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HomeMy WebLinkAbout2.0 BOCC Staff Report 08.05.2002Exhibits for Hicks SUP Public Hearing held on August 5, 2002 Exhibit Letter, (A to Z) Exhibit A Mall Return -Receipts B Proof of Publication C Application for a Special Use permit D Project Information and Staff Comments with all attachments E Garfield County Zoning Resolution of 1978, as amended F Well Permit for 35 ac. tract. G Staff Memo dated 11/26/02 H Water Service and Pipeline Easement Agreement — Flicks & Town of Carbondale I J K L M N 0 P Q R S T U V X Y Z AA BB CC DD EE FF GG HH II JJ KK LL MM NN 0O PP REQUEST: PROJECT INFORMATION AND STAFF COMMENTS A request for a Special Use Permit to allow for a two-family dwelling . David Hicks 1051 CR 111 35 Acres County Road 111 Town of Carbondale ISDS APPLICANT: LOCATION: SITE DATA: ACCESS: WATER: SEWER: EXISTING ZONING: BOCC 08/05/02 MLB A/R/RD RELATIONSHIP TO THE COMPREHENSIVE PLAN According to the Garfield County Comprehensive Plan of 2000, this site lies in a Medium Density Residential area which recommends 6 to less than 10 acres per dwelling unit. This property also lies within the Town of Carbondale's Urban Area of Influence. II. DESCRIPTION OF THE PROPOSAL A. Project Description: The applicant is proposing to convert the present employee housing on the property into a two-family dwelling so the units may be rented out in the free market in the future. The applicant has represented that the amount of vehicles accessing the site will be approximately 6 per day per unit. Staff would like to have an opportunity to respond to a letter submitted by the applicant on February 20, 2001, See Exhibit A. Within this letter, the applicant states that, "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." Staff would like to respond to that by saying that the housing was originally permitted as employee housing for ranch employees as a part of the larger property. The applicant and his father occupied the new units, which then made the structure a two-family dwelling. Since the applicant was not using the units for employee housing on the ranch, he was directed to split off the two-family dwelling onto a 35 acre tract and to apply ,4j -0 M ' #/ sa e4,,,rti 4 /d//p, 4 t 1 n /d e, ' tar a �n!'v� //971 4"-r GfitAet teeag "4aCAe • ##01s?` '/ for a Special Use Permit to come into code compliance. B. Site Description: The property in question sits on a 35 -acre parcel that was carved out from the remainder of the Flaven Cerise Ranch. It should be noted that the plat the applicant has provided as a part of this application does not depict this split. As seen in the correspondence from Steve Hackett dated March 12, 2002 (Exhibit B) and April 3, 2002 (Exhibit C), there are several uses on the applicant's property that were identified as being in violation of the Garfield County Zoning Resolution. The following uses on the subject property, discussed in detail in the attached Exhibits B and C, were noted as violations: 1. Current two-family dwelling on the property originally permitted as ranch employee housing have never been used for this purpose. An affividavit was originally signed by Connie Hicks in 1998 stating that the dwelling units within the barn would be provided to individuals and his/her family who derive the majority of their income from work on the property and pay no rent, see attachment to Exhibit B. Subsequently, the applicant split the property off from the main ranch, creating a two family dwelling that was not permitted as a special use, It is Staff's understanding that the individuals who live in these units are the applicant and the applicant's father, both of which do not earn their income through agricultural means on the property. It is staff's position that one of the dwellings could be a principal dwelling and the other unit creates a two family dwelling since it is questionable that the applicant or his father could be classified as an employee of a 35 acre ranch. 2. The barn on the property was being used for storage space and assembly work for Prince Creek Construction. Additionally, heavy construction equipment was also being stored on the property. The applicant did not have a permit for these uses. Staff has inspected the property and determined that the uses noted previously are no longer existing on the property. 3. There are several non -conforming uses on the adjacent parcel also owned by the Hicks that will not be discussed as a part of this hearing but are listed within the correspondence by Steve Hackett. These uses are being properly permitted. III. REFERRALS: A. Town of Carbondale: Mark Chain, Planning Director, has responded to this application with several concerns regarding this application and has recommended that the Board of County Commissioners deny the application based on the following issues: 1. The improvement location certificate provided within the application does not correctly depict the existing conditions of the property; 2. The water source the applicant is representing is pending litigation; 3. The design of the use does not minimize impact on adjacent landowners. 2 Mark Hamilton, legal counsel from the Town of Carbondale, has also submitted a letter explaining the legal issues and concerns behind the pending water litigation. The issues that are raised within his letter and subsequent attachments are discussed more thoroughly in Section IV(D) in the body of this report. See Exhibit E. IV. MAJOR ISSUES AND CONCERNS A. Conditional and Special Uses: Special Uses are subject to the standards set forth in Section 5.03 of the Zoning Resolution. This section states that (1) Utilities adequate to provide water and sanitation service based on accepted engineering standards and approved by the Board of County Commissioners shall either be in place or shall be constructed in conjunction with the proposed use; These issues are dealt with in subsequent sections of this report. (2) Street improvements adequate to accommodate traffic volume generated by the proposed use and to provide safe, convenient access to the use shall either be in place or shall be constructed in conjunction with the proposed use; The traffic generated from this use will be minimal, as the only traffic will be for maintenance purposes. The current condition of County Road 101 should satisfy this requirement. (3) Design of the proposed use is organized to minimize impact on and from adjacent uses of land through installation of screen fences or landscape materials on the periphery of the lot and by location of intensively utilized areas, access points, lighting and signs in such a manner as to protect established neighborhood character; The two family dwelling is constructed as a part of a barn type structure and gives the appearance of a ranch or farm related building. There are no other mitigation measures that would minimize the impacts to the neighborhood. B. Access: The proposed access is a shared access way with neighboring property owners off of CR 111. C. Water: The applicant has represented that the proposed water service on the property is from the Town of Carbondale. It should be noted that this water source is currently in litigation and has not been resolved. The applicant and the Town of Carbondale are set to go to trial concerning water usage in late November of this year. As seen in Mark Hamilton's letter, Exhibit E, the original agreement for water usage on the property was a limitation of a 3/4 inch pipe. In a deposition of Mr. Hicks on November 8, 2001 the Town of Carbondale became aware that the 3 waterline serving the Hick's property consists of a variety of pipe sizes ranging from 1 inch to 2 inches in diameter. Paul Bussone and Scott Fifer of Resource Engineering in their letter dated December 6, 2001 (Please see attachment to Exhibit E), have stated that by increasing the sizes of the water delivery system Mr. Hicks has increased the deliverable flow rate by three fold over what would otherwise be available if the system consisted of a''/a inch diameter pipeline as originally contemplated in the Town's 1953 agreement. It is questionable if Mr. Hicks would be able to physically serve all the uses presently on the property if he was limited and held to a' inch tap. The matter is further complicated by the fact that the parcel these units are on has been split off from the historic Flaven Cerise Ranch. The water source therefore, pending litigation, is not secure from future shut -offs from the present or future owner of the property or the Town of Carbondale. The applicant could resolve this issue very easily, by drilling an exempt domestic well on a 35 acre tract. An exempt domestic well is allowed to serve up to three (3) dwelling units. If the applicant were to decide to obtain an exempt domestic well, it would be necessary to have the well drilled and the following information being provided: 1) That a four hour pump test be performed on the well to be used; 2) A well completion report demonstrating the depth of the well, the characteristics of the aquifer and the static water level; 3) The results of the four hour pump test indicating the pumping rate in gallons per minute and information showing down draw and recharge; 4) A written opinion of the person conducting the well test that this well should be adequate to supply to the number of proposed lots; 5) An assumption of an average or no less than 3 5 people per dwelling unit, using 100 gallons of water per person, per day; 6) The water quality be tested by an approved laboratory and meet State guidelines concerning bacteria, nitrates and suspended solids; D. Sewer: Sewer service for this use is proposed to be through an existing ISDS system, originally designed for the structure. The sewage needs and design capacity will not change for this proposal. V. SUGGESTED FINDINGS 1. That proper public notice was provided as required for the hearing before the Board of County Commissioners. 