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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 WE A -,i? 0 5 2119? 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 FX em 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 � gm EXHIBIT "A" au ▪ cZ 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 \ „ 6124 v '11 ----r ()c , ,b‘ 134 lc , \ ; 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