commissioners may seek to enjoin any development in such designated area or designated activity by any person who has not obtained such required permit. Section 12-104 Penalties. A Criminal Penalties. Any person convicted of violating any provision of this Land Use Code shall be guilty of an offense as set forth in §30-28-124, C.R.S., as amended, and shall be subject to all fines and penalties as set forth therein. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-5 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-104 PENALTIES B. Civil Penalties. Any person found to have violated any provision of this Land Use Code shall be subject to the imposition of a penalty as set forth in §30- 28-124.5, C.R.S., as amended, and the property that is the subject of the penalty shall be subject to the lien set forth therein. C. Civil Cause. Any person found to have violated any provision of this Land Use Code, any conditions imposed pursuant to this Code or any agreement required by this Code, shall be subject to the payment of all costs, fees and expenses incurred by the County in abating such violation. Section 12-105 Inspection. The Enforcement Officials and County staff under their supervision are hereby authorized to inspect any lands, buildings or improvements to determine if such are in compliance with this Land Use Code or any adopted building code. Any official performing such inspection shall abide by all laws of search and seizure as set forth by federal and state statutory and constitutional provisions. Section 12-106 Mergers of Lots or Parcels. A. General. The Lots/Parcel merger procedure is a one-step review procedure to comply with the requirements of § 30-28-139, C.R.S., as amended. All mergers of lots or parcels shall comply with the following procedures and standards unless the subject lot or parcel is part of a platted and approved subdivision. In that instance, approval of the merger of an approved lot or parcel shall comply with the appropriate subdivision process set forth in other provisions of this Code. Notwithstanding any other provision of this section, the requirements of subsections B(1) and B(2) set forth below shall not apply to any merger of lot parcels of land that are requested in writing by each owner of an affected parcel. Nothing in this section shall be construed to abrogate or otherwise diminish or expand any rights a land owner may have under Article 68 of Title 24, C.R.S. or § 29-20-201, et seq. C.R.S., as amended, or any other provision of this code concerning vested property rights. B. Procedure. 1. Prior to the merger of two (2) or more parcels of land for the purpose of eliminating interior lot lines, obsolete subdivisions or otherwise, the County shall send notice of the County's intent to complete the merger to each owner of the affected parcel by certified mail. The notice shall also specify that each owner may request a hearing on the proposed merger pursuant to subsection two (2) below, and shall specify action to be taken by such owner to request such hearing, including without limitation the requirement that said owner shall request the hearing within 120 days of the notice required by this subsection 1. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-6 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-106 MERGERS OF LOTS OR PARCELS 2. Where each owner of an affected parcel has timely requested a hearing on the proposed merger satisfying the requirements of subsection 1., a public hearing on said merger shall before held before the Board of County Commissioners. The hearing shall be conducted for the purpose of allowing the Board to discuss with the owner of each affected parcel its reasons for proceeding with the merger and to give each owner the opportunity to submit any basis provided under the law for challenging the merger. The hearing shall take place no sooner than ninety (90) days following the date of notice required under subsection 1. Where the owner of each affected parcel does not timely request a hearing on the proposed merger satisfying the requirements of subsection 1, no hearing is required and the affected parcel shall be merged in accordance with the requirements of this section. 3. Where a hearing has been duly requested pursuant to subsection 2., notice of the time, place and manner of the hearing shall be provided to each owner of the affected parcels thirty (30) days prior to the date of the hearing and shall also be published in a newspaper thirty (30) days prior to the date of the hearing. 4. No merger of parcels that are the subject of a hearing before the Board of County Commissioners shall be effective unless the owner of the parcels has given his/her or its consent to the merger of said parcels; and the merger has been approved by a majority of the Board of County Commissioners. 5. Upon completion of any merger of parcels in accordance with the requirements of this section the County shall file a record and notice of merger with the Garfield County Clerk and Recorder and such notice shall constitute prima facia evidence that all of the requirements of this section have been satisfied. C. Application to Assessor. 1. The provisions of this section shall have no application and shall not be binding upon any decision of the Garfield County Assessor to merge parcels for purposes of valuation by that office. 2. The merger of parcels for the purposes of valuation and subsequent property taxation shall have no affect and shall not be considered as binding or precedential to any decision required under this section concerning the merger of parcels or Tots. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-7 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-107 DECISION REVIEW Section 12-107 Decision Review A. Takings Determinations. 1. General. A property owner who is an applicant for a development permit, a land use change, subdivision approval or recipient of notice—of—potential violation who believes they are adversely affected or aggrieved by a determination by an Enforcement Official, the Planning and Zoning Commission or the Board of County Commissioners and who believes or contends that the determination by any of the above referenced individuals, agencies or commissions constitutes a taking of all economically beneficial use of private property without just compensation in violation of the United States or Colorado Constitutions or a taking of a vested property right, said property owner shall, as a pre -requisite to any appeal, defense of or judicial review of a decision, request a hearing pursuant to this section before the Board of County Commissioners. 2. Process for Appeal. An application for a Takings Determination shall be submitted no later than fifteen (15) days from the date of the decision that the applicant believe constitutes a taking of all economically beneficial use of the property or taking of a vested property right_, that notice. Within forty-five (45) working days of the receipt of a written request for hearing, pursuant to this section, the Board of County Commissioners shall conduct a hearing and within fifteen (15) working days after such hearing, render its decision. The hearing set forth above shall be conducted as an open public meeting, properly agendaed at either a regular or special Board of County Commissioner meeting. Prior to such hearing, the Board of County Commissioners shall provide written notification to the applicant of such hearing, which written notification shall be tendered to the applicant at least three (3) calendar days and not more than ten (10) calendar days prior to the date of such hearing. Such notification shall be tendered by either personal service of notice or mailing by certified United States mail. 3. Applicability. In the event that a petition is submitted under this section, the Board of County Commissioner determination on the GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-8 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-107 DECISION REVIEW underlying petition shall not be considered final for purpose of judicial review until the Takings Determination to be made under this section has been decided by the Board. 4. Standards. The Board of County Commissioners shall determine whether the property owner will be denied all reasonable use and economic return or will be denied all use of a vested property right as a result of the questioned determination. If the Board of County Commissioners determines that a Takings pursuant to that standard has or may occur, it shall take such action as it deems appropriate to remedy the situation. In making its decision, the Board of County Commissioners shall consider the value of the property as a whole or the existence of a demonstrated vested property right. In making its determination, the Board of County Commissioners shall consider the beneficial uses that remain in the property, notwithstanding the challenged determination, and shall give due consideration to the reasonable investment expectations of the landowner, unless such claim involves a taking of a vested property right. 5. Relief. In the event that the Board of County Commissioners determines that a taking of economically beneficial use of private property may have occurred or that the owner may have suffered the taking of a vested property right, the Board of County Commissioners may award relief that would be available pursuant to the Land Use Code. If such relief requires consideration at a public hearing, the Board of County Commissioner shall establish such hearing with appropriate required notifications. The Board of County Commissioners shall determine who shall bear the cost of such notification for any required public hearing based upon equitable considerations. 6. Qualified Experts. The Board of County Commissioners may, in its discretion, seek the assistance of qualified experts in evaluating the information submitted and the opinions of the property owner regarding the alleged taking. B. Regulatory Impairment of Property Rights. 1. If a land owner elects to file a notice of Regulatory Impairment of Property Rights pursuant to the provisions of § 29-20-203, C.R.S. as amended, the Board of County Commissioners shall consider such notice, rendering a decision as required by §29-20-204, C.R.S., as amended, at a public meeting within the time frame required by that section. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-9 • • ARTICLE XII ENFORCEMENTS, VIOLATIONS, PENALTIES AND APPEALS 12-107 DECISION REVIEW 2. If a landowner elects to file notice under § 29-20-201, C.R.S. as amended, Regulatory Impairment of Property Rights, consideration of that notice shall be a final determination under the provisions of this Article with no further or additional right to appeal to the Board of County Commissioners concerning a decision of the board concerning that landowner's property. Any decision rendered under § 29-20-204, C.R.S. as amended by the Board of County Commissioners as required by that statute shall be considered final for purposes of subsequent judicial review which review shall be limited as provided by that statute. C. Appeals 1. Board of Adjustment. a. The Board of Adjustment will consider appeals of administrative interpretations entered by Enforcement Officials consistent with the provisions of Section 1-303. b. The Board of Adjustment shall hear appeals concerning requests for variance to the Land Use Code consistent with the provisions of Section 1-303. 