2. That the hearing before the Board of County Commissioners was extensive and complete, that all pertinent facts, matters and issues were submitted and that all interested parties were heard at that meeting. 4 3. That for the above stated and other reasons, the proposed special use permit is in the best interest of the health, safety, morals, convenience, order, prosperity and welfare of the citizens of Garfield County. 4. That the application is in conformance with the Garfield County Zoning Resolution of 1978, as amended. VI. RECOMMENDATION Staff recommends that the application be continued to a date certain, after the District Court has made a final determination regarding the applicant's right to use the water from the Nettle Creek water supply for uses on the applicant's property. f4-��- . a4/1 ,dtetet bate /9.br,hroti 0 -2t -era 4 ‘4�11 dfral 77111° A 3/ /�nog, RECEIvtaL' ,1AR 1 5 2002 Prince Creek Construction, Inc. PCC 1317 Grand Ave., Suite 101 Glenwood Spgs, GO 81601 970-945-4545 Phone 970-945-4848 Fax March 15, 2002 Kim Schlagel Garfield County Building and Planning 109 8th Street Glenwood Spgs, CO 81601 RE: Information for Conditional Use Permit. Dear Kim: Here is the information you requested for the conditional use pemiit for 1051 County Road 111. Regarding the specifics of our proposed business, we have moved our office for Prince Creek Construction to 1317 Grand Ave #101 in Glenwood Springs. We do not have any employees working at the 1051 address. We do, however, have some storage of materials in the barn and the old office there, We would like to keep pursuing a conditional use permit in case we would ever want to have a small office there for an electronics company or some other endeavor. The maximum people we would want in such an enterprise would be 5. The existing building to be used is the barn/shop/office/apartment building of approximately 52 ft x 122 ft. There is also a 30 ft. by 60 ft. shop/garage and various sheds and outbuildings. The wastewater is handled by a septic system. The current septic system in the barn is sized for 6 bedrooms, and there are only 4 bedrooms there. According to Bob Pennington of Gamba Engineering, the waste water amount allowed by the 2 extra bedrooms is limited to 4 additional people at 75 gallons per person, per day. This is 300 gallons total per day, and the usual toilet flushing amount is 1.6 gallons per flush. This home office's water use should be less than is required for the 2 bedrooms. Please see the attached for the vicinity map, assessor's map and list of all property owners and their addresses. The impact statement (Section 5.03) is as follows: 1. Utilities are already in place for water and sewer. We have recently won a summary judgment against the Town of Carbondale which preserves the original water right which came with the purchase of the property. An individual septic system will handle the waste water generated. 2. There is not enough extra traffic to warrant any street improvement. A nearby neighbor recently opened a wedding hall/conference center approximately %z mile up Prince Creek Road from us and no street improvements were needed for that. 3. The bam/shop/office is located far from Prince Creek Road and is sheltered from existing neighbors to the east in two ways. There is an earth berm at ditch level and the barn is actually at a lower grade than the berm by approximately 15 feet. The closest neighbor to the south is % mile away, and up on a hill. The neighbor to the west is downgrade approximately 6% and 500 feet away, and there are existing trees and shrubs which shelter that property from the existing bam. There are no signs indicating a business on the premises or any lighting other than the regular house lights. Please call us at 945-4545 if you have any questions. David and Connie Hicks RE: Information for Conditional Use Permit. C Page 1 of 1 OCT -27-R000 03:26P FROM:BLDGPLANGRRCO 9703845004 APPLICATION Special Use Permit GARFIELD COUNTY PLANNING DEPARTMENT 109 Eighth Street, Suite 303 Glenwood Springs, CO 81601 Telephone: 970.945.8212 Facsimile: 970. 384-5004 Submittal Date: 2 Base/Pc TO:99632140 Applicant: �carrt� DSI C � 111 C' • e T 8'2- Address of Apply Special Use Being Requested: 001/h/fr.'s f B Vl •=4 yvl u) 4-1 r ars c evne 1 ayee w5 ,/� 9 o hov�S 6/1 oY" 1�� on -• ,rare cl1 e lip • ee v 1� V Zone District Size of Property: 3 i 4C c re S (XJ C P:1/1 �.Y .• .I . .1 c Application Requirements: 1 ► " 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. proposed 2] If you will be using water or will be treating wastewater in conjunction with the p p ro use, please 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. O 4] A vicinity map. showing slope of your property, for which a U.S.G.S. 1:24,000 scale quadrangle map will suffice. 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 informatipn contained within this application is complete and correct, to the best of my knowledge: } / Applicant: • / / —�` Date: 2_2-0-0` 6a‘r4v,er- PC� LL-(. P I J JCC 0 10.cie� �2 �f ' k --c5 co -KJ o c fp!} ,`cctTlv2, RECEIVED FEB 2 1 2001 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 from housing for ranch employees into housing for persons other than ranch employees. 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 as long as the units are used to house ranch employees, but I am willing to apply for a special use permit to convert these multi -family units to house persons other than ranch employees 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 occupied by persons other than ranch employees. 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 by ranch employees. Thanks for your consideration. Sincerely, David Hicks argstres 1 111111 1110 111111 11111 111" 0111111111 III 11111 011567787 08/16/2000 03: 1 of 2 R 10.00 D 0.00 usRFIELD COUNTY CO Recorded the day of Reception It Recorder o'clock m. By QUIT CLAIM DEED HIT DEED, /lade this day of %h1141/ST /(o, 2000 between DAVID W. HICKS AND CONNIE F. HICKS Grantor, for the consideration of an TEN DOLLARS AND O111ER GOOD AND VALUABLE COIISIDERA11DR aee in hand paid, hereby sells and quitclaims to PC2, LLLP Granted, whose street address is 1051 PRINCE CREEK ROAD, CARBONDALE, CO 81623 City of County of GARFIELD State of Colorado the following real property in the S Rif p County of GARPIELD ond State of Colorado, to wit: AS SET FORTE' ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HERETO. also known as street end number TOGETHER with all its appurtenances. The singular rnnber shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders. Signed es of the day and year first above written. (it DAVID W. HICKS ,4 CONNIE P. HICKS State of Colorado ss. County of GARFIELD ) /7 The forego Ing instrument was acknowledged before me this day of all t e sr H', ZCzXI by DAVID W. HICKS AND CONNIE P. HICKS Witness my hand and of iclel seal. My camnission expires eit401 I'ff CammMBIOR EvIra 09/03/01 When recorded return to: DAVID W. HICKS 1051 VRIIICE CREEK ROAD CARBo1IOALE CO 81623 Form No. OCD (Ouit Claim Deed - 2/97) GW00 1 001 — LL o EXHIBIT "A" ACU m a LEGAL DESCRIPTION —28 "ENNnA tract of land situated in Lot 9, Section 10 and Lot 7,. Section 11, Township 6 1.111.1 N J NW South, Range 08 West of the 6th P.M. being more particularly described as —_mii follows: amm3 o Beginning at a point whence a Garfield County Brass Cap set as a witness corner 4.42 for the Southeast Corner of said Section 10 bears S 04°44'24" W 512.62 feet; ---0 . iimic040 thence West 1065.77 feet to a point in the Crystal River; thence along said CI Ll river N 00°24'08" E 392.88 feet; thence N 11°45'02" E 114.96 feet; thence N —m mm 29°24'12" E 326.48 feet; thence N 26°24'22" E 158.76 feet; thence N 23°04'47" E omm\ mi 477.57 feet; thence departing said river S 87°30'00" E 107.21 feet; thence S =ma 13°07'14" W 7.12 feet; thence S 85°10'51" E 63.49 feet; thence S 20"45'25" E om = N 48.46 feet; [hence S 83°47'37" E 111.00 feet; thence N 07°17'30" 8 26.83 feet; arsirr“G thence N 39°17'36" B 26.00 feet; thence N 56°10'52" E 22.06 feet; thence S n N 87°30'00" E 228.86 feet; thence N 00°28'45" W 15.20 feet; thence N 89°42'26" E 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 80°51'42" W 36.92 feet; thence S 37'31'19" W 216.01 feet; thence 5 24°06'58" W 83.25 feet; thence S 07°26'10" W 136.48 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 et District Court ❑ Probate Court ❑ Juvenile Court ❑ Water Court GARFIELD County, State. of Colorado. Court Address: 109 8th 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 ON CROSS MOTIONS FOR SUMMARY JUDGMENT Date: February 12, 2001 Proceeding: Cross Motions for Summary 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. dicks 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 %" 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 bis 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.R.C.P. 56; Greenwood Trust Co. v. Conley, 938 P.2d 1141 (Colo. 1997). The moving party 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'/." 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 ivas aware of the alleged misuse of the water practically from its inception and certainly before the three-year statute of limitations. C.RS. § 13-80-101(1). The action is barred because the statute of limitations has run. 