HomeMy WebLinkAbout1.0 ApplicationAPPLICATION
Special Use Permit
• REG
GARFIELD COUNTY PLANNING DEPARTMENT
109 Eighth Street, Suite 303
Glenwood Springs, CO 81601
Telephone: 970.945.8212 Facsimile: 970. 384-5004
Submittal Date: 2 - Z d "0
Base Fee: $400
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Applicant: t V-1 6Q 14 1 G b S / PC LJ G 1. l_ P (y 1
0 5 r Ck l i+ C to A I e Telephone: (b 3 `?) �Z
Address of Applicant:
Special Use Being Requested:
C IIL'1 Slit Y1 OT elf ',tee 'IOUS L'✓1 R +6 'Plea � �+
Zone Distrct: T'� ►l U Size of Property: U J/5 Y0.0 Y -L SJ
Application Requirements: These items must be submitted with the application
1] Plans and specifications for the proposed use including the hours of operation, the amount of vehicles
accessing the site on a daily, weekly and/or monthly basis, and the size of any existing or proposed
structures that will be utilized in conjunction with the proposed use. Please submit this information
in narrative form and be specific. Sc e'0 k 1� S eft yfo cca oma u i } a ; not Fe m. r $ (473
2] If you will be using water or will be treat' wastewater in cp�&rijunction with the proposed t(splease
detail the amount of water that would be used and the type of wastewater treatment. If you will be
utilizing well water, please attach a copy of the appropriate well permit and any other legal water
supply information, including a water allotment contract or an approved water augmentation plan.
3] A map drawn to scale portraying your property, all structures on the property, and the County or State
roadways within one (1) mile of your property. If you are proposing a new or expanded access onto
a County or State roadway, submit a driveway or highway access permit.
4] A vicinity map, showing slope of your property, for which a U.S.G.S. 1:24,000 scale quadrangle map
will suffice.
5] A copy of the appropriate portion of a Garfield County Assessor's Map showing all public and private
landowners adjacent to your property. Include a list of all property owners and their addresses.
6] Attach a copy of the deed and a legal description of the property. If you are acting as an agent for the
property owner, you must attach an acknowledgment from the property owner that you may act in
his/her behalf.
7] For all applications pertaining to airports, the oil and gas industry, power generation and/or
transmission industry, or any other classified industrial operation, you must submit an impact
statement consistent with the requirements of Sections 5.03, paragraphs 1 thru 3; 5.03.07, inclusive;
and 5.03.08, inclusive.
The consideration of this proposed Special Use will require at least one (1) public hearing, for which public
notice must be provided. The Planning Department will mail you information concerning this hearing(s),
approximately 30 days prior to the scheduled hearing. You will then be required to notify, by certified return
receipt mail, all adjacent landowners and publish the notice provided by the Planning Department, in a
newspaper of general circulation. Both these notices must be mailed/published at least 15 days prior to the
public hearing. The applicant shall bear the cost of mailing and publication and proof of mailing and
publication must be submitted at the time of the public hearing.
The information contained within this application is complete and correct, to the best of my knowledge:
Date: 2 — Z `0 C
Applicant:
l-'EYler
See e
cac/neC le -Her mor Ccrflcr'i' Ci
cY 0 I. C cc c vJ
February 20, 2001
To Whom It May Concern:
I am applying for a Special Use Permit to convert the multi -family portion of my barn
into free market dwellings. I built a large barn, office, and multi -family (restricted to
employees only) structure on my ranch in 1998-1999. The Certificate of Occupancy was
issued on August 19th, 1999.
The county now claims that the multi -family portion of this structure is not allowed and
has asked me to submit an application for special use to allow the continued use of the
housing portion of the barn. My attorney has advised me that since the permit and C.O.
for this structure have been issued that no further permits are needed, but I am willing to
apply for a special use permit to convert these multi -family units to free market units if
that will help eliminate problems that the county feels have been created by their issuing
a permit and C.O. for this structure.
Therefore, I am applying for the special use permit to change the status of the employee
housing to allow them to be free market units. If this application is denied then I, upon
my attorney's urging, am not admitting that a special use permit is necessary for the
continued use of the facilities.
Thanks for your consideration.