2. Board of County Commissioners and Planning Commission. Appeals from final decisions of the Board of County Commissioners and the Planning Commission shall be conducted pursuant to appropriate provisions of the Colorado Revised Statutes and the Colorado Rules of Civil Procedure. 12-108 Parties in Interest. For the purpose of determining the ability to seek judicial review of a decision resulting from a quasi judicial hearing, the parties in interest who may seek such review shall be limited to those individuals or entities entitled to receive written, mailed notification of the hearing that led to the contested decision. Although all individuals or entities may participate in a quasi judicial public hearing, only those individuals and entities shown by the record of that proceeding as those with a right to receive such written, mailed notification shall be recognized as parties in interest for the purpose of any subsequent judicial review of the action emanating from such hearing. GARFIELD COUNTY UNIFIED LAND USE RESOLUTION OF 2008, AS AMENDED 12-10 1 • 10-13-2009 Work session minutes Code Enforcement Issue b a EXHIBIT Article 12 and how we deal with non -conforming uses within that same structure. I am going to focus on Article 12 stuff with the help of Cassie and Don will help with the non -conforming use component. There is some background that is helpful for discussion. Power Point — was handed out by Fred. Article 12 was printed out as well. Today we see the current challenges for Article 12; there is the question of the 3 -day timeline for a potential violator to respond to the County. That is one major issue. There is the issue of the initial takings process as it is applied in Code Enforcement, when and how that happens. There is the question of the tendering of a land use application to really cure or not cure the issue or not cure whatever the issue is — is that have a real place within this framework. This is the question to keep in mind as we go through this. Finally, the BOCC involvement within the context of Code Enforcement actions and when the timing of that has to happen and should happen. Those are the main things I want to cover. There is a piece at the end that shows in our view what the code enforcement activity is within the County. Very quickly, I will cover this. Currently, Article 12 reads like you will see illustrated here so staff has knowledge of the violation however that comes in, it comes in a variety of ways maybe it is a building inspector that sees something, a citizen who calls in and say there is an issue, but it is brought to Chris' attention ultimately. We then act on it since we have the knowledge. Then, Chris would issue a notice of anticipated enforcement; at that point, you have 3 -days at this point, if you are the alleged violator, before something happens. During those 3 -days, you can file with the County this takings application and go down that route. If you do that, you stay the next section until this takings hearings runs its course. If you don't Chris automatically issues what is called the notice of violation. The first letter says, hey we think there maybe something wrong here, the notice says there is something wrong here. What happens next is you have a 10 -day period .... Commissioner Houpt — Notice of alleged violation that is 3 -days before you get the actual notice of violation. Is that an extra step that ...... questions later. Fred — in this 10 -day period a number of things can happen, 1 listed in the slide as you are seeing it. Some of these things can happen at any time, but logically these are where these things tend to fall. All along, a potential violator could say, whoops, sorry, I will fix my problem, no problem. That is the fix it box. Commissioner Samson asked if this happen the majority of the time. Fred —Yes and I will get to that. There are many things that happen behind the scene that you are not aware of. Then there are these administrative remedies or processes going to the Board of Adjustment or the Board of Review to say, we would like to seek relieve that way. That is a legitimate process within your code for you to do that or there is this concept of let me just tender a land use code so I can get approval from the County to do what I am doing out there. That can also happen anytime also but most of the time when that get that main letter, they know the county is serious about what the issue is 1 typically. In some cases, it forces them to react. Not always obviously. Then what happens, there is a delta, a decision point and at that point, your staff and it is where the Board becomes involved. So all of this, up until this point, the BOCC does not have any involvement. The only time is when the land use application for whatever that is reaches you. In this case, once you hit that delta point. There is the seeking of civil penalties in County Court and then there is also the BOCC box where it comes to you through Cassie and the Board determines let's go ahead and go to district court and seek an injunction. Or you as a Board decide not to enforce your land use code which you have done in the past, the final box in the bottom that says let's wait, we know we have we have an applicant that is in the course of either trying to get a land use approval or go to the BOA or BOR and let that carry through its process. Generally speaking, this is the framework that is written in Article 12. Now, recently as we have used this we have found some problems or areas of concern that we call them. First is this issue of the notice of anticipated enforcement in this 3 -day timeline for an applicant to react. As you heard the other day when Chris Coil came to you with one of the clients that he had, h talked to you about these timelines being very quick, we tend to agree from a staff perspective that this is too quick for an applicant to react with any. legitimacy. The second component that is tied to that is within those 3 -days the avenue available to the violator is this whole takings world. For them to put together a legitimate takings application within this short period of time and get it to us, is problematic — they do not have enough time to To it. We do not disagree. Finally, on here is this tender this land use application and that is real problematic because it is one thing to say, well, just get an application into us for a professional office and then we will let it run and it will be before the BOCC. The problem with that is there are no sticks to keep moving along within that process. You cannot force their hand to tender the application to begin with, you cannot force their hand to make it technically complete, and you can ride that out forever, for years in some cases. That is never the intent. That is why Iput in quote "to cure" — it really is not a cure and it is not until you as the BOCC as the decision maker makes that call. But getting them to get to you, if there is no fire burning on the other end, they are not going to do it. So there is no stick and it limps along in the process unless they really` want to pursue it. That is our experience. We do not see this as a cure. It is a way to deal with it, but it is difficult. It is not a guarantee. Some are hesitant to press it because I have been getting my business out here for 5 -years, I do not want to go to the Board because they may say, no, and so what is my fire to get it to the BOCC. There is a lot of that. Cassie — What we have talked about, they are continuing to violate the code during this time, and it is not that they have ceased the use and then a process and an application — that is the problematic. They could process anapplication anywhere in here; it is really the continu8ing of the violation during the process. Fred — Those are the main areas we see so we would say a way to look at this. At the top left, drop out that NOA completely so it eliminates the first, hey we think there may be an issue, second thing we propose to do is drop out the takings application, takings component completely here and in its place, on the screen, let's take the time as a county to really do more robust investigations so that when we do put the trigger on that letter that goes to that potential violator, we have done our homework and the burden Is on us that there is a problem. Some cases it may mean th- - e work that has to be done, in any event, before we sort enact Cassie and the County Attorney's office we need to make sure th -have enough -to go on tore fly e - o . is a wort while endeavor and we think this proLess up front making this investigation more involved will do help do that. Finally, dropping that notice en eying a land use application, again for all the reasons we mentioned before. Then the process would look like this — the rest of it (on the screen) really stays the same, you cannot drop out going to the BOA or the BOR, those are avenues they can go to anytime. They can fix their violation anytime and they can also tender a land use application anytime. That did not change for the authorities 2 • • that you have as a board as the final decision maker on what the CA's office will present to you ,,,/ oftentimes in Executive Sessions. Civil penalties along with these three lower options. -v7 Press for an injunction in District court, you chose not to enforce the code, or you want for these t administrative remedies and what Cassie will explain to you in some cases it will be in addition to them tendering a land use application because otherwise there is no stick to keep them moving along with their application, whether it is the BOA or a regular land use application before the BOCC. You want to preserve your right with the possible ability to enjoin them through court — you hold that out there saying yes, the County is serious, it is taking its action and if they keep moving along as they are ) supposed to with the land use application or the BOA, then you do not put the trigger on them totally on this court action, but you could. That is the hammer we see as keeping them moving along. Otherwise I do not know how else to do it because they become hollow threats really. Commissioner Houpt — If it is an administrative application that they need to file, is that part of the fix it box? Fred — No. The fix it box is for them, let's say they have something in the setback, they immediately pull that thing out of the setback. That is the fix it. They comply with the code. Otherwise, they will want to change the rules or how the County views what is in the setback. That is the land use case. Commissioner Houpt — What if it is not a setback issue, what if it is something that falls within the purview of our code but they did not have the proper paperwork in place? Cassie —That falls out when I would come to you as the Board and say what do you want to do in this case. What they really need is a permit. Do you want to file a complaint? They received a letter and the notice of the violation and they are aware that they have this issue. Commissioner Houpt—That seems like it would be an easy fix it thing it if is administrative and that was the whole point of having an administrative component in our new land use code or the expansion of that so that you would not have to take it to us but you can take care of it yourselves. Chris — On the horizon that I have not fully — giving the person the opportunity to do something about this — it is administrative. Talking about the guy