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 has been injured by the defendant's wrongful conduct. Hannon 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 defmition 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. SeeMontrose 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 3 inch pipe to domestic uses including stock watering and support of a home office of a construction company. 1T 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. yL' \A ::`, OF MAILING I ce:irtify that a copy of Foregoing ws-.i ramie to all Counsel ofo ,t d of r BY THE COURT: _ 7 fudge. 210 TENTH STREET GLENW00D SPRINGS, COLORADO 81601 TELEPHONE (970) 928-9665 FACSIMILE (970) 928-9680 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 Dear David and Connie: GERALD D. HARTERT RONALD M. WILSON 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 any 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 ifa single-family 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 HOhihii'� March 12, 2002 To: Mark Bean, Don Deford, Ed Green, BOCC From Steve Hackett Subject: David Hicks Code Violations Enclosed are records on the Hicks property. Garfield County BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett &,,garfield-countv.com Tab 1. Building permit 6873, for a Barn, Shop and Employee Housing. Located on a 35 acre parcel split off from the original Cerise ranch. Plan shows two employee dwelling units in the barn. That is how it was permitted. Affidavit from Connie Hicks for employee housing dated 8-25-98. Certificate of Occupancy #3681 issued for Barn, Shop & Employee Housing, same as permitted. Currently occupied as free market dwelling and illegal two family dwelling. Tab 2. Building permit 7744, for a modular home to replace alleged pre-existing single wide mobile home employee housing. Located on the same parcel of land as the original Cerise home and the log bunkhouse. Was determined to be employee housing based on affidavits from Flavin Cerise dated 7-12-00 and 7-16-00. These affidavits were later contradicted by an affidavit from Flavin Cerise dated 11-17-00. Includes employee housing affidavit signed by David Hicks, but with a disclaimer hand written by Mr. Hicks at the bottom of the affidavit. Also includes a letter from Mr. Hicks claiming that the new modular won't be employee housing after the old single wide mobile is removed and asking that we consider the new modular to be a "remodel" of the old trailer! Currently occupied as an illegal accessory dwelling. Building Department records indicated that no final inspection has been done and no Certificate of Occupancy has been issued for this modular home. This permit has expired, per enclosed notice of 3-5-02. Tab 3. Building Permit 8058, to remodel and relocate log bunkhouse for employee housing. Located on the same parcel as original Cerise ranch. Employee housing affidavit signed by Mr. Hicks, 7-26-01. Affidavit from Flavin Cerise dated 7-12-00 verifies log bunkhouse previous use as a dwelling. Later affidavit from Mr. Cerise, dated 11-17-00 contradicts continuous use of log bunkhouse as a dwelling. Currently no work has been done on this permit. The permit has expired per notice of 3-5-02. Tab 4. Previous correspondence between this office and Mr. Hicks. 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 GARFIELD COUNTY BUILDING, SANITATION and PLANNING DEPARTMENT 109 Sib. Sheet, Suite 303 Glenwood Sprbip, CO 81601(970) 9458212 No, 6873 Job Address 1051 l .etr f -jj� Jd 1!! , e4 rrdg/0 l `. Nature of Work Rjj1aj31g Peti7nit Use of Building %estt-W(ii W/tth1/a POwner 'u� r Contractor e II '�'t� L e'hl/1It Amount ofPennitS c "r t 5. q (p Date %' 773'9 Q key& c_ yfll ?� QtApkit '. in•ac GARFIELA'COUNTY BUILDING PERMI1 t,PPLICATION GARFIELD COUNTY (G ENWOOD SPRINGS), COLORADO INSPECTION LANE: (970) 945.9159 PARCEL/SCHEDULE NO. TELEPHONE) (970) 9454212 Appliamt to complete numbered spaces ally. PERMIT NO. AGES/a/if PERMISSION I8 HEREBY GRANTED TO THE APPLICANT AS OWNER, CONTRACTOR AND/OR THE AGENT OF NE CONTRACTOR OR OWNER TO CONSTRUCT THE STRUCTURE AS DETAILED ONPLANS AND SPECIFICATIONS SUBMITTED TO AND REVISER!) BY THE BUBDTNGDEPARTMENT. IN CONSIDERATION OF 111E ISSUANCE OF THIS PERMIT, THE SIGNER HEREBY AGREES TO COMPLY WITH ALL BUILDING CODES AAV LAND USE REGULATIONS ADOPTED BY GARFIELD COUNTY PURSUANT TOAUIHORITI' GIVEN B730.21.201 CRS AS AMENDED. TATE SIGNER FTETHER AGREES THAT IP THE ABOVE SAN ORDINANCES ARE NOT FULY COMPLIED WITH IN 1118 LOCATION, ERECTION, CONSTRUCTION AND USE OF THE ABOVE DESCRIBED STRUCTURE THE PERMIT MAY THEN BE REVOKED TIY NOTICE FROM THE COUNTY AND THAT THEN AND THERE TT SHALL BECOME NULL AND VOID. THE ISSUANCE OF A PERMIT BMW UPON PIANS, SPECIFICATIONS AND OYER DATA STALL NOT PREVENT THE BUILDING OFPTCIAL FROM THEREAFTER REQUIRLYG 7HB CORRECHONOFEARORSIN SAIDPLANE SPECIFICATIONS AND OTHERDATA OR FAO PEEVENDNOWILDING OPERATION BEOIG CARRED ON THEREUNDER WHEN 1N VIOLATION OFTHIS CODE ORANY OTHER ORDNANCE ORREOULA'HON OF THIS IURISDICDON. VEREVEW OFTIESUEGETIPDPIANS AND SPECIFICATIONS AND INSPECTIONS CONDUCTED THEREAFTER DOES NOT CONSTITUTE AN ACCEPTANCE OF ANY RPSPONSIBILTTES OR LIABILITIES BY GARFIELD COUNTY FORSWORE, OMISSIONS OR DISCREPANCIES. THE RESPONSIBILITY FOR THESE ITEMS AND IMPLEMENTATION DURING CONSTRUCTION RESTS SPECIFICALLY WITHTIEARIUTBCT, DESIGNER, BUILDER AND OWNER COMMENTS ARE INTENDED TO BE. CONSERVATIVE AND IN SUPPORT OF TILE OWNERS INTEREST. GAMNmm3 IHEREBY AC}N 'LEDGE THAI' IHAVE READ AND LNDERST,WD THE AGREEMENT ABOVE. /INITIAL) {u) 8150 eAtt t(K TOB ADDRE85: (0,5( CK k t t C 14.e, bt- CO � ) L 04s 1 LOT NO, BLOCK NO. SUBDIVISION/EXEMPTION 2 own acv (61 I4; e An- ► as. p e P. ( 1 1 Cgrol qle ei. g - nz 3 ca RAC ID "1r I vl ce Gree k Co nA wcl a ""`°: 4 AsamttTmim+m: e4 O, dA 1(er I �7 (�£Sck A°0 4- 1 I66 iArafit ench °c�03 Sze -9z, LIC NO: 5 Ks monaS10b O yPLs, a lett C s0itS F PL faLM QO N1 112 acres �� 2 N0.0FFLOOFI 2 6 onCLI sto Ern I I LSk19p 4- Rep) !Iouciy19 WI (2-1) 2.ol't1F9 g LLW W 11mj \ ai IA0 7 ( 9 N/1- ° GOWNS Gant: MOONS 1 I 0DRNF1YAYYflJCT killI NVAa? PWG&H(WflC) '/�nu; V,WIAN N W IINI[:1 APFNIm YAwAn6P, A SEPARATE tby0RAD0. HSPFEABWBECOMS IS NOT 'SUSPENDED H COMMENCED. I HEREBY KNOW THE GOVERNING HEREIN ALRH. L4• ` y� ELECTRICAL COSMENCED ORABANDOWDPORAPRRri0OF CERTIFY THAT SAME ID TIM TIRE OR NOT. THE TO VIOLATE W AE A�, NOTICE PEWIT IS REWIRED AND MUST BE ISSUED BY TIE STATE OF NIEL AND VOID IF WORK DECONSTRUCTION AUTHORIZED WITHIN 1S0 DAYS, OR E CONSTRUCTION OR WORK IS 110 DAYS AT ANY TIME Ana WORK I HAVE READ AND EXAMI ED I1 N APPLICATION AND BE TRUE AND CORRECT. ALL PROVISIONS OP LAWS OF WORK WILBE COMPLIED WITH WHETHER SPECIFIED GRANTING OFA PERMIT DOES NOT PRESUME TO GIVE OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR TING CONSTRUCTION OR THE PERFORMANCE OP Dm (} ^3-I qat PLAN CHECK EEE: % IE,�/ / / e I I PERMIT FEE: r/ 4 1 7 / TOTAL FEE: - DATE ?WNW ISSUES: 9 1 yJI /i OCC: GROUP 4/ CONST:.TYPE:• J/I)/ IY `/ ZONWG: SETBACKS: SkAYre oFO(�Cawncv,,to�C�PjW, �S�c1ar0R Faliomed FRpeAtprvmS .. .. LWiw .. ISI %/f . (� ��7 , • JM AN). HOME: ISIS NO.&FEB:/3-40 C) Building Dept e Iambi Dept --ri . AGES/a/if PERMISSION I8 HEREBY GRANTED TO THE APPLICANT AS OWNER, CONTRACTOR AND/OR THE AGENT OF NE CONTRACTOR OR OWNER TO CONSTRUCT THE STRUCTURE AS DETAILED ONPLANS AND SPECIFICATIONS SUBMITTED TO AND REVISER!) BY THE BUBDTNGDEPARTMENT. IN CONSIDERATION OF 111E ISSUANCE OF THIS PERMIT, THE SIGNER HEREBY AGREES TO COMPLY WITH ALL BUILDING CODES AAV LAND USE REGULATIONS ADOPTED BY GARFIELD COUNTY PURSUANT TOAUIHORITI' GIVEN B730.21.201 CRS AS AMENDED. TATE SIGNER FTETHER AGREES THAT IP THE ABOVE SAN ORDINANCES ARE NOT FULY COMPLIED WITH IN 1118 LOCATION, ERECTION, CONSTRUCTION AND USE OF THE ABOVE DESCRIBED STRUCTURE THE PERMIT MAY THEN BE REVOKED TIY NOTICE FROM THE COUNTY AND THAT THEN AND THERE TT SHALL BECOME NULL AND VOID. THE ISSUANCE OF A PERMIT BMW UPON PIANS, SPECIFICATIONS AND OYER DATA STALL NOT PREVENT THE BUILDING OFPTCIAL FROM THEREAFTER REQUIRLYG 7HB CORRECHONOFEARORSIN SAIDPLANE SPECIFICATIONS AND OTHERDATA OR FAO PEEVENDNOWILDING OPERATION BEOIG CARRED ON THEREUNDER WHEN 1N VIOLATION OFTHIS CODE ORANY OTHER ORDNANCE ORREOULA'HON OF THIS IURISDICDON. VEREVEW OFTIESUEGETIPDPIANS AND SPECIFICATIONS AND INSPECTIONS CONDUCTED THEREAFTER DOES NOT CONSTITUTE AN ACCEPTANCE OF ANY RPSPONSIBILTTES OR LIABILITIES BY GARFIELD COUNTY FORSWORE, OMISSIONS OR DISCREPANCIES. THE RESPONSIBILITY FOR THESE ITEMS AND IMPLEMENTATION DURING CONSTRUCTION RESTS SPECIFICALLY WITHTIEARIUTBCT, DESIGNER, BUILDER AND OWNER COMMENTS ARE INTENDED TO BE. CONSERVATIVE AND IN SUPPORT OF TILE OWNERS INTEREST. GAMNmm3 IHEREBY AC}N 'LEDGE THAI' IHAVE READ AND LNDERST,WD THE AGREEMENT ABOVE. /INITIAL) {u) 8150 eAtt t(K • V ' t ey. .. . .n a in' ��.Nt. w • .1. • . I1 - • ?..1!”.. . . a ' +a:Y • • i 69 NWr6 //r c%C_g , state that the residential structure built under building permit # (0%' % ,is an employee dwelling unit provided to an individual(s) and /or his/her family, who derives the majority of their income from work on the property and pays no rent. It is agreed that this unit will not be used for residential occupancy for any person and/or family that is not employed on the property and is accessory to the previously constructed primary single family dwelling on the property. Proof of employment of individuals residing in said additional dwelling unit(s), which is the appropriate signed IRS Form 1099 and copies of workman's compensation insurance for each person employed shall be provided upon request by the Garfield County Building and Planning Department. It is further agreed that this property will not be sold to another party without representing that the additional dwelling unit is for employees only and cannot beused as a guest house or rental unit. Witness zs 7 Date t 4% • :. s A I, ` v -,, V V ' 11 ‘ ;'., N ',A \ NI" , ofr ..