Sincerely,
ovvjjJr
David Hicks
-1111111111111111111111111111 11111 1111111111111111111111
567767 08/16/2000 03:07P 01202 P302 11 RLSDDRF
1 of 2 R 10.00 D 0.00 GARFIELD COUNTY CO
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Recorded the day of at o'clock m.
Reception Y Recorder Sy
QUIT CLAIM DEED
DOS DEED, Rade this day of fiat-it/ST 1(11, 2000
between
DAVID W. EIICKS AND CONNIE F. HICKS
Grantor, for the consideration of ••• TEN DOLLARS AND OIIIER D000 AND VALUABLE CONSIDERATION ••• in hand paid,
hereby sells and quitclaims to
PCI, LLLP
Grantee, whose strata address is 1051 PRINCE CREEK ROAD, CARBONDALE, CC) 01623
city of Caddy u( GARFIELD State of Colorado , the following
real property in the 'p I D County of GARFIELD mrd state of Colorado, to wit:
AS SET FORTH ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HERETO.
also known as street and comber
10GETHER with all its appurtenances.
The singular number shell Include the plural, the plural the singular, and the use of any gender shall
be applicable to all genders. Signed as of the day and year first above written.
'Vr )34,42,„-/
DAVID W. HICKS
CONNIE P. HICKS
State of Colorado
) te.
County of GARFIELD E
The foregoing Instrument was acknowledged before me this day of / 1 (;1 Ii.OrT /(p, 7 -call
by DAVID W. HICKS AND CONNIE P. HICKS
Witness my hand aid official seal.
My commission expires @mkt
14CorivrN6h7 Evros 09/03/01
When recorded return to: DAVID W. NICKS
1051 PRINCE CREEK ROAD CARBONOALE, CO 81623
form Ito. OCD (Quit Claim Deed - 2/97)
GW001 001
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gm EXHIBIT "A"
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P1 = LEGAL DESCRIPTION
-28
IMMINm p A tract of land situated in Lot 9, Section 10 and Lot 7,. Section 11, Township 8
---NW South, Range 00 West of the 6th P.M. being more particularly described as
follows;
▪ 3
ED Beginning Beginning ac a point whence a Garfield County Brass Cap set as a witness corner
n m for the Southeast Corner of said Section 1.0 bears 5 04"44'24" W 512.62 feet;
= o •
m thence West 1065.77 feet to a point in the Crystal River; thence along said
ara
m
— m river N 00°24'06" E 392.80 feet; thence N 11°45'02" E 114.96 feet; thence 11
f.m.. E 29°24'12" E 326.48 feet; [hence N 26°24'22" E 158.06 feet; thence N 23°04'47" E
=mem w 417.57 feet; thence departing said river S 07°30'00" E 107.21 feet; thence S
o 13°07'14" W 7.12 feet; thence S 85°10'51" E 63.49 feet; thence 5 20"45'25" E
�N N 48.46 feet; thence S 83°47'37" E 111.00 feet; thence N 07°17'30" 8 26.83 feet;
Nu. thence N 39°17'36" E 26.00 feet; thence N 56°10'52" E 22.06 feet; thence 8
N 87°30'00" E 228.66 feet; thence N 00°28'45" 14 15.20 Leet; thence N 89°42'26" 8
789.00 feet to the westerly line of Prince Creek Estates Subdivision; thence
along said boundary line S 28°05'30" W 224.28 feet; thence departing said
boundary line N 60°51'42" W 36.92 feet; [hence S 37°31'19" W 216.01 feet; thence
5 24°06'50" W 83.25 feet; thence 5 07°26'10" W 136.18 feet; thence West 405.44
feet; thence S 00°00'58" E 790.75 feet to the Point of Beginning having an area
of 35.274 acres.
County of Garfield
State of Colorado
A, COURT USE ONLY A
❑ Small Claims ❑ County Court g4 District Court
❑ Probate Court ❑ Juvenile Court ❑ Water Court
GARFIELD County, State. of Colorado.
Court Address: 109 8"' St., Suite 104, Glenwood
Springs, CO 81601, 970:945.5075
TOWN OF CARBONDALE,
Plaintiff,
v.
DAVID W. HICKS and CONNIE P. HICKS,
Defendants.