that owns the car shop, it is an administrative issue permit from our department. The gentlemen has illegally placed sign, he was upset when I told him he needed to get a permit for this sign, I gave him a couple of days to come in and do that, on top of that you are advertising the commercial operation out of your home. You need to do this and this and you need an administrative permit. He was livid at having to do this — how can I afford to get a commercial space if I cannot run this business from my house. You can through the permitting process. It is just an application; give it to Fred, Fred reviews, Fred issues. I was mind pissed off— guarantee I will have to chase this guy. So that is .... Commissioner Houpt — So everyone would have that opportunity to comply first before you filed then. Cassie — Well, anytime they could do that, because it would cure the violation one way or the other. And so if they did it within that 10 -day timeframe they tender an application they have, there will not be any action. If it is something that we feels needs to be enjoined through district court, I would come to you all and say this is what is going on and really all he needs is this paperwork. What do you want to do? Or we can file a lawsuit in county court and then when he actually comes in, the statute does require I dismiss the lawsuit before we show up. So he can still cure the violation even if we are in court and then there would be no repercussions to him. 3 • i Commissioner Houpt — I wanted to make sure we take this box away is that they would have that initial opportunity that you were describing Chris. Chris — It is a simple, easy fix, but there are people who will not do it. Commissioner Houpt—They are going to choose their path when they do it. Fred —They do and that is why I was holding that example out — that is a good example Chris where in Cassie's view and I agree with it, that is truly the only hammer for those scenarios even though they have these administrative remedies they can pursue it is in the interest of the county that they pursue those one way or the other rather than let them fester and linger with no resolve. Chris — It is a small percent of people who are just going to say, no, no, no until the judge tells them yes, yes, yes. Even in that case the judge sometimes does a contempt because they tell the judge no. So it is not a simple task to do enforcement with that small group of people but we have to do something that works for them. Fred — To that sedgeway, the last piece of slide and I am done here. Of using this slide, of those that we see in Chris' experience and it is true prior to Chris, about 30% are within this first section whre they get basically a phone call if not some kind of site visit with Chris and they work through the issue and it is a non -issue. About 30% fall within that category and that is as far as they go then the world is good again. More interestingly is the next section about 60% fall to the point where they have a letter from Chris from the County and they recognize they have a series of options they can chose that do get resolved. That is the point of this box. 90% of everything that Chris deals with and we can furnish you with a list, it is interesting to look at, but in any event, it gets you to the delta point. 90% of them and then you have the 10% that land in front of you. Commissioner Samson — 10% - give me a number now. How many cases are you dealing with a year? Fred — There is another piece to that Mike, of the 10%, Cassie — Of the 10%, we have never actually had a trail at all. We had our preliminary hearing in one case and then settled it after that but looking at my own workload it is probably 2% that actually go before a judge in some form and that is right in line with general litigation nationwide. That 2% actually going through the process. And in the entire 1%2 years that I have been here we have not had a trail except the case where we were the defendant where we got sued and even that ended in summary judgment. So we are not going to trial on these cases continually. They are getting resolved one way or the other even within my 10% that I have either come to you or we have filed in County court for civil penalties. Commissioner Samson — I was just going to say, we never go to court then we do not have to Cassie anymore do we. Chairman Martin —We better keep her. Commissioner Houpt — It is because of Cassie we .... Fred — Hopefully this puts some context to it and so you have the text in front of you and a couple of suggestions. Chairman Martin —The suggestion that I had and came up was a four -step process, which I had written down before you put your stuff up. 1) understanding that Chris has a tough job to do and so do you and 4 • • so does Cassie and so do we; 2) but when we get a complaint, using the old approach and as we verify that complaint which you do, you take the information down as Chris has done from the person who reporting the violation, 3) Chris goes and does his preliminary research to make sure it is a valid issue and what have you; 4) within that 10 days you notify after he verifies and give him time to do something and he notifies the property owner of the alleged violation and why it is a violation which then gives that 10 -days to respond to it and if he does not there is a notice of violation with a list of remedies and if it fails to follow that within the 30 -days, then you file a complaint. Real basic, real easy, step by step process and that is what we always did and that is working with the people. Chris — I have to act upon what I have heard about. Chairman Martin — Exactly, instead of having a 3 -day period or a 1 -day period in having to respond. It gives him time to organize his files, do his research, make sure he has a legitimate complaint, notifies the property owner, has a 10 -day period to cure the problem because of alleged violation cause he has one his research and said this is what the violation is, if he fails to do so, a letter of violation which is a 30 -day later letter of correction or violation goes by, they either correct it or not. If they do not you file with Cassie, violation goes forward. Works with everybody, every step and it has a cure. It is pretty close to what to you are saying. Fred — It is almost identical to this, where it is different in the boxes. What John is saying at the cursor, there is an initial 10 -day that we have a timeline of staff to do something. Chairman Maritn — I think we need to give him time is what I am looking at. Fred — There is no timeline on this one, which I thought was better because it give Chris more time and does not put the pressure on the applicant yet. Chairman Maritn — Except that causes again the tension on the person who complaints and that person that complaints and put that issue forward is not getting any satisfaction or action within that 10 -days. Commissioner Samson — I am assuming anytime you get you a complaint, you get it taken care of within 10 -days. Chris — Sometimes it is in a timely fashion but some drag on a little bit — 60% of people who call in and complaint about their neighbor, 60% of those call me back and say why is it not fixed, what is going on. I say, I am the only guy, I have 50 cases around my elbows and it is going to take me time and I can passive them for a while, it gets done but there are some people who are very pushy. Commissioner Samson -So is it better for you not to necessarily have a time limit there? Chris — That is what I would prefer. Chairman Maritn —As long as you are able to contract the complaint that is fine. What I was saying you are looking at 3 -days and you have to act within 3 -days and the guy has to respond. That is way too fast for them and you. Fred — agreed. Chairman Martin — So if you had that flexibility to be able to manage it and take that complaint, investigate the complaint at least, get back to the person and say this is the action that I have taken, 5 A notify the property owner of the alleged violation, again the timelines starts going again, and then you have action on three fronts. Fred — I think this gets you there John. This is not hamstringing Chris because he really does a good job at talking to both of those parties. You do have the complaint in here. Commissioner Samson —The practical thing about this it the same thing we run into, is somebody calls me about some nitpicky thing and I start on it and the next call I get is that, hey this guy has turned in 50 tanks and its down there and I call you guys and talk to you guys and we kind of drop the little thing that I think his fence is 2" over. Well, you know we will get to that when we get to that, because we have bigger fish to fry right now and that is flexibility. Chairman Maritn —That is the flexibility that we need to build into Chris. Fred — That will do it for Chris to have that. Then there is one thing for Cassie to comment on. There are some statutory perimeters that we cannot ignore particularly on timelines and I am not the one to talk about that. Cassie —the 10 -days for responding to that will be a statutory. Chairman Maritn — IN the Colorado Revised Statutes? Cassie —Yes. In the statutes. Fred — That is the 10 -days you see right there. Cassie — 30-20-124 Chairman Martin — If is it in violation of the code. Cassie — Yes — 10 -days after the notice of violation, the exceptions are they have 30 -days. The notice of violation is considered a final decision that can be appealed to the BOA and they have 30 -days to do that, so that they have the 10 -days to actually cure the violation but they have 30 -days if they are going to appeal the decision. So that is why what we are proposing is essential nothing would happy for about 35 -days to make sure they have not appealed. Commissioner Samson — But they can play a game too. They will say, I've got 10 -days but if I tell them I'm going to the BOA, they will give me 30, on the 29th day I go well I'm not going to the BOA so now — they play the game. Cassie — And we are seeing that with that takings process that it is a game playing going on right now saying I'm going to have a takings hearing and then withdrawing their application after it has been scheduled. But I think they need that remedy. That is also salutatory that we have a BOA and that it hears final decisions and appeals and that is their round and that is what they are required to do, so we do have to leave that provision in there whether it is used for game playing. We have not seen that. I have not seen anybody appeal any of these notices to the BOA. Commissioner Houpt — I think your proposed adjustment makes sense and looks good. Commissioner Samson - It looks good to me. 6 • • Don — A couple of comments on some issues that I have seen and maybe would still be there, I am not aware of any automatic stay of matters to appeal to the BOA or the BOR so technically Mike, your question when someone appeals to the BOA, we can still proceed with enforcement as we would otherwise. Now, in the rare case and I'm only aware of two since I have been here where someone took one of the notices to the BOA, the Board itself has said we do not want you going forward with enforcement pending a decision by the BOA but there is no requirement that it occurred and there is no automatic stay. I kind of encourage and think it is a good idea actually in terms of the pending application but even so, again there is no automatic stay of enforcement