<0/ eh+, ...2475 evre‘, thdpic, vi? 4,4 -et-, . . " . .• - • ... -: -• T .. : ...it c.(2 4., SUILDING PERMITS -Q, * 8 .c. .. TERRACE (PATIO);4,1,, CD, I ENCLOSED * 8 CO r- 2 hi4:' g' 4., ,.., t L"' COVERED (OPEN) PORCHES .g, PORCHESS ..." I • '74 '..„,....,, .• 71 71 2_. . 7, fr A.,.. ' 0. q A„, Z § ADJUSTED BASE COST:4>;;3-e.;,:. r tri,1:tr.4 i..6:4"9"*.tt;,,,;,1,i.,;;eiC:, I • TOTAL BASE COST:EaikNke;‘;-;;-7,NO;t44,14,-rj.c1;*;:3Y--;-thre'' 3ASEMENT i -< E .? ABOVE FIRST FLOOR I ,rIRST 2 z e .'_ . . r;;;;;F:7177:r..;;;;S;:4•Ailittrit:t.'.; .119 — .. D® , L''. A' - .f:. 31 ;“•- 17 'i<:"_ 0 -ri "I . , 71 r7 SOLAR HEAT HOT TUB SAUNA WOOD STOVE YARD IMPS FIREPLACE_ *q1.HERrnMS , • , c 7 (-, ;p:. •.t. ? -:. t•.- , t !t: 5 .. - 1,- In, - -..., ", -0 "A. 1 - -is- 06000 ):: 0 , a .: . . . , - --, a a a 4. a in el a fa TOTAL COST.- I I TOTAL R.C.N.D. 0 xi 0 0 8 0 1 ECON. OBS I FUNCT. OBS COMP. FOR AGE 0 33 at 0 8 0 T > 0 rti c I YEAR BUILT DEPRECIATION Ti r REF°1' z 0 0 911133 P 0 ,3 co i -a T. iz- › (0 = - 6 1 ROOF COVERING 0 M 9 ..4 P m w 0 11 -I * 0 o x 13 m c c m 3) 0 2, ro 2 0 r 1 ROOF TYPE S 2 a EXTERIOR WALLS FOUNDATION N k % “1. ", • i \ es. x "... cie. .0 co 03 c M d M 33 g 2 M 2 * 0 < -0 P * CO -0 9 m m 9 2 0 0 > 0 0 > ccr - tO P g 615- Z CO F 0 CO ,c, rl z 71 at g 0 0) CO 0 X CO m x ............. ............ . ......... • • . .......... • • • • ' ........... . . . . . ........ .............. • ' ............ • • ............ . .' • . . . ........... : . : : . . -. . ............. . ' • • • ' • ... . .• . , S - APPtJANCES & MECHANICAL TOTAL $ n * t, I c ; -1- 2 c T, A.C. (IN HT. DCTS) AC. (IN OWN DCTS) EVAP. COOLER WL/FLR FURN. . ELECTRIC BSMT HOT WTR.. I HOT WTRJSTM n FORCED AIR ;- z TRASH COMP. SELF-CLN OVEN SMOOTH CK. TOP INTER. (REM -STA) m- R m _ INTER. (AM -FM) CENTRAL VAC DOUBLE OVEN ELECTRIC BBC] I m ,41- d 0 m z HOOD (CUS-CON) HOOD (CUS-STR) HOOD (STD) DROP-IN-RGE/OV WALL OVEN . 8 -1 ^ t „ - .., .t , w' 0 C. ..„ -C. C,, .t. . ...„ S ‘. r..... Z..14 1 . h h 4-'- 1 . . .. .. .. . . • 4" '"?. x F PPPE 4 4 4 1 ECTRN AIR CI- I WATER SOFT --.1 I SLID MB ENCL. I m 0 FIX BATH DISHWASHER a LLAUNDRY TRAY _I WATER HEATER I KITCHEN SINK. a STALL SHOWER ROMAN TUB I BATH TUB I 9 I 2 FOCIURE BATH 3/4 BATH 3 FIXTURE BATH § ' 1 , . . . , , - . . i :t3 • 4. 1 . . ..... 1.1%4 1 . , --4 *h ...ry - .. , Certificate of Occupancy 00 M 0 +Vo O 04 0r F.� A o a U it to aa 03 tu .9 ao tbis oba U 0 U o � b ab o 8n M a o PI 3 a• 3 t ate. cep t2 H Fr ca .w 0 tris N m Zone District 0 ai 4-4 r§ b dgC CO 81623 Locality August 19,1999 o w • Ag0 01 • �. w o O .d O V 0 ▪ g e • 0 0 o S ;- s E• ° w • � e u ▪ a E a° • _,A e • t A 0 M 0 VI o oto o tm7 p • 10 • th as I1!I - V a fe9 a U u d. a a�.5 4 O • Job Address IDs1 as ut,Q ,41C Co GARFIELD COUNTY BUILDING, SANITATION and PLANNING DEPARTMENT 109 8th. Street, Suite 303 Glenwood Springs, CO 81601(970) 945-8212 Nature of Work Building Permit No. 7744 Use of Building 1-14- 00 Totiopicrio ,\ Owner 4-%\C. b401.0 1v Contract° Amount of Permits inc, , Z t .�vw1,.k 2-I Z • Z 1F,t 1379 ysbs lse3.0c) Date Z OD GARFIE,LI 20UNTY BUILDING PERM' . APPLICATION GARFIELD COUNTY (GLENWOOD SPRINGS), COLORADO TELEPHONE: (970) 945-8212 Applicant to complete numbered spaced only. PERMIT NO. INSPECTION LINE: (970) 945.9159 PARCEL/SCHEDULE NO. I -I tU1 `-V d A- - "� -7i s JOB ADDRESS: ���P� ,/ [J —herb D eOOA/TV Ro R 1 /1/ I Lor No. IC NO. SEE LEGgL OA) Al AcHED MAP SUBDIVJSION/rxEMpnoN 2 DAvitscea)AI/e f4)GK5 is o Co.2d,)Il C9R3onits s, CO INK INK PK91o3 8)82 3 bN MC 08 FS Ft ( aouNra-y /4-oJxa.S DA 2a rot) -Boc 2 )Z9 A/Ec) CAsT�E, co PR 981-3SzQ I C NO: 4 ARCID6C /ENCuffi �t �164LA/ar c F OM ADDRESS Ce,vre4L C.ITY_ALE Pg IICNO: 5 S4 T.OPBOBDWO ' 49�J f SQ. PT. OPLOT Z�/7c ES C MOT<i51i/)! ✓ NO.OFPLOORS 6 OSE OP BMDNO R.fA EIDe�uct Sr Di06wI.DG,- 7 °°S— SCD Geos tlTOnA6 oIJ -Pe er%4Astkwr Flo 0011 Io 114 8 CIMS OPWORi °AMMON °ALTERATON °HOVE - vNEVOVE 9 CARAT °MNOPE ()DOUBLE CARPORT: olflO1E ®()DILE 10 OORIVRWAYPBdPDi DON ME SEWAGE [DEPOSAL (BYPPNC) 04lE PLN VALUANON flea t ADJUSTED RAID/MOM SPEC/AL COMMONS: POD Iss.. ' j' -ter_ CA0+314- # 641--q• NOTICE A SEPARATE ELECTRICAL PERMIT IS REQUIRED AND MUST BE ISSUED BY TEE STATE OF COLORADO. TIES PERMIT BECOMES NULL AND VOID PLAN CBECKPFE //�P ( 3 9 i (0 PERMITTEE Z Z S— 2 r , IF WORK OR CONSTRUCTION AUTHORIZED IS NOT COMMENCED WITHIN 180 DAYS, OR IF CONSTRUCTION OR WORK IS SUSPENDED OR ABANDONED FOR A PERIOD OF 180 DAYS AT ANY TIME AFTER WORK IS COMMENCED. I HEREBY CERTIFY THAT TOTAL FEE:DATE PERMIT ISSUED: 1/ 0 rJ 2 ` / / ' L I HAVE READ AND EXAMINED MS APPLICATION AND KNOW THE SAME TO BE TRUE AND CORRECT. AIL PROVISIONS OF LAWS GOVERNING MIS TYPE OF WORK WILL BE COMPLIED WITH WHETHER SPECIFIED HEREIN OR NOT. THE GRANTING OF A PERMIT DOES NOT PRESUME TO GIVE-- AUTHORITY TO VIOLATE OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR LOCAL OCC: GROUP:�� CONST: TYPE: 3 ^ LAW REGULATING CONSTRUCTION OR THE PERFORMANCE OF CON UCITON/. % '�-/C�////�•�'����^`��,�) DPh ZONING: SETBACKS: of Owner,r,CO➢Pttotor or authorized agent . •1• dDd .. • i Do: above. de• 71 _ - ` �1 db i . 414 Silcfig - , S' HOME: NO. &FEE. - Budding Dept Approval/Date T,� .',. _ Dept. 1�!M' ! . �r� I D , O Cl i AGREEMENT `f" •..•• / PERMISSION IS HEREBY GRANTED TO THE APPLICANT AS OWNER, CONTRACTOR AND/OR THE AGENT OF TBE CONTRACTOR OR OWNER TO CONSTRUCT THE STRUCTURE. DETAILED ON PLANS AND SPECIFICATIONS SUBMITTED TO AND REVIEWED BY THE BUI.DINGDEPARTMENT. IN CONSIDERATION OF THE ISSUANCE OF THIS PERMIT, THE SIGNER HEREBY AGREES TO COMPLY WITH AIL BUILDING CODES AND LAND USE REGULATIONS ADOPTED E GARFIELD COUNTY PURSUANT TO AUTHORITY GIVEN IN 3018.201 CRS AS AMENDED. TBE SIGNER FURTHER AGREES THAT W THE ABOVE SAID ORDINANCES ARE NOT FULL COMPLIED WITH IN THE LOCATION, ERECTION, CONSTRUCTION AND USE OF THE ABOVE DESCRIBED STRUCTURE, THE PERMIT MAY THEN BE REVOKED BY NOTICE FRO THE COUNTY AND THAT THEN AND THERE IT SHALL BECOME NULL AND VOID. THE ISSUANCE OF A PERMIT BASED UPON PLANS, SPECIFICATIONS AND OTHER DATA SHALL NOT PREVENT THE BUILDING OFFICIAL FROM THEREAFTER REQUIRING TI CORRECTION OF ERRORS IN SAID PLANS, SPECIFICATIONS AND OTHER DATA OR FRO PREVENTING BUILDING OPERATION BEING CARRIED ON THEREUNDER WHEN VIOLATION OF TH1S CODE OR ANY OTHER ORDINANCE OR REGULATION OFTIIS JURISDICTION. THE REVIEW OF THE SUBMITTED PLANS AND SPECIFICATIONS AND INSPECTIONS CONDUCTED THEREAFTER DOES NOT CONSTITUTE AN ACCEPTANCE OF Al RESPONSIBILITIES OR LIABILITIES BY GARFIEID COUNTY FOR ERRORS, OMISSIONS 011. DISCREPANCIES. THE RESPONSIBILITY FOR THESE 17.T?MS AND IMIPLBMENTATI( DURING CONSTRUCTION RESTS SPECIFICALLY WITH THE ARLHIJ ECT, DESIGNER, BUILDER AND OWNER COMMENTS ARE INTENDED TO BE CONSERVATIVE AND IN SUPPOI OF THE OWNERS INTEREST. 4/54:��3 9� _CI(TNgWLFDC£ MAT I HAVE READ AND UNDERSTAND THE AGREEMENT ABOVE. (INITIAL) 01/11; � k/aotaa• /� SU! 07/13/2000 14:52 370-363-2140 Memorandum PRINCE CREEK CONST PAGE 02 To: Arno, Garfield County Building Department CC: From: Prince Creek Construction, Joe Mueller Date: 7/13/00 Re: Proof of residence prior to zoning The attached letter from Mr. Flaven Cerise verifies that the existing trailer on the Hicks Ranch Property has been in place since early 1972. The enclosed Photo's from the soil conservation district indicate the trailer was present in 1978 and 1990. The soil conservation district had a photo taken in 1968 that did not show the trailer so that photo is not included. As you may be aware, Mr. Hicks has applied for a building permit through Bell Country Homes to place a new modular building on the ranch to replace the existing trailer. The plans for the modular have already been submitted. If you have questions please contact me at 963.8182. Thank you. Enclosures Copy: Bell Country Homes DIU-DUO-414G TO WHOM IT MAY CONCERN; YK11VUt L ttK I:UIYS I YAUL Uj To the best of my knowledge, the trailer now situated on the Hicks Ranch, which I formerly owned, was placed by me where it is now as employee housing in the spring of 1972. Our hired ranch hands and their families have occupied it since that time while I owned the ranch. The two room log building referred to as the "bunkhouse" was built around 1940 and was continually occupied for many, many years by my father, Victor Cerise, who owned the ranch during that period. Date; 7r - a10 Signed; State of Colorado ) County of Mesa ) Subscribed and swom to me before this day ofd46.7___ 2000, by Raven J. Cerise. My Commission expires 1 / •off •r;' Witness my hand and seal. i • .