Case Number: 00CV35
Div.: Ctrm: A
ORDER 014 CROSS MOTIONS FOR SUMMARY JUDGMENT
Date: February 12, 2001
Proceeding: Cross Motions for Sununary Judgment
Presiding Judge: Thomas W. Ossola
THE COURT being fully advised in the premises, finds, concludes and orders the following.
FACTS
Plaintiff, Town of Carbondale, (Town) sued Mr. and Mrs. Hicks in connection of' use of water
pursuant to an agreement entered into between the Town and Victor Cerise, predecessor to the Hicks'
ownership of real property south of the Town in 1953. The agreement gave the Town the right to
continue operation of a water pipeline under the property so long as the Town delivers "domestic water"
to the property. Specifically, the agreement granted the landowner the right to install a 3/4' water line onto
the Town line and the Town agreed to furnish "...free water for domestic water so long as the easement or
right-of-way is used ...". In 1993, the property was conveyed to the Hicks.
It is undisputed that from 1953 to 1993, Mr. Cerise and his family used the pipeline water for
their homes, outbuildings, lawns, gardens, dairy cattle and livestock. The Town was aware of the
practices and approved them in minutes of a Town Trustee's meeting in November, 1966. After acquiring
the property in 1993, the Hicks family somewhat altered or intends to alter the uses to include more or
larger residences and his construction company office. Some of these uses may be in violation of county
land-use ordinances.
The Town commenced this action seeking declaratory and injunctive relief to limit the use of
water under the agreement Mr. and Mrs. Hicks filed a motion for summary judgment asserting that this
action is barred by the applicable statute of limitations, CRS 13-89-101, that the current uses are
"domestic" uses as defined by law and that the Town is attempting a unilateral modification of the
contract. The Town has filed a cross-motion for summary judgment asserting that the action is not barred
by the statute of limitations, the uses are not "domestic" uses as defined by law, and that there must be
reasonable limitations on the quantity of water to be delivered and structures to which water is delivered.
CONCLUSIONS
a. Statute of Limitations
The parties agree that the statute of limitations for a contract action is three years. CRS 13-80-
101(1). The Hicks argue that the alleged breach of contract occurred substantially more than three years
ago, therefore this action is time-barred. The Town asserts that almost all of the actions upon which their
complaint is based occurred within the three years prior to the filing of this action. The Court concludes
that to the extent that the actions relied upon by the Town to establish a breach of contract occurred within
three years of the filing of this action, the proceeding is not time-barred
Summary judgment is warranted only upon a clear showing that no genuine issue as to any material
fact exists and that the moving party is entitled to judgment as a matter of law. See C.ILC.P. 56;
Greenwood Trust Co. v. Conley, 938 P.2d 1141 (Colo. 1997). The moving parry has the initial burden to
show that there is no genuine issue of material fact See Greenwood Trust Co. v. Conley, supra. Once the
moving party has met its initial burden, the burden shifts to the nonmoving party to establish that there is
a triable issue of fact DeBoer v. Jones, 996 P.2d 754, 755 (Colo. App. 2000).
The primary claim of the Town is the breach of contract due to the unauthorized use of the water.
The easement agreement does not limit the amount of water but only provides for the supply to be limited
by the 'h" pipe connected to the water pipe. The other limitation is that it be "domestic" use. The use for
irrigation, livestock, other residences is a misuse of the water. The Town was aware of the alleged misuse
of the water practically from its inception and certainly before the three-year statute of limitations. C.R.S.
§ 13-80-101(1). The action is barred because the statute of limitations has nm.
The continuing violation argument does not hold differently. The "continuing violation" doctrine is
no different than the standard established by § 13-80-108(1) which applies the principle that a statutory
limitations period begins to run only when a reasonable person would be on notice that he or she bas been
injured by the defendant's wrongful conduct Harmon v. Fred S. James & Co. of Colorado, 899 P.2d 258
(Colo. App. 1994). In this case, the Town was aware of the injury of the landowner allegedly misusing
water and let its remedy lapse. Zimmerman v. Hinderlinder, 105 Colo. 340, 97 P.2d 443 (1939) is not
applicable because the discovery of the damage was not delayed such as that due to seepage, or through
misdiagnosis and medical malpractice. Those types of damages are not readily apparent and could
certainly take longer to discover than the alleged misuse of the water here. In this case the Town Council
minutes indicates the Town knew of the breach and discussed it. The Town has not shown any reason
why it was prevented from bringing the action prior to the expiration of the three-year statute of
limitations. The motion for summary judgment on statute of limitations should be granted.
b. Domestic Water
The word "domestic use" is not otherwise defined in the agreement. The Hicks would have the Court
use a definition consistent with that used in Colorado water law that includes livestock watering. While
the Town does not directly dispute that definition, it would have the Court impose a condition of
reasonableness and limit the uses to those historically utilized prior to 1993 that unarguably included the
watering of livestock during the fall and winter months. Specifically, the Town disputes the use of water
to support the construction operations of the Hicks.