if an application is filed. There is not know and there certainly would not be if you took it out of the process, so someone can file an application and continue the process but from my perspective our office would continue to prosecute an enforcement action and that raises a couple of questions. If you want to have the ability to stay enforcement during a pending application and we talked about this in staff meeting, my perspective e is that I think you should have some standards to guide you and the staff on when you are going to say okay if you file an application we will hold off enforcement versus others where you would say, go ahead and file but this one is too serious or too big a danger or whatever and it have to proceed. In the past, it used to be a problem and maybe it is not know, that someone would file an application while a violation enforcement action was underway, the Board many times used to take the position, we the Board, will not consider an application until you correct the violation. In other words, we will not consider an application to give you a land use permit of some kind to legalize what was an illegal use; you have to stop it first. I do not know if that still something you want to consider or not. But that used to be the position of the Board. I guess the last thing I want to mention and have several times to the board and that is on this takings issue, it is a unique process, I think there is some risk although be it minimal by taking that out of the loop and 1 guess you have to balance the abuses of that system versus any risk to the county. We have seen only one case in this county where that issue was raised as you know, a takings because of a notice and we prevailed on that case. That is all I have. Chairman Martin —And a couple of those issues in reference to the stay, we have seen many of those if we took the position that we would have cure before we accepted the remedy, it is extremely costly. You are talking millions of dollars in some cases in reference to applications such as the placement of a compressor and what have you that has been there in place and we are going to tell them to take it all off and what have you to cure it so they can put an application in. I think we would see a larger case in court in reference to those kinds of things. I think we need the flexibility to have common sense to say wait a minute — there is a violation here, you are going to pay double the building fees or whatever it is, you are going to put the application in, we are going to have the scrutiny, it is going to come before this board and then go, but if they refuse to do so, then we have a true violation and we can go forward with that violation for failure to follow the code. But I think we need in this Board to make that decision. Commissioner Houpt — But 1 think that if that is a part of this process there have to be very strict timeframes on this and we have done this in the past, we have to allow the staff to identify mitigation that has to happen immediately. Not necessarily tearing out the compressor station but putting sound screens in. Chairman Maritn —You need flexibility to allow to have that stay. Either in your scenarios you still have to have flexibility. You still have to be involved and that is what I am saying we need to be able to debate that issue and to listen to the remedies of fixing it and not just say you have to remove everything and start your application no matter what it is in that respect. If it is a safety issue, if it is a health issue that is extremely dangerous, we need to have that cured immediately before we go forward. I agree with that. So, those are the call that Fred gets to say this is extremely dangerous, this is an extreme violation and it is endangering the safety of the individual or whomever the neighborhood — we need to take 7 • • immediate action — I grant it. But to say that you need to tear down such as OXY's temporary facility — they have been using it for 3-4 years, to cure that they came into make an application for a permanent structure as well as attaching a permit to do a temporary. Not that is a stay basically in reference to the enforcement of the rules and regulations and we heard that as a practice. We are trying to work with those folks and say there is a violation and this is how you cure it. That is what Chris is bringing, that is what you are bringing to us to make that decision. Instead of saying, Cassie files that, and removes everyting before you do the application. Commissioner Houpt —This raises the concern that you guys brought to us today about not having that be part of the cure, how do we figure out a system that works for you guys? Don — Let me, I have not talked to Fred or Cassie about this, what about putting in an actual process for filing a written request for stay pending administrative application of some kind. Cassie — Our concern has been it needs to be a flexible standard and the proposed process is only in the normal code violation context. If there is a public health emergency, there are other statutes that apply in this one at the end, like public health risk. It also does not apply to a pre-existing non -conforming use where they actually have 30 -days to cure. So those are the other sides of this, but as far as putting something in here that says tendering a land use application in a cure. or that there is some sort of process for that, there is certain times wher it will lea.• • -. u • • 1• - •la in: l)think where an application will be submitted that will not cure the violation. That is it just not going to do that complete job, that needs to be done out there or that staff's view that it is not going to be approved. That the application is going to require at least two public hearing, that they are not going to recommend approval of the permit process and that this is going to drag on potentially for years and if that is a remedy that is in here that everybody can avail themselves to that is just going to at no point can we go forward with litigation or at no point can we seek any remedies or get them to stop because they are tendering application after application, first for a major impact review, then for a text amendment, then for variance, there is whatever, 100 different administrative remedies and if they want to go through each one, one at a time, piece meal, we never have a decision. So that is the problem in putting that in there that everything time this can happen. Where at least if we go forward and have pending legal action going on then we can take litigation stances like we have in certain code enforcement context where we have held all litigation in abeyance. Chairman Maritn — We just moved it to a different arena for game playing. Cassie — But everything is held in abeyance while they process the application. Chairman Maritn — You still moved it to another arena to play the same type of games with the a different set of rules in reference to the legal. Cassie—These are higher. Chairman Maritn —They may be but we are doing, we are still not getting the remedy we are looking for. Commisisoner Houpt —What they are suggesting, it creates greater incentive to cure the problem. Fred — Yes, it is a bigger stick frankly and it tends to — people view it that way. Chairman Maritn — I would not, I would challenge you. I would make it a matter of principle at that point. 8 r • Cassie —And people have and we have seen that. Chairman Maritn —There is and that is what we are tyring to avoid. Commissioner Houpt — So you are part of this 10% John. Chairman Martin — Because I would challenge the system because there are too many issues to be again, what we are looking at is strict enforcement, strict letter of the law, etc. and it goes against the grain of most of the people that have been here. If you are going to have flexibility, work with people, one to one, you are going to get better compliance — I am telling you on that 10%. Commissioner Houpt — But that is what they are saying, that allows them to do. This allows them to do that, because taking this square away. Chairman Martin — I think taking it to court and what have you, does not cure the problem. Chris — We also have to be very consistent — We cannot treat different people differently. Chairman Maritn —We do every day. Chris — It does not work, we have to be consistent. Chairman Martin —I understand that. Chris — If I have to be very selective on who I say you can't build here but you can build there, I lose all credibili Chairman Martin —That happens every day. There is no way that we can make people be absolutely the same and be treated the same, there is no way. Chris — We have to try as hard as we can within reasonability because if you guys, you did a pretty good job with this, this is how we treated it, this is how we treated everybody else. Chairman Maritn — Even in the court system, there is flexibility that the courts have and I am just saying it is human nature and it will be an argument that will go on forever. But what I am saying is, I think instead of being the strict Pitkin County approach, that there has to be the letter of the law, that we need to be Garfield County with our own rules and regulations, have flexibility, have one to one relationships and get compliance with that 10% that you are working on instead of beating them over the head with a hammer and taking them to court it to go ahead and yes it takes more time. Commissioner Houpt — In all fairness, we are talking about, they have flexibility, the staff has flexibility to work with people who are in violation. A person in violation makes the decision, they are in control of making this decision about whether it ends up it ends up in court or not, they can work with the staff in this process and this process allows the staff to have that flexibility to work with these folks but if they do not want to work with them, then our staff has to have the ability to enforce that violation. Chairman Martin — I do not disagree one bit, and that is not my argument. My argument is, is the stay, you have to have that stay in the mix to be able to go ahead and to remedy it without going straight to court and try to stop everyting in-between or have them remove it. The stay is what I am talking about. Chris — There is not an automatic stay between the BOCC and all the court related items. There is a period of time that Cassie can tell you what it is. 9 r • Chairman Maritn — And that is what it is and we need to make that decision. That is what I am saying — we need to make that decision on the stay and be consistent and take that responsibility and make those findings of why we are putting that stay or if we don't have it to give Cassie go ahead and do what you need to do in court. Chris — Are you still talking about every layer of the big multi-million dollar? Chairman Maritn — I am talking about the 10% that are not going to comply with you. Fred — Right. Chairman Martin — 90% of it is already cured and that is what my argument is and that what Don has brought up in statutory there is no automatic stay. We need to have a step in there to be allowed to do that. Chris —A guy who willfully started a constructor's yard in an area he knows he is not allowed to but has not been caught, I caught him a year later does he get to have the stay he knows he did that illegally willfully. He knows he did, they will never catch me over here, I catch them, do they get to keep being in violation? Chairman Maritn- The burden of proof is to prove the intent was to get away with it and that falls upon you and Cassie that it is an intention act to violate that — that burden of proof is on you. What it amounts to is he is following what his neighbors did, what he has done in the past and he says, wait a minute, this is my acreage, I should be allowed to do that. Then it is up to us to say, his is what the code is, this is what is allowed. Chris — When he bought that land, he should have checked to make sure he could do that. Chairman Maritn — It is due diligence in reference to selling a piece of land is also on the person who sold the land to tell him what the disclosure is and if he has not mineral rights, hazardous waste, etc. Chris —Does the burden fall upon us. Chairman Martin —We have again people that do not disclose everything. Chris — Of course. Commissioner Houpt — We should not be paying that.... Chairman Martin —That is whre the flexibility comes in and again I am saying we need to do as a board have that understanding and work with the people and get the remedy that you are seeking and not just go to court every time there is a violation of the code. Commisisoner Houpt — Well if you will notice, we have given authority for staff to go to court on a number of instances and they have not and to go to court. Chairman Martin — Except the expense will be with the court itself, the expense of filing with the court, notification, mileage etc. Commissioner Houpt —That is small in relation to just having it just turn for years and years and years. That takes up so much time for these folks. 