+i mono 970-963-2140 PRINCE CREEK CONST To Whom It May Concern, To the best of my knowledge, the trailer now situated on the Hicks Ranch, which I formerly owned, was placed by Some renters eofd this me where it is now as housing in the spring of 1972. trailer were our full tinte hired ranch hands and their families. Some renters were part time ranch hands who received a reduction in rent in exchange for their help. Some renters had no employment on the ranch and just paid rent. In my opinion, at the point in time that the county approved the placement of this trailer on my ranch, there was no condition put on this trailer that it be used only for employee housing, The two room log building, that we referred to as the "bunkhouse", was built around 1940 and was continually occupied for zany, many years by my father, Victor Cerise, who owned the ranch during that period. State of Colorado 64, kid Cotta4: Subscribed and sworn to me before this / 4� C J. Cezise, day of 2000, by Flavin My Commission expires Witness my hand and seal. -Uy PAGE 02 rent rpt Div s A .4rNuf7 y AFFIDAVIT OF FLAVEN CERISE I, PLAVEN CERISE, being over the age of eighteen years and first duly sworn, state as follows: My address is 3260 N. 12"' Street, Apt. 241, Grand Junction, Colorado 81501.. My phone number is (970) 243-8361. 2. 1 am 79 years old. I, and my father before me, formerly owned certain property south of the Town of Carbondale that is now owned by David and Connie Hicks, the address of which is 1047 County Road 111, Carbondale (the "hicks Property"). 3. During my family's ownership of the Ilicks Property from 1953 until 1993, there were never more than two small residences on the property at any one time. During the entire period from 1953 through 1993, the main ranch house was on the property. It [contained 4 bedrooms,1 bathroom and one kitchen. It was connected to the Town bf Carbondale's water system from before 1953 through 1993. I lived in the ranch house from 1947 to 1993. My wife and I also had 3 children living with us in the ranch house from about 1947 to 1974. rom 1953 through about the early 1960s, a small "bunkhouse" was also on the roperty, which structure was also connected to the Town's water supply. My titer, Victor, lived in the bunkhouse alone. There was only one sink in the itchen in the bunkhouse, no bathroom. After my father vacated the bunkhouse in he early 1960s, the bunkhouse fell into disrepair and, to my knowledge, has never een occupied again. In 1972 or 1973, I entered into a lease agreement with Charles Thomas to run cattle on his ranch. I hired a ranch hand to help me with my herd and the herd 'on the Thomas place. I broright a standard size mobile home onto my property to house this ranch Band in about',1972 or 1973. To the best of my recollection, the mobile home had two bedrooms, one•bathroom and a kitchen. From that time until I sold niy property to the Hicks in 1993, I usually had a ranch hand living in the mobile home. These ranch hands sometimes lived alone, and sometimes had a wife or children living with thein, but only one family lived in the mobile hone at any point in time. Never, at any point in time from 1953 to 1993, was anyone living in any structure on the property other than the ranch house and the bunkhouse (from 1953 until early 1960s) or mobile home (from 1972 or 1973 until 1993). 6. My wife and I operated a srriall dairy on the property now owned by the 1 -licks from about 1953 to 1973. We normally had about 18-21 dairy cows. The dairy Affidavit of Haven Cerise • Page 2 cows did not always drink Town water because ditch water was routinely available to the property in the sunnier months and the cows often had access directly to nearby streams (Prince Creek or the Crystal River). During about the first two years that the dairy was in operation, we used Town water to cool milk. A iter the first two years, we purchased coolers and no longer needed Town wafer to cool the milk. Any watering troughs associated with (lie dairy operation always had float valves on them so that the water was turned off when the tanks were full. The watering trough in the dairy had an electric heater to prevent freezing in the winter, which also saved water. 7. During the times that my father and I owned the hicks Property, we held a grazing permit for 64 head of cattle. These animals were run on public land through most of the year, ut were brought back to the property now owned by the [licks for the winter and far calving each year. As stated above, I also began leasing and running cattle on the Thomas place in the early 1970s. The Thomas' held a grazing permit for an additional 90 head. After I leased the Thomas place, I kept about 9G to 100 animals were on the hicks Property between about February 1 trough May 1 of each. However, only roughly 60 head were usually on the property now owed by the flicks from about November 15 Through February I of each year. ')'hese animals drank from a watering trough connected to Town water. The connection to Town water was kept flowing to prevent freezing when necessary, but the end of the line was fitted with a metal cap with a 1/16" hole in order to reasonably restrict the flow and thereby prevent the waste of water. When i sold the property in 1993, 1 did not self my grazing permit -to the hicks. I sold the grazing permit to Paul Nieslanik, who keep their cattle at their own ranch in the winter. 8. My father and I did not use Town water for any substantial outdoor irrigation from 1953-1993. This is because, during the irrigation season, water flows in. the Ella Ditch adjacent to the ranch house. 1 installed a pump in the ditch and connected two hoses to it for the purpose of irrigating areas around the ranch house and the bunkhouse or mobile home. Given the water pressure problems that my fancily often experienced with the Town water line, it would have been impossible to use Town water for irrigation. We also recognized that non -potable water was available from the ditch, and that it was therefore unnecessary to use treated water from the Town line for irrigation. 9. Although I have no way of knowing precisely how much Town water was used on the flicks Property when my faintly owned it, my father and 1 made every effort • • Affidavit of Plaven Cerise Page 3 to conserve water. I always relied upon ditch or river water for irrigation and Mock when such water -was available, and we took reasonable steps not to waste 'Town water. Town water was used inside the two dwellings on the property and for livestock, but not for non-agricultural commercial purposes or significant outdoor irrigation. STATE OF COLORADO ) ) ss. COUNTY OF MESA The foregoing Affidavit was acknowledged, subscribed, and sworn to before me this r\ day of November, 2000, by Plaven Cerise. WITNESS my hand and official seal. My Commission expires: ADDU . Notary Public GARFIELD COUNTY Building and Planning v . 4 ` G 3 , state that the existing residential structure built under permit # will be used solely as an employee dwelling unit provided to an individual(s) and/or his/her family, who derives the majority of their income from work on the property at which the dwelling is located and, further, pays no rent. It is agreed that this unit will not be used for residential occupancy for any person and/or family that is not employed on the property and said dwelling is accessory to the primary residential dwelling, on this. property, for which a building permit has been applied for or has been issued, Permit # Itis agreed that proof of employment of individuals residing in said additional dwelling unit(s), which is the appropriate signed Internal Revenue Service Form 1099 and copies of workman's compensation insurance for each person employed, shall be provided, upon request, by the Garfield County Building and Planning Department. Itis thither agreed that this property will not be sold to another party without representing that the additional dwelling unit(s) is/are for employees only and cannot be used as a guest house, rental or accessory dwelling unit. If the unit is to be used as an accessory dwelling unit, it shall be demonstrated, by the owner of said unit, that it complies with all applicable provisions of the Garfield County Zoning Resolution of 1978,: as amended. C),J Name Date Witness 1- ES 0 ree 4 3v7 re vin o l cid O e S4N)3i (pre -;7 o'5 wcbJe home (4-k f f11tS new nricsocLt lac i"s rcpj&cCv‘3) 11),1/45 c se Cres i- fm c '\-; o to W i 1 ) l no ie vio 4-0 rdle n G� vv YY) O c l.t 1 A lr. wv�! `(/U V� o-4/ C -- 11-00 945-8212/285-7972 Glenwood Springs, Colorado 81601 109.8th Street, Suite 303 June 11,2000 Mr. Mark Bean Garfield County Building & Planning 109 8th St. Suite 303 Glenwood Springs, CO 81601 David Hicks 1051 County Road 111 Carbondale, CO 81623 Dear Mark, 1 am sending this letter to explain why I have added a note on the bottom of the employee dwelling unit form. Presently, on the ranch, there is a pre -1970's mobile home which was placed there either by Flaven Cerise or his father, Victor Cerise. We are replacing this existing modular that has become unserviceable with a new modular. The existing modular does not have the employee housing restriction on it and I am unwilling to put this restriction on the replacement modular. This should be considered a remodel of an existing unit. I have signed the employee dwelling unit form with the understanding that upon removal of the pre -1970's mobile home (that the new modular is replacing) the use restriction will no longer apply to the new modular. 1 will be out of town until July 5, however I have authorized Joe Mueller to talk to you about this in my absence. His number is 618-1035. QA/G) David Hicks Garfield County BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett(a garfield-county.com Date: 3 -" 5= 0 z.Z0610 11_ - Dear Permit Holder, ����( Please refer to your building permit number 7.