It is clear that the term "domestic use" as it is used in the water law context in Colorado includes
stock watering. See Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo 233, 48 P. 532 (1896), Black
v. Taylor, 128 Colo. 449, 264 P.2d 502 (1953). The Court concludes that the definition is applicable here
and that activities carried out within and around a residence including a home office for a construction
business is within the definition of "domestic use".
c. Quantity of Use
In its cross motion for summary judgment, the Town argues that the Court must impose a rule of
reasonableness on the quantity of water that must be delivered to the Hicks. It would have the Court limit
the quantity to the amount of water historically used and the locations to which it was put to use.
This Court concludes that the agreement limits the amount of water to be used to that amount that can
be delivered through a' inch pipe. That is the bargain of the parties and the amount that should be
recognized in law. That being said, the Hicks in applying water to domestic use should not be permitted
to waste water.
WHEREFORE IT IS ORDERED that defendant's motion for summary judgment be granted to
the extent that they be permitted to apply water through a '/. inch pipe to domestic uses including stock
watering and support of a home office of a construction company.
IT IS FURTHER ORDERED that plaintiffs cross motion for summary judgment be granted to
the extent that defendants be prevented from committing waste in the use of water through the ' inch
pipe for domestic purposes.
,:,•i F,: -%OF MAILING
that a copy of
1 certify _t marled to all
ForegOing Courtset of
d:y of
r"
BY THE CQURT:
�_. _ ' Judge
210 TENTH STREET
GLENWOOD SPRINGS, COLORADO 61601
TELEPHONE (970) 928-9665
FACSIMILE (970) 926-9660
David and Connie Hicks
1051 Prince Creek Road
Carbondale, CO 81623
HARTERT &WILSON
ATTORNEYS AT LAW
November 8, 2000
RE: Garfield County Zoning Requirement Prince Creek Ranch
GERALD D. HARTERT
RONALD M. WILSON
Dear David and Connie:
At your request I have reviewed the correspondence dated October 24, 2000 from Steve
Hackett the Compliance Official for Garfield County which correspondence states, in effect, that you
are required to obtain a special use permit for the "two-family dwelling" which you have constructed
within what I will refer to as the "barn building" on Prince Creek Ranch. You have also requested
that I address the issue raised in Mr. Hackett's letter regarding your proposed restoration of a log
bunkhouse which Mr. Hackett apparently considers a non -conforming use as constituting an
accessory dwelling unit under the County code. After reviewing Mr. Hackett's correspondence as
well as the building permit and certificate of occupancy issued for the construction of the living
quarters in the barn building and after review of the pertinent sections of the Garfield County zoning
resolution, it is my opinion that the dwelling units contained within the barn building are a use by
right in the A/R/RD zone district under Section 3.02.01 of the resolution. I am also of the opinion
that the bunkhouse as restored would constitute a use by right so long as it housed only persons
employed in ranch activities, based on the same analysis applied to the dwelling areas within the barn
building.
Under the first paragraph of Section 3.02.01 uses by right include "agriculture including
farms, garden, greenhouse, nursery, orchard, ranch, etc." and further, "customary accessory uses
including buildings for shelter or enclosure of persons, animals or property employed in any of the
above uses". This section of the zoning resolution, although it enumerates several related uses,
constitutes in the aggregate, a single use by right. It is my understanding gained from our
discussions that one of the two units in the barn building is occupied by your father and the other unit
is occupied by your immediate family and that all of these persons are employed to one degree or
another in the agricultural and ranching operations on the property. This being the case, the building
permit and certificate of occupancy for the structure were properly issued in my opinion, recognizing
a use by right under the quoted provision of the zoning resolution. Similarly, since the intended
use of the restored bunkhouse is also to house persons employed in ranch activities the issuance of
a building permit should recognize a use by right.