10 • Chairman Martin — Look at the findings in the court and what you are doing cost wise to the court itself and to the personnel and what our cost are overall to continue to supply that court. Look at the expansion of the judgeships etc — all of that is part of the process that we are contributing to. So what I am saying is, we need to take a step back and say what are we doing to ourselves. Commissioner Houpt — Well, I would not agree with you that, I mean I do not think our staff has been using it in improper manner and what I am hearing is our staff has tried every way possible to get to this 10% of the violators and the tool that works is the threat of court and if there is nothing else that is working and we are not allowing them to have that tool, then we are overburdening them with the process that is not working. Fred — If I can add to that, one of your points John, you had talked earlier on about this issue that Mike has also raised, because Mike gets it a lot too, where there is the complainant. Everyone seems to focus on the violator. Let's all remember it is a two-way street, there is someone who does not like it, there is someone doing it — in your stay, that person out there, no matter how long that stay is or when the stay starts, is still out there saying, why are you not doing what you are supposed to be doing in enforcing your code — so don't forget about the one complaining. Chairman Maritn — No I am not. You have a process. Fred — Zoning is a protection of you against your neighbor in theory. Chairman Martin — I thought it was a tool for the individual property owner. Fred — Remember this guy out here, that is the point that you have raised and I think this process does that frankly. Otherwise, you continue to get those calls about the guy who says why are you not enforcing your rules. These are your rules. Wait a minute; the Board said do not enforce our rules. Chairman Martin — But the process, you are not listening to me either. It is identified as part of the process, and so that you are saying, we are following the process and this is one of the avenues the Board had at their ability as an avenue to cure the problem. It is identified as part of the process. This is not just at will. This is part of the cure is what I am saying. Commisisoner Houpt — I think they are saying the same thing. Chairman Maritn — Not on everyting but it is to the point that you can use it and it is identified. And you would satisfy that person at least knowing that it was a written part of the policy. Fred — Well it is tough to have both is my point. Chairman Martin — It's a tough world. Fred — That is your point so Phil — may I ask a point of MrJarman — Fred just a question on the handout that we got versus what is on the screen, is the recommendation to remove the takings application process completely from the code? Don — Let me respond. I think the answer to that is no, it is to remove the takings process as part of the code enforcement procedure. It is still there because the basic reason for the takings hearing is unique and is a strange rule in Colorado but there is still the need to have a takings hearing in a larger sense so 11 • • that someone who things their property may have suffered a taking as a result of th board's decision can actually file for a hearing, but rather than injecting it in the code enforcement process, that type of takings process would normally occur after a traditional land use decision where some applicant's request was rejected and they felt that was a taking of their property. So that is still there, that is a process that has never followed or has it never been undertaken in Garfield County but it has in other counties. Chairman Maritn —The only step would be to go to court on a 106 action. Phil — It does. It tells me that the takings process is still in the state statute, it is still afforded to a person but it is not part of this enforcement process in Garfield County — it is always available but we are not codifying it. Don — That is correct. Fred — For the benefit of those who came in late, this is where we ended up with our decision, here on the screen — the concept was this was the current practice that is written in Article 12 right now — what you are seeing. The concept was in the red where the challenger is, that the Board has looked at and the staff and in some cases been brought to us, so the concept is to drop out the NOA completely so that along with that the takings and the limit of the 3 -day timeline also for reaction happened with that which is very problematic, in its place and I should also say dropping out the tendering of the land use application too, but in its place you saw the box come up that gives staff more time to just work through one of John's points earlier so that you have this initial staff time to work with the applicant so that we do a more robust investigation so that by th time we do engage the county attorney's office, then it is a more serious case with a lot more fact built behind it, so that is what we ended up where we were. Commissioner Houpt -You know, one of the things that has been a great frustration to me since I've been a commissioner in this county is that we have regulations in place and certain companies whether it is a residential contractor or oil and gas chose not to follow them and come back and say, oh sorry we build this but we did not have this, we do not want to tear it down, or change the use, will you please forgive us and approve an application. Commissioner Samson — Does that happen a lot? Commisioner Houpt — Yes. Chairman Maritn —there is a fire department that just did that at Fairmount. Commisisoner Houpt — It happens a lot in this county and it happens a lot with accessory dwelling units, it happens a lot with oil and gas facilities, and I think if we had a process that says, no, it is not okay that you build this outside our regulations, you are going to have to compensate for doing that, then maybe people will stop doing that and they will start looking at our land use code and they will recognize that they are regulations in place in Garfield County that we take seriously. Planning Commission spent years putting together a new code. And we want to take it seriously. Commisioner Samson — So how does that happen, people do not come in for a permit at all and just build. It that how that happens. Is that the only way that happens? Fred — I cannot presume to tell yogis the property owner knows the code, knows there are even regulations, a lot of folks end up in Colorado or Garfield county from other places whre they may not have the regulatory schemes. As nationwide as you look at this county, we are pretty much regulation 12 • • light compared to other regulations and then heavy compared to others. But I can tell you I have been on site visits whre the consultant has taken me out and I have a land use application and they have taken me out and taken me to the already built site, one was a 6 -acre evaporation pond for example, so standing on the banks of an already built scenario where they are asking for forgiveness is a very strange thing to deal with but. Commissioner Samson — A 6 -acre evaporation site built by a major gas company. How could they plead that they do not know in Garfield County that they need the proper permits. Fred — It happens all the time. Chris — any county. They know they are all statewide. Different states, they know. Commissioner Samson — It is dealing with the professional organization there and you are not dealing with somebody who is just adding a room to their house, you are talking about a multi-million dollar corporation that has professional people dealing that has to know that. Commisisoner Houpt — You are in their way though. Fred — You are making a big assumption. You have to remember we are a three thousand mile county, one thousand miles of fee ground that Chris is on a complaint basis responsible for and a lot of these holdings particularly in the resource lands where we have simply no physical way to even understand what is happening on their property except for — but at some point, when they buy land in this county or they operate in this county, some of them understand and some do of understand that there are regulations in place and I think ... Commissioner Houpt — I question that. Commissioner Samson — A major corporation does not understand that. I find that very hard to believe. Commissioner Houpt — I think... Chairman Maritn —They do have to understand that there are subcontracting multi times and they do not have the direct. Commissioner Houpt — I think they do not have the respect for local regulations. Fred — Probably a lot f that. They know this county is not going and never has said, let's tear out your $10 million dollar facility we just put up. So they know that, so they will call your back. Commisisoner Samson — I know that but what I am saying, what has always been in the past the remedy has been forgive, no penalties? Chairman Maritn —Yes, there are building penalties and fees etc. Commissioner Houpt — Small. Fred - If it was a structure that was built then we will double their permit fees. 13 Commissioner Samson — Let me use a scenario with Williams that had the two wells within the PUD at Battlement Mesa. And that happened 18 years ago. A mistake was made by someone probably the planning staff I do not know. But it was 18 years ago. I understand I can forgive that, whatever. But I can't forgive someone who comes in and builds a multi-million dollar whatever without any preparation of coming before this county and saying hey is this zoned properly? Can we do this and in doing so we realize that, we have to have the permits. If that has been done on a large basis that makes a mockery of the planning commission as well as your department. Fred — It happens all the