$ t / , issued 1,2 A routine review of our open buildinermits indicates that we have not received a request for an inspection on this permit since 12-1 "1U. Please be advised that building permits expire, per Uniform Building Code, section 106.4.4 and 106.4.5, 180 days after they are issued, if the work authorized by the permit has not commenced or is suspended or abandoned. The permit may be extended by written request to the building official, showing that circumstances beyond your control have caused a delay. Permits that have been expired for 180 days or less may be renewed for one half of the original permit fee. Permits that have been expired for longer than 180 days require payment of a new full permit fee. Please contact this office at your very earliest convenience, in writing, to advise about the status of your permitted work. If you have not responded within thirty days from the receipt of this notice the permit will be closed and a permanent notation will be placed in the property records at the County Assessors office that indicates that the work permitted was not inspected, is not approved and that the building or area may not be legally occupied. Thank yop for your cooperation. Sincerely, 2< Building Inspector 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 GARFIELD COUNTY BUILDING, SANITATION and PLANNING DEPARTMENT 109 8th. Street, Suite 303 Glenwood Springs, CO 81601(970) 945-8212 No. 8058 Job Address /05/ C , eja. /7/ a(9 1C ar%o Nature of Work Building Permit Use of Building ���� 4 ` .. / ? ti t. J &L.'- Aq R < J c (Tuner f 't/t , >CLv z J ?c c Contractor Amount of Permits 606. 7 9 Date I v At m= /3 6 7, 75 �l Li- t7. /`e47 ,2.39,,„ 606'75 e Clerk Pr/CAL JUL-26-2001 '11: 10R FRDM: SLDGP' 1NGf#RCD 9703843470 VVO UVJ -0;9P9632140 P:2/2 GARFIELD COUNTY Building and Planning state that the existing residential structure built under peimit # 30s ? will be used solely as an employee dwelling unit provided to an individuals) and/or his/her family, who derives the majority oftheir Income from work on the property at which the dwelling is located and, fuober, pays no rent. It is agreed that this unit will not be used for residential occupancy, for any person and/or family that is not employed on the property and said dwelling is accessory to the primary residential dwelling, on this, property, for which a building permit has: been applied for or has been issued, Permit # ff 052 2 7/"/oI It is agreed that proof of employment of individuals residing in said additional dwelling unit(s), which is the appropriate signed Intenial Reveiue Service Form 1099 and copies of workman's compensation insurance for each person employed, shall be provided,' upon re and Planting Department. gnest, b3'the Garfield County Building Itis further agreed that this property will not be sold to another party without rtpresenting that the additional dwelling unit(s) is/are for employees only and cammot'be used as a guesthouse, rental or accessory dwelling unit If the unit is to be used is an accessory dwelling unit, it shall be demonstrated, by the owner of said utht, that it complies with all applicable provisions of the Garfield County Zoning Resolution of 1978, as amended: witne,4s ey prev1�chs rC Vi.cftVAril7 fY+vo-v- s 109 8th Street, Suite 303 i v[CX• Fin /j�h z4 -o/ Date k. 110 owl, la, d44_ .[ CSS, a -S sc` raxVi C e o A r1� 04S-82n2/28S-7972 Glenwood Springs, Colorado 81601 GARFIELD .,OUNTY BUILDING PERMIT riPPLICATION GARFIELD COUNTY (GLENWOOD SPRINGS), COLORADO TELEPHONE: (970)945-8212 PERMIT NO. INSPECTION LINE: (970)384 5003 PARCEL/SCHEDULE NO., -21163 11 OCCODO AGREEMENT PERMISSION IS HEREBY GRANTED TO THE APPLICANT AS OWNER, CONTRACTOR AND/OR THE AGENT OF THE CONTRACTOR OR OWNER TO CONSTRUCT THE STRUCTURE AS DETAILED ON PLANS AND SPECIFICATIONS SUBMITTED TO AND REVIEWED BY THE BUILDINGDEPARTMENT. IN CONSIDERATION OF THE ISSUANCE OF MS PERMIT, THE SIGNER HEREBY AGREES TO COMPLY WITH ALL BUILDING CODES AND LAND USE REGULATIONS ADOPTED BY GARFIELD COUNTY PURSUANT TO AUTHORITY GIVEN IN 30.28.201 CRS AS AMENDED. THE SIGNER FURTHER AGREES THAT IF THE ABOVE SAID ORDINANCES ARE NOT FOLLY COMPLIED WITH IN THE LOCATION, ERECTION, CONSTRUCTION AND USE OF THE ABOVE DESCRIBED STRUCTURE, THE PERMIT MAY THEN BE REVOKED BY NOTICE FROM THE COUNTY AND THAT THEN AND THERE IT SHALL BECOME NULL AND VOID. THE ISSUANCE OF A PERMIT BASED UPON PLANS, SPECIFICATIONS AND OTHER DATA SHALL NOT PREVENT THE BUILDING OFFICIAL FROM THEREAFTER REQUIRING THE CORRECTION OF ERRORS 114 SAID PLANS. SPECIFICATIONS AND OTHER DATA OR FRO PREVENTING BUILDING OPERATION BEING CARRIED ON THEREUNDER WHEN IN VIOLATION OF MIS CODE OR ANY OTHER ORDINANCE OR REGULATION OF THIS JURISDICTION. THE REVIEW OF THE SUBMITTED PLANS AND SPECIFICATIONS AND. INSPECTIONS CONDUCTED THEREAFTER DOES NOT CONSTITUTE AN ACCEPTANCE OF ANY RESPONSIBILITIES OR LIABILITIES BY GARFIELD COUNTY FOR ERRORS, OMISSIONS OR DISCREPANCIES. THE RESPONSIBILITY FOR THESE ITEMS AND IMPLEMENTATION DURING CONSTRUCTION RESTS SPECIFICALLY WITHTHE ARCHITECT, DESIGNER, BUILDER AND OWNER COMMENTS ARE INTENDED TO BE CONSERVATIVE AND IN SUPPORT OFTHE OWNTd49A'I'EREST. FI I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE AGREEMENT ABOVE. (INITIAL) JOB ADDRESS: i0 ) — 1 1 I I\ Cd aar oo1mQiC 1 LOT NO. NO. SUBDMSION/EXEMPTION 2 PyB�LOCK ] I 1 1 Cc °WNPII �///��� [ ADDRESS /j / 1 i y ♦C) PN / 3- V wK PH qb3 Vl X( 3 yyy( courreCf0R 11 C( ., JOR ADDRESS t S/- / ` / ka ^ PN�,4/ 3'8)BZ llC NO: 4 ARCHOECfhN vl�. `-' I J 'L\ 1 e . ADDRESS Pp, \ 2 /,5NCNO: /6 5 SQ. FL OF HORDING /` `/1 51n SQ.PI.OFLOP QO III' o i+ r� S IJV Nmoar j b NO. OF FLOORS 2 6 usEoeaunnwG Res (� E C a A 7 DESCRIBE WORE �% eYY)o / I j / /_ • e Ra(0act+c PKCs•c-trnq 108 gLt{/I(.C�'IC(-t S 8 C� ; axsarwoRE: aemw GADDmoN �ALTERnnmv grow °RVLovE ``````��n��n �. '' 9 A GARAGE Abik 0SINGIE ODOVBIE CARPORT DD40LE oD0uel8 /� 10 (n� 0 DRIVEWAY PERMIT lI / Y{�qP/ / /' - O°N SME SEWAGE DOPORAL(SEPTIC OSrtEPLW VALUATION OF WORM 5/- C300 ADJUSTED VALUATIONS SP crnemon. Erne +�� houS+r o/9FC lam' 6V" /}1— free t „j Ir."- In )— — si1.77 1/riTi'Z�i griniliteavor•ar—ei -- NOTICE A SEPARATE ELECTRICAL PERMIT IS REQUIRED AND MUST BE ISSUED BY THE STATE OF COLORADO. THIS PERMIT BECOMES NULL AND VOID PLAN CHECK FEE: /U x,.39 ,o q:( PERMIT FEE: /Y` 3 C7,, IF WORK OR CONSTRUCTION AUTHORIZED IS NOT COMMENCED WITHIN 180 DAYS, OR IF CONSTRUCTION OR WORK I5 SUSPENDED OR ABANDONED FOR A PERIOD OF 180 DAYS AT ANY TIME AFTER WORK IS COMMENCED. I HEREBY CERTIFY THAT I HAVE TOTAL FEE:TV DATE PERMIT ISSUED: �/T O '7 /1 `� READ AND EXAMINED THIS APPLICATION AND KNOW THE SAME TO BE TRUE AND CORRECT. ALL PROVISIONS OF LAWS GOVERNING THIS TYPE OF WORK WELL BE COMPLIED WITH WHETHER SPECIFIED HEREIN OR NOT. THE GRANTING OF A PERMIT DOES NOT PRESUME TO GIVE AUTHORITY TO VIOLATE OR CANCEL THE PROVISIONS OF ANY OTHER STATE OR OCC: GROUP: CONST: TYPE: / if? - S V, V LOC CO TA LAW RE TING CONSTRUCTION OR THE PERFORMANCE OF C1TON / /�c n^ [ '7 `-'Y' I��- Date 6--2 SETBACKS: Sign of Owner, Contractor or authorized ag roadtoodn°Kce a 1 at 7.79 Clegilt4 7f,. �} ) rage �• 6) MANU. .e `` gig HOME: /�T4p ed el Building Dept. Apprized/Date / Planai°g Depe. ata - " RSV 1S . /CfA/Ol>V AGREEMENT PERMISSION IS HEREBY GRANTED TO THE APPLICANT AS OWNER, CONTRACTOR AND/OR THE AGENT OF THE CONTRACTOR OR OWNER TO CONSTRUCT THE STRUCTURE AS DETAILED ON PLANS AND SPECIFICATIONS SUBMITTED TO AND REVIEWED BY THE BUILDINGDEPARTMENT. IN CONSIDERATION OF THE ISSUANCE OF MS PERMIT, THE SIGNER HEREBY AGREES TO COMPLY WITH ALL BUILDING CODES AND LAND USE REGULATIONS ADOPTED BY GARFIELD COUNTY PURSUANT TO AUTHORITY GIVEN IN 30.28.201 CRS AS AMENDED. THE SIGNER FURTHER AGREES THAT IF THE ABOVE SAID ORDINANCES ARE NOT FOLLY COMPLIED WITH IN THE LOCATION, ERECTION, CONSTRUCTION AND USE OF THE ABOVE DESCRIBED STRUCTURE, THE PERMIT MAY THEN BE REVOKED BY NOTICE FROM THE COUNTY AND THAT THEN AND THERE IT SHALL BECOME NULL AND VOID. THE ISSUANCE OF A PERMIT BASED UPON PLANS, SPECIFICATIONS AND OTHER DATA SHALL NOT PREVENT THE BUILDING OFFICIAL FROM THEREAFTER REQUIRING THE CORRECTION OF ERRORS 114 SAID PLANS. SPECIFICATIONS AND OTHER DATA OR FRO PREVENTING BUILDING OPERATION BEING CARRIED ON THEREUNDER WHEN IN VIOLATION OF MIS CODE OR ANY OTHER ORDINANCE OR REGULATION OF THIS JURISDICTION. THE REVIEW OF THE SUBMITTED PLANS AND SPECIFICATIONS AND. INSPECTIONS CONDUCTED THEREAFTER DOES NOT CONSTITUTE AN ACCEPTANCE OF ANY RESPONSIBILITIES OR LIABILITIES BY GARFIELD COUNTY FOR ERRORS, OMISSIONS OR DISCREPANCIES. THE RESPONSIBILITY FOR THESE ITEMS AND IMPLEMENTATION DURING CONSTRUCTION RESTS SPECIFICALLY WITHTHE ARCHITECT, DESIGNER, BUILDER AND OWNER COMMENTS ARE INTENDED TO BE CONSERVATIVE AND IN SUPPORT OFTHE OWNTd49A'I'EREST. FI I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE AGREEMENT ABOVE. (INITIAL) 0 3 esaVM;p A3uno0 opemlo3;o awls Not v 3 °1-1 „T `G a (D W5N 2gSo 0= • c 7. y a co O 1) .44 R g N .0 so. m yam aa0• o 3 5. � _ o wd o 3:;g , O T U) 3 41.1PQar alay 130N00 v; V Z ght\s'i ° H I m (o0PLY4 .