With respect to the barn building, Section 3.02.03 of the resolution cited by Mr. Hackett
provides that a two-family dwelling requires a special use permit. However, the two-family
dwelling is an entirely different use than that defined in the section of the regulation first above
quoted for the reason that there is no restriction that a two-family dwelling be occupied by persons
employed in the agricultural uses on the property. It is this restriction under the use by right
defined in Section 3.02.01 that distinguishes it from the two-family dwelling use under Section
3.02.03. Because of this distinction there is no inconsistency between having more than one family
inhabit the barn building as a use by right and an unrestricted two-family dwelling structure requiring
a special use permit.
Logically, it must be considered that if a single-fancily dwelling were located on the property
as a use by right, the use of that single -family dwelling would not be limited to persons employed
in agricultural activities on the property and use of the ranch property for that single -family dwelling
would not preclude the additional use by right of agricultural activities and buildings for shelter or
enclosure of persons, animals or property employed in any of those agricultural activities. These
two uses by right would legally coexist on the same property. Under the same reasoning, if a
special use permit were obtained to construct a free standing two-family dwelling on the ranch
property rather than a single -family dwelling use by right, the properly permitted two-family
dwelling unrestricted as to occupancy would legally coexist on the property with the dwelling units
in the barn building restricted to occupancy by persons employed in agricultural activities on the
ranch. This is a completely logical parallel to the circumstance in which a single -family dwelling
could so coexist on the property unrestricted as to occupancy.
Again, I emphasize the use under which you and the other members of your family occupy
the two units in the barn building is qualified in requiring that you be employed in the agricultural
activities on the ranch and it is the fact of this requirement that distinguishes your use from an
unrestricted two-family dwelling which requires a special use permit.
The same reasoning applies with respect to the restored bunkhouse. So long as it is used
for housing persons engaged in ranch activities, the bunkhouse is not an accessory dwelling unit
requiring a special use permit and is not, as restored, a non-conforming use; it is a use by right. It
follows, of course, that if either of the structures, the barn building or the bunkhouse, were used to
house persons not engaged in ranch activities the structures or dwelling unit portions thereof would
have to be permitted as special uses under Section 3.02.03.
In addition to the foregoing and with respect to the barn building only, under the Colorado
Vested Property Rights statute and under well established Colorado case law, once a building permit
and certificate of occupancy are issued for a structure clearly intended for a certain use, in this case
to provide shelter and enclosure of persons engaged in agricultural activities, and the owner of the
property acts in reliance on the issuance of the permit and certificate of occupancy, the governmental
entity issuing the same cannot then assert that the use is illegal under its land use regulations. The
2
principles of common law vested property rights continue to exist in Colorado even though there is
now on the books the Vested Property Rights statute. The Vested Property Rights statute expressly
provides that it does not supplant common law vested property rights based on principles of equity
and detrimental reliance. Therefore, it is my opinion that under the Garfield County zoning
resolution itself, the clear facts germane to the situation, the Vested Property Rights statute and
established Colorado case law with regard to the effects of issuance of a building permit and
certificate of occupancy for the very uses to which the property has been put (with respect to the barn
building), Garfield County has no right to require you to apply for a special use permit for either
structure.
I note that there are other provisions in the County zoning resolution, primarily in the
definitions and supplementary regulations sections, which arguably lend support to the foregoing
opinion but I believe the foregoing adequately addresses the issue.
In summary, it is my opinion that both of the existing dwelling units in the barn building and
the dwelling unit intended to be installed in the bunkhouse are uses by right under the zoning
resolution.
Please let me know if I can provide you with an further information or clarification of the
foregoing.
GDH/pc
3
Yours very truly,
Gerald D. Hartert
PAY
TO THE
ORDER OF
PRINCE CREEK CONSTRUCTION, INC.