time. Commissioner Samson — It happens all the time. Commissioner Houpt — Then that is not right. Chairman Marin —And some of it also deals with the permitting process from the federal government as well as the state of Colroado thinking that is as far as it will go because they control that oil and gas commission. Commissioner Houpt — I think they smart — they are a more intelligent industry than that. Fred — Most of these companies have their own permitting departments. Commissioner Houpt —They have permitting departments, they have legal staff, and there is no excuse. Commissioner Samson — What is the use of having a planning code and what is the use of having a planning department and here again, let me reemphasis, I am not talking about the farmer out there that is just putting on a new addition to this house. I am not talking about that guy. I am talking about people who are professionals that deal with these types of things and 1 would expect them especially if they have their own planning departments, to know those things. Commissioner Houpt — Not only that but when I was talking about accessory dwelling units, I was talking about local contractors who build those units for people and then coming back in and saying, oh we changed the use and if you drove by that construction site you knew the use never changed, they just had decided not to do the permit unless they had to and I am not, I think this does show this underlying disrespect for Garfield County's process. Chris — It is insidethe house you do not see what is going on unless someone rats them out. It is not so much the contractor's obligation asit is the homeowners obligation to get those permits or they give it the proxy to the contractor to do so, who is going to see it at the end of a cul-de-sac out in the middle of the woods, who is going to know. It is always the neighbor who rats them out but they know even living here long enough —they have seen it go on long enough. The contractor should have the wherewithal to say, Mr. Owner you are going to need a permit for this I build throughout the County and I know. Commissioner Houpt — I guess that is my point, if you are a professional working for someone to build something, then... Chairman Maritn — I've seen just the other scenario —these people paid the contractor to go ahead and get the permit and the contractor does of do so. Then the owner gets the violation. That is another scenario that you are forgetting. Commissioner Samson — Then that is real easy, you hold the contractor responsible. 14 • • Chairman Martin — Mr. Green — Larry Green —You are talking about a lot of different things here, corporate violators, individual violators, the thing that I think is missing in this discussion is that it seems to me that everybody within the county's premise is that the turns of your zoning regulation are absolutely black and white and that everybody knows doing this is a violation and in order to be within th regulations you have to do something else. And what I see happen is that is not the case. That your zoning code, you are respective of the fact that it may be whatever 500 pages long, is filled with ambiguities and inconsistencies and I think that the staff in the last few years is sort of changing its attitude about interpreting the provisions of the code. So might have been seen as in accord with the code a few years ago, now the same behavior is seen as being in violation of the code. Commisisoner Houpt — Question — with the example that we were just discussing about company building a large ancillary facility, which is what and probably looking at a chart of violations of that type, it would be an industrial issue, are we ambiguous about that in our code. Larry — I do not know the answer to that Tresi because I have never personally been involved in that issue nor have I tried to look at your code and make an understanding of what the code says, but in the areas that I have been involved in, I am continually astounded to hear that the staff interpret the language of the code to say one thing where, look at it and I don't get there. I just do not get to where = I don't get to the interpretation that the staff has gotten to and the example I can use and I do not know where the staff is on this issue, but the question I have dealt with Cassie on in one case is whether or not a person can build a fence on their property line. Or is a fence something that cannot be within setback. And as I understand from our discussion three weeks ago Cassie, that discussion within your staff's evolving and I don't know what changed in the last three weeks, but just the idea that you cannot put a fence on your property line is something totally new. You look at Garfield County and there are fences on property lines throughout the county. Property line disputes are focused on where fences are. So all of the sudden for the County to take the position that you cannot put a fence on a property line is like, wait a minute, where is that coming from. It is that kind of thing so that is an issue I focused on. Maybe there is not similar ambiguity in your industruial zone district code, maybe there is, I do not know. But it somehow to resolve these ambiguity, my view of what needs to happen in this process is to somehow address these issues of ambiguity and to give a property owner a fair opportunity if Chris comes up and says, wait a minute, the fact that you are doing such and such is a violation of the code, give the property owner an opportunity to understand what the alleged violation really is in a form to make a decision about whether or not in fact it is a violation. That is what I do not see in this process. The second thing I don't understand while I'm on my soap box is if you make a decision to enforce the words of the code who makes the policy decision that is really what we want to do, given the impact on that enforcement on existing uses and existing businesses and existing facilities in Garfield county. Again, I can point to an example. I had a client allegedly in violation of a commercial zone district because his outdoor storage is not appropriately screened. I do not know whether or not my guy's in violation of that regulation or not but if he is, every business within a mile and a half of his business is similarly in violation of that provision. Is that something that the county wants to do, is to cause individual business owners to go out and spend a fortune in this day and age, a small fortune to erect screening fences where those businesses have operated for 20-yars without fences. Who and what forum makes that policy decision. Chairman Martin — it falls on his body to make that decision. We are making the determination one way or the other. 15 • • Larry — I think so too, but given what happen, it is the county enforcement action that... Commissioner Houpt — But they are following the regulations that are in place and we adopted. Chris — Yes, the BOA so there is a process to address that specific question —take it to the BOA. Larry — With all due respect, the BOA process in your current code is a Kangaroo Court. You have to get a super majority of four people out of five votes to overturn the decision of the planning staff so you could have a quorum with fewer than four people so you set yourself up to go to a meeting of the BOA where you cannot win because of the quorum and the super majority requirements. Commissioner Houpt — Is that different in other counties? Cassie — The BOA process is statutory. Don — Larry that is not correct, a quorum in the four — four is the quorum and we could have a quorum so you have to have a unanimous decision. But you cannot take any actionunless you have at least four members there but it is a problem, I am not going to suggest it is not when you show up you have to have a unanimous decision. Although history shows you have applicants have been able to get those decisions in their favor pretty routinely. Chris — I think the trouble comes up from that Larry just in my short experience working on a complaint driven basis that company may have been working miles from their company that may have been working for 20 -years without the fencing but I got that one guy whether it be an old or new buy complaints about the mess at the storage area statutorily I have to investigate. There is not way around it and then it causes the big hooplas of why doesn't everyone else in a 40 -mile radius put up a fence because nobody complained about them and eventually I find this in the area where the neighbors will expand down the road and I'll be nabbing everybody Larry - Aside from the regulations, don't you find that personally unfair? Chris — I would not tender my opinion on this matter, but statutorily I have to act. Fred —Your comment is an interesting one, with who sets the policy. Ultimately, the policy is this Board through the regulations and the planning commission etc. IF there is a framework that someone is unhappy with and does not track the opinion of somebody, that says your point, doesn't this personally not make any sense? Well if that is the case, there is also an administrative avenue to where the change in the land use to say, no we want to be able to do all these things. That is also available. There is no one out here saying you cannot do that. So if it is such a grave situation that if we made everyone scream that it's 50 businesses then let's change the land use code to say whoops if you are out here, change the rules. The rule is bad. But for the code enforcement to wily nily and ignore the rule and not do his job, and I think there has been a culture for a long time where the eyes have not opened to some degree probably in all fairness from a staff perspective from on certain things and now we have someone who is doing their job and doing it well I would say, but there are several remedies out here if you don't like the BOA administrative remedy there is that other remedy to change the code. It is there but I do appreciate your point. You wrestle with do two wrongs make a right. Commisioner Houpt — And depending on the example of 50 businesses with unscreened storage, it might be in the best interest to have all of them cure that problem . I think that was why there was a regulation put in place and a new land use code. A lot of thought was put into why we how move forward as we are growing rapidly as a county so that we do not infringe on other people's rights but 16 • • have the ability to enjoy our land as well. It is a complicated question but if we as a Board made a determination on every single code violation in this county, it would be an impossible task. We have this great chart that shows that 30% of the people cure their violation immediately, 60% go a little further, 10% end up with the coming in front of us with the question of whether it should go to court or not. So there are people who want to comply and understand and I think people have to have an appreciation of the impacts on their neighbors as well. Chairman Martin — I think also when you have that large a majority on an issue, you have created the violators through your regulation. It is not that it is an issue than cannot be resolved, but it you have created more violators so that you can enforce it and I think it needs to go the opposite way if it's there and acceptable, if you truly feel it is something that needs to be addressed for the future, then that goes back to my other issue in reference