%.tw :tri. /// DRAFT -Or K//f -� RECEIVE© JUL 1 1 a1 Mr. David Hicks Prince Creek Construction 1051 Prince Creek Road Carbondale, CO 81623 July 1, 2001 RE: Bunk House Remodel Dear Mr. Hicks, At your request an inspection was conducted to determine the structural integrity of your log structure. The logs in question are to be used for exterior walls with some window and door locations. You have in your possession plans for the addition of a new roof, loft, and foundation design. The logs appear to be in excellent condition for their use as exterior walls. They show no rot even at the base of the foundation log intersection. They have been weathered, but well constructed such that water has not pooled causing wet/ dry cycles. Also, the logs will only be employed in compression and are adequate for their intended use. The existing log walls shall be used in the remodel of this log structure. Thane R. Lincicome, P.E. taeCosi 10* t 4c.10 tret Lig 7 `• 1 T: I 1 i 7/P/0 / • 5314 COUNTY ROAD 154 • GLENWOOD SPRINGS, CO 81601 •(970) 384-0513 • BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett4i gariield-county.com Date: 3 --3= C —, Dear Permit Holder, Please refer to your building permit number reefissued 7 -027 -o/ A routine review of our open building permits indicates that we have not received a request for an inspection on this permit since ✓77 Please be advised that building permits expire, per Uniform Building Code, section 106.4.4 and 106.4.5, 180 days after they are issued, if the work authorized by the permit has not commenced or is suspended or abandoned. The permit may be extended by written request to the building official, showing that circumstances beyond your control have caused a delay. Permits that have been expired for 180 days or less may be renewed for one half of the original permit fee. Permits that have been expired for longer than 180 days require payment of a new full permit fee. Please contact this office at your very earliest convenience, in writing, to advise about the status of your permitted work. If you have not responded within thirty days from the receipt of this notice the permit will be closed and a permanent notation will be placed in the property records at the County Assessors office that indicates that the work permitted was not inspected, is not approved and that the building or area may not be legally occupied. Thank you for your cooperation. Sincerely, Building Inspector 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 ''ax: (970) 384-3470 BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett(a� Barfield -county, com February 28, 2002 Mr. David Hicks and PCI, LLC CIO Prince Creek Construction 1317 Grand Avenue, Suite 101 Glenwood Springs, CO 81601 Dear Mr. Hicks, Please refer to our previous correspondence, as well as a letter from Kim Schlagel, dated January 24, 2002, concerning various zoning violations on property owned by you and PCI, LLC, known as assessors parcels 2463-113-00-075 and 2463-104-00-076, located at 1051 County Road 111 in unincorporated Garfield County. As of this date more than a year has passed without action from you to correct these violations. It continues to be a violation of CRS 30-28-124 & 124.5, Garfield County zoning regulations, to occupy the modular home on your property as a free market rental unit without a Special Use Permit for an accessory dwelling. The same laws are being violated by occupancy of the barn apartments without a Special Use Permit for a two family dwelling. You are hereby given notice, pursuant to the above statutes, that you must completely correct the violations within thirty (30) days of the date this notice is received. Please be advised that violation of the above statutes is a misdemeanor crime punishable by a fine of not more than $100.00 or imprisonment for not more than ten days, or both, and that each day that the violation continues is deemed to be a separate offense. If you have not responded within thirty days of this notice we will schedule a hearing, during a regular meeting of the Garfield County Board of Commissioners, during which this matter will be reviewed with them and a request made that it be referred to the county attorney for legal action against you. If you have any questions regarding what actions are required to achieve compliance, or you wish to report compliance action taken, please contact this office in writing at the address below, or by e-mail at the address above. Sincerely, Compliance Officer 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 Garfield County BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett(aigarfield-countv.com February 25, 2002 To: Kim Schlagel From. Steve Hackett Subj: David Hicks Code Violations Concerning Building Permits: We issued two building permits, one (8058) to remodel an old log house for employee housing, the other (7744) to place a modular home as a replacement for an existing single wide mobile. An affidavit provided to us by Mr. Flavin Cerise, former owner, dated 7/12/00, seemed to indicate that both the log house and a single wide mobile had been in continuous use as employee housing. A new affidavit from Mr. Cerise, dated 11/17/00, contradicts the original one and seems to indicate that the log house use, as employee housing, was discontinued in the early 1960's and never resumed. The presumed pre- existing non -conforming use of the old log house as employee housing was wrong. Legally, it's probably too late to do anything about that. Currently there are three dwellings on the lot known as 1051 County Road 111. The old original Cerise home which is the primary dwelling as a use by right, the log house being used as employee housing and the modular home also being used as employee housing or being rented on the free market. My conclusions: The original Cerise house is occupied (rented, probably) as a "use by right" primary dwelling. No action required by Hicks or us. e h we were sort of t employee housing. Hic income fr re ated work on the property. pproving a remodel on, s y occu as& t 1 rds which show that the ccupant derives most of his The new modular home, which replaced the old single wide trailer, is probably also "free market" rented and is currently illegally occupied. A Special Use Permit for an Accessory Dwelling is required. Also, on the new recently split lot where hicks built a new barn, shop and two dwelling units, a Special Use Permit is required for a Two Family Dwelling. I believe that Hicks has moved Prince Creek Construction to new office space in Glenwood. Therefore there is no requirement for a Conditional Use Permit for a Home Occupation. 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 If you agree with my conclusions I will issue a new citation to Hicks on the above violations. If he does not comply within thirty days after receipt of the letter of citation we will proceed with Code Enforcement Protocol and schedule a hearing with the BOCC to request that they approve sending the case to the County Attorney for legal prosecution. Let me know. Sony it took me so long to get to this. Steve January 24, 2002 Mr. David Hicks 1051 CR 111 Carbondale, CO 81623 RE: Permit Applications Dear Mr. Hicks: BUILDING & PLANNING DEPARTMENT I am writing this letter to inform you that the Planning Department has not received a response to the letter I sent you dated November 5, 2001 regarding your Conditional and Special Use applications. There were several items listed in the letter required for submission to meet the technical compliance requirements for both the Conditional and Special Use applications. You have not made an effort to submit these items. Furthermore, it has come to my attention that the Planning Department has been working with you for over a year to meet Garfield County Regulations in terms of uses on your property. As the uses on your property are STILL in direct violation of County Regulations, this application will be forwarded to Garfield County Code Enforcement along with the County Attorney's office. Please feel free to call me if you have any questions. Sincerely, Kum Schlagel Senior Planner Cc: Mark Bean, Planning Director Steve Hackett, Code Enforcement Don DeFord, County Attorney 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 November 17, 2000 Mr. David Hicks 1051 County Road 111 Carbondale, Co 81623 Dear Mr. Hicks, Building & Planning Department Thanks for your fax of 11/9/00 and the review of the current situation by Mr. Hartert. We do not agree with the interpretations presented in his review but, that is not an important matter at this time.. The fact is that if you are granted a special use permit for a two family dwelling for the barn, you will have accomplished the objective of "free market units". There are no other restrictions about the occupancy of a legally permitted two family dwelling. A conditional use permit for a home occupation will continue to be required if you maintain the Prince Creek Construction office in that building. The assembly of building components in the shop of the barn is not a legal use and must be discontinued. The log bunkhouse restoration for employee housing is allowed, provided that plans and a permit application are submitted for approval, the building is rebuilt to current Uniform Building Code standards and that an employee housing affidavit is filed with this office. We would require that a registered professional engineer certify to us that the already existing components of the log bunk house meet current UBC requirements. Yours truly, eve'a•'Tett Compliance Official ET) Ne Kim/44z 1l ,3�J Wl/K le,k5 Cern+i finie3 Please advise us concerning how you wish to proceed. NES2p o Fig D�e`lfrpti e op 60-7 Nora ©t??es k , ilMk ham— Ms b r ten` pr nAi*5 9CN))*enot9_, - 109 8th Street, Suite 303945-8212/285-7972 Glenwood Springs, Color do do 601 IL/ VD/ LUUU SO. 01 CP- 000-4.04t/ PCC rnIACCCA rsVC G1/G4 Prince Creek Construction, Inc. 1051 County Road 111 Carbondale, CO 81623 970-963-8182 970-963-2140 Fax Date: 11/9/00 To: Garfield County Building and Planning Mark Bean Phone: 970-945-8212 Fax: 970-384-5004 cc: From: David Hicks Phone: 970-963-8182 Mobile: 970-379-1002 Fax: 970-963-2140 Pages: _4_ (including cover) Subject: Attached is my attorney's review of the current situation on my ranch. I would be willing to submit for a special review of the bam/multi- family building to switch