1051 COUNTY ROAD 111
CARBONDALE, COLORADO 81623
(970) 963-8182
Garfield County Treasurer
Four Hundred and 00/100
MEMO
ALPINE BANK
0350 HWY 133
CARBONDALE, CO 81623
(970) 963-3040
82-340/1021
2/21/2001
$ "400.00
Garfield County Treasurer
P. O. Box 1069
Glenwood Springs, CO 81602
Permit fee converting employee housing to free market- 1051 C
111009 i 2811' 1: 1.0 2 1.0340 4t: 40 400 28 LB 5"
aJ
AUTHORIZED SIGNATURE
09128
DOLLARS
PRINCE CREEK CONSTRUCTION, INC. 09128
Garfield County Treasurer 2/21/2001
Date Type Reference Original Amt. Balance Due Discount Payment
02/21/2001 11i11 Spec Use 400.00 400.00 400.00
Check Amount 400.00
Checking
Permit fee converting employee housing to free market- 10 400.00
Garfield County
BUILDING & PLANNING DEPARTMENT
March 18, 2002
Mr. David Hicks
1051 CR 111
Carbondale, CO 81623
RE: Special Use Permit
Dear Mr. Hicks:
This letter is in response to your Special Use Permit to change the status of the current employee
housing on your property, as submitted to Garfield County. As a result of additional information
received, Staff has completed a Technical Compliance review of your application, and has found
it to be in Technical Compliance. This means that all the information required for staff to review
the application has been submitted.
Garfield County now has sixty (60) days to place your application on the public hearing agenda.
I will be sending you another letter shortly explaining the public notice requirements for this
application, and also the pertinent forms to assist you in the process.
If you have any questions, please do not hesitate to contact me.
Sincerely, II
ayj
Kim Schlagel
Senior Planner
109 8th Street, Suite 303, Glenwood Springs, Colorado 81601
(970) 945-8212 (970) 285-7972 Fax: (970) 384-3470
Adjoining Property Owners to 35 acre parcel:
Parcel # 2463-103-00-052
Perry Sopris Ranch Partnership Ltd.
163 County Road 118
Carbondale, CO 81623
Parcel # 2463-104-00-053
Cold Mountain Ranch LLLP
4239 Hwy 133
Carbondale, CO 81623
Parcel # 2463-113-00-075
David & Connie Hicks
1051 County Rd 111
Carbondale, CO 81623
Parcel #2463-104-00-044
Carolyn McVoy and John A. Weiss
P.O. Box 1238
Carbondale, CO 81623
Parcel #2463-101-00-012
Four Bar Ranch Co., Inc.
P.O. Box 686
Carbondale, CO 81623
Parcel # 2463-113-01-004
John & Stella Miernicki
950 Cowen Dr.
Carbondale, CO 81623
I Weaver,
Cern,
1 \ „
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,b‘
134 lc
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uarbondele
DA:
Segments of USGS QUAD SHEETS
Carbondale, Colo. N3922.5 -W10707.5/7.5 (1961)
Mount Sopris, Colo. 39107 -C2 -TF -024 (1961)
(Photo Revised 1987)
Depicting Portion of
T. 8 S., R. 88 W., 6th P.M.
Location of Hicks (Cerise) Ranch
in Relation to Carbondale, Colo.
plcomb & Green, P.C. Oa 2001]
. Hicks
Exhibit No. 11-22
Civil No. 00 CV 35,
District Court, Garfield County, CO
March 13, 2002
Kim Schlagel
Garfield County Building and Planning
109 8th St.
Glenwood Springs, CO 81601
RE: Information on Special Use Permit
Dear Kim,
The amount of vehicles accessing the site on a daily basis will be an average of 6 per day
per unit, making 12 vehicle trips per day. This amount will not change whether these
units are free market or rented to employees.
The size of the existing bam is 52 ft. by 122 ft.. The size of the 2 apartments makes up
about 1/5 of the size of the entire structure or 52 ft by 24 ft. each, with the apartments
being stacked one on top of another.
The waste water amount approved in the building permit was for 6 bedrooms. We have a
total of 4 bedrooms. The calculated amount of water used per bedroom is 75 gallons per
person per day, with 2 people in each bedroom, or 600 gallons of water per day for the 4
bedrooms. This figure was obtained from Bob Pennington of Gamba Engineering. The
septic was designed, approved, and constructed for 6 bedrooms (or 900 gallons a day).
We hope to put in a small office in the future and use the remaining septic allowance for
that.
Please see the attached sheets for a vicinity map, Garfield County Assessor's map, and
list of all adjoining property owners and their addresses.
Thank you,
David and Connie Hicks