to non -conforming land use and issues. They should be allowed to continue that. The new ones need to go ahead and comply with that if that is what your rule and regulation is but just to go ahead and pass a rule so you can create violators so that you can enforce that issue is the wrong way to go in my opinion. Commissioner Houpt — In the past we have always had non -conforming uses in this county because there were structures built or historical uses of land in place before the code. Chairman Martin — But you limit their rights by saying that you change any non -conforming use at all, you have to cease that use of that non -conforming issue. That to me is taking away somebody's personal property rights and telling them they cannot use it even more even though it was created before your code. What I am saying, it's there, it's their right to have it, they are enjoying it, they purchased it, they should be allowed to have the same rights as someone that comes in next door and builds a whole new structure and follows the new rules and regulations. That is because that is a new structure under new rules and regulations. To penalize these other people to make changes that they need for the new use or whatever it is, to tear it down to meet the new code is wrong. Fred — I do not think we do that. Chairman Martin — Under the new statutes you do. They have to cease and decease. Fred — Let's stay on this task for just a second. Chairman Maritn — It is the same issue as building fences around a storage area. Fred - Don has something prepared to talk to you about. So at least with this piece because we do want to talk to that with you about you and get some directions. Here is a proposal. This a way to go, it may not be perfect, we think it's a lot better than what we have, is this something that you feel that you like to initiate the text amendment to it and bring it to you and you can look at it formally. Commissioner Houpt— I would. Fred — It addresses a lot of issues and then we could at least move it off center. Chairman Martin — Debate that in a public meeting and make any changes that we need. Don —That will be a public hearing process. Again, a full debate of this issue. Fred — Now with non -conforming uses. Don was eager to give you some background and how we treat them currently so then you can move into your discussion. 17 • Don —That part you will have to discuss the current practice. But not only under your code but under state law, non -conforming uses start with the premise that someone has engaged in some activity or built some structure on property that was lawful when the use started or when the structure was built, traditionally in this County, non -conforming uses date back to the 50's 60's right at the beginning of the 1970's before we had a zoning code in his county. So essentially all uses were lawful with very rare exceptions. Those types of uses can continue in place but the use in its intensity cannot be enlarged or as I said, intensified. However, we have seen this in some types of uses, the business or the use can continue at its normal rate of growth. For instance, we see these diminish over time but there was a time when we had a number of salvage yards in the county and those existed prior to zoning so they continued to exist, they were allowed to expand the area of their coverage although at a normal rate of growth. They could not go buy six adjoining properties and fill it in but they could continue to fill the property that they occupied. Non -conforming uses are disfavored in the law and they are disfavored in your code. The reason for that is the actually existence of the zoning code is presumed to be for the health, safety and welfare of the county. That is why you enacted it to protect those interest of the community so if there is a use that does not conform with that code, it is presumed that you really do not want that in place but you don't want to take it away immediately who has it in place. That is why for many years in other jurisdictions they would amortize non -conforming uses out of existence. You were given a certain amount of time to continue to engage in that use of keep that structure there and the at the end of that time, it did have to go out of existence. The presumption is that you would get a useful sort of life on that use and then put it out of existence. This county has never applied that standard and we still do not apply that standard but we do not favor the continuation of non- conforming uses. As I said, the presumption is you do not want it there but for someone claim they have an interest or property right in that use. Commissioner Samson- Give me a personal example. You can zone that out of existence. Don — some of the municipalities on the Front Range would have areas of blight they would want put out of existence so they would come in and zone them for particular uses, I am thinking of Aurora, Colfax Corridor, they would alter the zoning and give that business whatever the non unlawful use was a period of 10 years to continue that use but at that time they had to phase it out. Commissioner Samson — Such as a salvage yard. Don — Those were not the specific examples but that type of things would be there, yes. That type of thing, someone who had a salvage yard you have 10 years to continue this use but you have to cease. The more common one would was when there was a structure involved and it was presumed someone had an investment in that structure and they would be given an amount of time to continue the use so they could get the value out of the structure they put in place for that business. But this county has never done that. Chairman Maritn —Another example is in Glenwood springs where the building was built onto the property line used as a barn to an adjoining house and that barn was then converted to a workshop or a handyman's shop, it is violation of the code, the building had to come down or cease the means of support for the family. Those are the kinds of things that I am talking about that building is right on the property line which is not meeting the setbacks in the code but if you make any changes of use in that building it is in violation and that has to either cease or you have to meet the code and that means that you have to do the setbacks which means the building has to come down. Commissioner Samson — Because the use changed. 18 • • Chairman Martin —Yes and it is a useful space and it is providing a job for someone to make living yet it is in violation of that setback so again the code is taking rule and saying it cannot be done and it is a non- conforming use of an existing building and it has to go away. Those are the kinds of impacts that we have on people in reference to non -conforming uses. You are on the property line itself and the setbacks say you have to be back so far — the front door setback has to be 50 feet from the street. Well the street is not 50 feet deep so at that point you are in trouble. Don — Let me address that for a moment because John presents once side of the example but it is a detrimental to the property owner but the other side of it is you adopted setbacks that were supposed to be uniform throughout the county and it is presumed you had a reason for that. It is supposed to benefit someone; if it did not then the setbacks should all together be eliminated. So yes, the structure does exist in the setback if it existed lawfully at the time it was built prior to the establishment of setbacks it can continue to exist. But the reason I've just gone through the purpose of this, is you don't want to allow expansion of that use in the setback area because it is presumed you don't want anything there let alone a structure that has a much longer life maybe larger in size and may allow for a more intensive use, so to that extent John is correct, it is presumed that use is going to come to an end at some point and this board has waived the public benefits of requiring that use to go out of existence versus the determinate of losing the structure and losing th benefit of the structure. Of course, you did not make that decision with each individual potential violation in mind. The decision I am talking about is the decision is when you adopted the code which was the larger policy issue for the whole county, but once you have done that, then position of staff is we have received policy direction from the board, it is right here and our job is to enforce the words that are here and that is what Chris does. Chairman Maritn —And there is no argument with me on that, but in reference to the setbacks and what discussion we had with the setbacks and what the example and where those setbacks come from are the planning norms of this is the norm of the setback. When we debate those and say that is too far — 50 feet from an arterial to the front door of your house to me is too far. There are lots in the county that don't have a 50 foot setback and they could not be build in there as well and Andy and I have gone over this. That is too extreme — we need to say these are the wrong kinds of setbacks as the norm in planning. We made our decision on the setbacks that we feel are acceptable. 10 feet, 15 feet, 25 feet, whatever. But have that discussion and not just take a formula well this is what it should be because this is the norm throughout the nation. Commissioner Houpt — Well, Mike we had a huge discussion on this and the three of us were pretty all over the place on setbacks. So, where I thought in certain situations setbacks should be greater, John thought we should not have setbacks in other situations, so we negotiated and compromised as the board of three to do the standard setbacks. Chairman Martin — Two agreed and one disagreed. I still think that — Commissioner Houpt — Well I voted against the code, I did not agree with the entire things. Chris — A lot that is too small to meet to setbacks that could be considered a hardship, could be brought to the BOA, and could be granted. We have seen that happen. Chairman Maritn —And as you know that particular one was denied twice, the third time it was granted. So again persistence and what have you but I think this Board needs to take on the responsibility and do that and debate that one more time is what I am saying. 19 1 • Don — Well in that example John it was not the same type of application that came in front of them three times, it was alterations so that they mitigated the impact of the variance and yes, the variance was eventually granted there is for instance a section in non -conforming use that talks about non- conforming Tots. We do not have as many of these as we used to when I first came here but there are a number of lots still around the county that come into existence before we had subdivision regulations. So they might not meet the minimal acreage for lots right now but they are still lawful and can be built upon. But many of them will require a variance to put a structure on them because of your setback requirements, 50 feet may take all but 4 feet of the lot for instance. That is the classic type of case to bring in front of the BOA and if you show sufficient mitigation then BOA has granted variances very often. Fred — They have. Put it In context for you. The same setbacks the new regulations have right now are virtually identical to what has been in place for the last 30 plus years. In my tenure since 2002, I can almost count on my two hands the variance requests that have gone to the BOA, maybe two a year, there is not a firestorm of variance cases even request for variances because of hardship cases and we are talking about a minute amount of issue so what we have to be careful of from the planning staff is not to legislate the entire county based on one or two examples. You try to reach the common dominator so that every time one little instance comes in a thousand square miles reacting and changing your whole code to address that one thing. You do not do that —that is not sound planning. That is why you have the relief valves of the BOA, BOR to handle those exceptions. To give you a bit of context, this is not a big issue whatsoever for the county in our office. Don — Quickly mention, on non -conforming uses, because of the law in this state and around the country and in your code, the passage of time alone does not create a non -conforming use so if you have a company, a gas company, drilling company that has put a man camp in place way up in the county and we did not know about it and it's been there for 5 6- 8 years, it is still an unlawful use because it has been there and we haven't got around to enforcing our code does not make it a lawful non -conforming use, so you should not mix those concepts really. Yes, there are some places that have been violating previous codes as well as the current code and they have been doing it for a long time, many times because the previous boards have not frankly provided resources to the planning department to enforce code. Now we have those resources so there have been some changes in that regard but that does not make those uses lawful because we have just started to find them. Fred — Now they could through the process they have come to you through the hearing process and become lawful through a public hearing process so do not forget about that component. Chairman Martin — It goes back to our other argument to the acceptance and the state of the enforcement issue and that is why - Fred — It also does not mean that you are stopped from taking action —whoops, we missed it. Chairman Martin —And that depends upon what the action of the Board is and what penalty or remedy we see for punishment shall we say. It needs to be. Fred — It may be perfectible provable. The other issue is well, them coming in knowingly they violated, there is that issue too. Commissioner Houpt — Well I think we might want to look at penalties to write into our regulations it is not something that we have done in the past. In my mind, it is not a great inconvenience for an energy company to have to pay double the application costs. 20 1 • Chairman Martin — But you have to apply that fairly to all people to do that and it is not just the energy people that you would double that on — it would on every individual. Commissioner Houpt — absolutely. Chairman Maritn — So if you make it unreasonable for an individual just to punish the big companies that is again unfair treatment under the rules. That is where you would have to be consistent. Commissioner Houpt — It would have to be fine structure that was researched and well thought out and brought to us. Fred — is this something the Board would like us to look into? Commissioner Samson — I think you should research it. Was does Weld County, LaPlata County do. Fred — we can do that. Chairman Maritn —Then you are into collections and civil actions to collect and a bunch of other things and drive your cost up and give the attorney's more business. Load the courts some more. Fred — We can look into that. Don — So does the Board want the changes Fred suggested put in a proposed text amendment? Commissioners Houpt, Samson —Yes. Fred — Then we will have that for your public hearing process. Don — Shall we treat it as a Board initiated text amendment and start with the planning commission? Fred — I think so yes. Commissioner Houpt-And research the penalty issue. Fred —As I understand it simply someone who has built something after the fact and trying to come through the permit later, is there a penalty assessed for that. Chairman Martin -Any my issue is still non -conforming uses and the improvement of non -conforming uses that those were built and used prior to the codes and that they should still be given the same rights as those under the codes doing the different things whatever means it is to build but not to cease the use of it because of the safety issues and the improvements. Preservation is a great way to look at it when you took the electric department in reference to th city of Glenwood springs and it was created for an electric department and used for many years, it was on the property line, right next to the state highway etc. it did not have any setbacks, it also did not meet all the new commercial codes, they turned it into a dance studio or an art gallery, that is a chance of use under the code it would not be allowed to do that because you changed th structure, etc. therefore a historical structure needs to come down because of its use or cease the use and that was abandoned and therefore in this code deemed abandoned and a non -conforming use has to cease in existence in one way or another — those are the things we need to look at under non -conforming use or non -conforming buildings and their uses. The change of that use does not really change the safety of the building. 21 • • Commissioner- Houpt — What about the old school house in Battlement Mesa that is in the County that is a different use and that did not have to come down. Chairman Maritn — One under historic preservation. Fred — Well that structure was actually, Phil did that for the society, it was an old structure that basically brought up to code, it was an adaptive reuse, they came through this Board and obtained a conditional use permit for a community building. So the use was legitimized by you. Commissioner Houpt—A few years ago, a group of historic preservation folks came in and wanted to have the county adopt some kind of program for preservation maybe that links into what John is talking about. Fred — There is certainly with historic preservation I have worked with there are a lot of exceptions that are build into the building code for historic structures. I know Andy knows a bit about it so; I cannot speak to the City of Glenwood Springs code, as I do not know what it says, Chairman Maritn — it is much like ours, it is non -conforming use and using the state statutes to guide it, etc. but it need to b revamped and under Andy's preservation code under the building code there are two different layers of the preservation code and also the regular building code 2008 now. Andy — no 2009 but there is a section on historic preservation that you do not have to upgrade the entire building to the new code but you cannot change it safety wise, you can't take doors away that are egress doors and do things like that. Historic preservation in Pitkin County, he has a potato cellar and has used it as a shop, but they will not let him touch that potato cellar =- he cannot change one thing o it so it goes both ways in what you want to do. Commissioner Houpt - I think these are two different discussions in terms of non -conforming, I would not call something that was build in 1970 something that is historic that should Chairman Martin - It was before codes were adopted, 1973, 1974 — you need to start putting your stake in the ground and say, okay these are the requirements of that particular time, was it a legal building at that time -yes or no and was it permitted or whatever, approved and now that the new code of 2009 does it apply, would it be legal under that and no It isn't -= that is a non -conforming building or use of that building under our new code. That should not have to go through a re -birth to meet the requirements now if it is being used, it needs to be sued. It was a legal use at that time. Fred — Sure and I think what you are saying is very consistent with a large part of the non -conforming code. Chairman Martin — Except if the improvements or enlargements or the change of use etc. Fred — We said earlier if it was a non -conforming structure it had to come down. Chairman Martin — IT says cease. Fred — Only if you change it. There are a lot of things that you can do that do not fall under the category of change, so just because there are some non -conforming structures out there it does not meant they have to come down. 22 • • Chairman Maritn — Well I think that would be the push if it is a non -conforming use and you did an expansion or a change or an addition, you would say that the entire building would have to either come down or meet the entire code which it would be impossible to meet under the new rules and regulations and that would — letter of the law, it would mean that it would have to come down and to be reconstructed under the new code. Andy — I do not think the letter of the law says that either. Chairman Martin — I said if you make a change to it, alteration, etc. not just being maintenance but if you do an addition to it, an enlargement of it, if you make a significant change to it, it does have to meet that and you cannot meet that code on a lot of these issues. Andy — Like there are houses that have set back violation on the BLM for example and they can do an addition to the house that is not on the setback side of the house, it they try to do anything more non- conforming then we say you cannot change anything in the set back violation but if you want to make your house bigger, that is fine. Chairman Maritn —That is why you do not see permits going to the internal of older homes and why Chris always gets the call — on wait a minute they did this big expansion inside or they put a second kitchen downstairs for an ADU etc even through the structure did not change, the safety did not change. Andy — Many times Chris brings that to you because they did not get a building permit to put the second kitchen in. Chairman Martin —Again it is an adoption of a non -conforming use and need to be remedied. Fred — Cut to the bottom chase — based on the lack of a huge rash of these big issues I am not hearing a mandate from the Board to investigate the viability of your current land use regulations unless you are telling me something different. Commisioner Houpt — You mean the whole code. Fred —Just the land use component or the non -conforming land use component. I am not hearing that from you. Chairman Maritn - at least not from the majority — I am saying that we need to review it and rewrite it and to go ahead and address those issues and again if I need to write my concerns down and present them to you in a request for a zone text amendment I will do so and at that point we can debate those issues on changes. That is where I am coming from. I do not want to take up more of your time because I need to put these down on paper and to make sure that I am addressing the issues that I need to see changes on and not slow up th rest of the process or just spin our wheels. Fred — Okay, cut to the chase, it sounds like we are not going to move forward on that right now. Commissioner Houpt — No. Fred — we will come with a text amendment initiated by you for the code enforcement component for sure to the planning commission and back to you for your debate. Chairman Maritn — I might write one on setbacks too. Fred — Okay. 23 Chairman Martin — I will take that initiative on myself and see how far it goes in a public hearing. Thank you for your time. 24