it to free market units instead of the use by right agricultural employee housing with the understanding that by applying for the special review I would not have waivedmy right to the claims in Mr. Hartert's letter. Let me know how to proceed. Thanks, David Hicks I OV- 9-00 TRU 10:56 AM LAW ..FECES 919 TENTH STREET GLENWI OD EPRINGE, COLORADO 61801 TELEPHONE purr 222A9b9 FACSIMILE f970) 926•860 David and Connie Hicks 1051 Prince Creek Road Carbtmdale, CO 81623 r1 -,UG u</ uY FAX NO. 9' )289665 P. 2 HARTERT &WILSON ATTORNEYS AT LAW November R, 2000 RE: Garfield County Zoning Requirement Prince Creek Ranch GERALD D. NARTERT 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 "hard 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 currespendexuce as well as the building permit and certificate of occupancy issuedfor the construction of the living quarters in the barn building and after rtwicw 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 AIR/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 "a&rioultura including farms, garden, greenhouse, nursery, orchard, ranch, etc," and further, "customary accessory used including buildrngsfor ahelteri cnclssure of gorsons, animals or property employed to sr 'Dove 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 ane discussions that one of the two units in the barn building is occupied by your father and the other uni is occupied by your immediate family and that all of these persons are employed to one degree oo 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 11/0]/LG✓JG 10;01 710-03- NOV- 9-00 THU 1D:57 AM LAW u6FICES rn11Yl.G I.RGGS ri't W.11174 FAX N0. 97u .,289665 P. 3 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 Mx. 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 aaes 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-family 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 en the property with the dwelling units in the batt building restricted to occupanev by persons employed in agricultural activities on. the ranch. This is a completely logical parallel to the circumstance in which a single -fancily 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 baht 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 nonconforming 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 goverrunental entity issuing the same cannot then assert that the use is illegal under its land use regulations. The 2 11(VJ/GVVV 'AV- 9-00 THU 10:58 AN LA JUICES GV. Jl -'IV 11'.1.1 �iG W[GGA FAX H0. 9i. J289665 rmuc VWW4 P. 4 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 Canfield County zoning resolution itself, the clear facts germane to the situation, the Vested Property Rights statute and establislted 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 torequire you to apply for a special use permit for either structure. T 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 1 believe the foregoing adequately addresses the issue. In summitry, itis my opinion that both of the existing dwelling units in the ban building and the dwellingunitintended to be installed in the bunkhouse are uses by right under the zoning reeolution. Please let me imow if T can provide you with an further information or clarification of the foregoing. Yours very truly, J Gerald D. Herten GDUI/pc Building & Planning Department October 24, 2000 Mr. David Hicks 1051 County Road 111 Carbondale, Co 81623 Dear Mr. Hicks, Enclosed are my responses to your recent telephone inquiry. The restoration of the log bunkhouse as a dwelling would be affected by section 7.03 (Restoration) and section 7.07 (Abandonment) of the attached county zoning regulations which are authorized by Colorado Revised Statutes 30-28-124 & 124.5. A home occupation requires that a conditional use permit be issued by the county, per section 3.02.02 of the regulations. A two family dwelling requires a special use permit, per section 3.02.03. Those regulations are attached. I have included both a conditional and special use permit application form for your convenience. Please feel free to contact Mark or me if you wish to discuss this further. Yours truly, Compliance Official 109 8th Street, Suite 303 945-8212/285-7972 Glenwood Springs, Colorado 81601 Garfield County Building & Planning Department & Department October 19,2000 Mr. David Hicks 1051 County Road 111 Carbondale, Co 81623 Dear Mr. Hicks, Thank you for the opportunity to view your property with you on October 18th. A number of Garfield County zoning regulation violations were discovered during my visit. Please refer to the attached two page memo that I addressed to Mark Bean and photo copies 1 through 9, which are enclosed. The violations cited in my memo are a violation of Colorado Revised Statutes 30-28-124 & 124.5. You are hereby given notice, pursuant to the above statutes, that you must completely correct the violations within thirty (30) days of the date this notice is received. If you have any questions regarding what actions are required to achieve compliance, you may contact this office, preferably in writing, at the address below. Sincerely, teve Compliance Official Ca tyig0 69eoer3 o&o7 3g5"b 6e7A7 1-c) 109 8th Street, Suite 303 945-8212/285-7972 Glenwood Springs, Colorado 81601 October 18,2000 To: Mark Bean, Planning Director From: Steve Hackett, Compliance Official Subject: Hicks Property, 1051 County Road 111, Carbondale Enclosed please find pictures and notes of a compliance investigation that I conducted today as the result of alleged zoning violations reported to us by the town of Carbondale. Probable violations for which Mr. Hicks will be cited are as follows, in the same numerical order as pictures 1 through 9, attached. 1. Ignore this, it is not on Mr. Hicks property. 2. Four dwellings are indicated at the entry to Mr. Hicks property. 3. The original Flavin Cerise house, a legal dwelling, currently rented to tenants. 4. Single wide mobile home currently occupied as employee housing. This unit is scheduled to be removed when the new modular home is finished and CO'd. It was installed by Flavin Cerise in 1972 and is occupied by ranch hands. Because it was installed in 1972, it is a pre-existing non- conforming use. 5. New modular home being installed, to replace the single wide mobile home shown in #4. Our permit #7744 has been issued for this. However, the employee housing affidavit signed by Mr. Hicks contains a disclaimer stating that the "employee housing" restriction on this dwelling will no longer apply after the modular is installed and the single wide is removed. We have not agreed to that claim It will continue to be employee housing and should not be issued a certificate of occupancy until the old single wide mobile has been removed from the property and a proper employee housing affidavit has been signed by Mr. Hicks. 6.Log bunkhouse, built in the 1940's, formerly for ranch hand occupancy, has not been used as a dwelling for many years. Mr. Hicks has a plan to remodel it, on a new foundation, for more employee housing. No plans have been submitted to us for that. Due to the long length of time that this building has been unoccupied, more than six months, it will not qualify as preexisting and due to the building having been missing it's roof for more than one year, it will not qualify for restoration of a pre-existing non -conforming use. 7. A motor home on the property is connected only to electricity. Mr. Hicks stated that he needs to keep the batteries charged during the winter months. It appears to not be being used as a dwelling. Storage of this vehicle on the property is legal, provided it is not used as a dwelling. 8. Barn, built on our building permit #6873, issued 8/25/98 for a "barn/shop/employee housing. An employee housing affidavit was signed by Mrs. Hicks on 8/25/98, as part of the permitting process. The building was CO'd on August 19, 1999 as a "barn, shop & employee housing". Current occupancy is as follows. "Shop" is a large area on the first floor occasionally used by Prince Creek Construction Company for assembly of building components to be brought to job sites. Several sets of stairs were present during my visit. Office area is a large bay filled with construction tools and equipment and a partitioned off office area containing desks, chairs, files and blue print equipment. The office seems to primarily serve Prince Creek Construction Company. A first floor dwelling area within the barn, containing 3 bedrooms and 2 baths is occupied by Mr. Hicks father. A second floor dwelling area within the barn, containing 4 bedrooms and 2 baths is occupied by Mr. & Mrs Hicks and their son. The office and shop components of this building are not in compliance with county zoning regulations in that they constitute a home occupation for which no conditional use permit has been issued. The occupancy of the two apartments in the building are in violation of county zoning regulations in that they were permitted only for employee housing. No special use permit has been issued for a two family dwelling. 9. A travel trailer, which belongs to David Hicks dad, currently in use as a dwelling by the person contracted to remodel the log bunkhouse for more employee housing. It is connected to water and electricity. This unit is in violation of county zoning regulations, travel trailers are not allowed to be used as dwellings. Steve Copies to: Mr. David Hicks Mr. Mark Hamilton fra, 54- e/tis rep 10/18/2000 0rpnd ?.. ''e he-te,za- , V)w v7 C� ,,e,MaVI-1 r lav pp'' 10/18/2000 fr'1 , 3 w iPa r ✓hr/e hcwt. - 10 OC -ei11oueoo 14_1121-t ftvocu (oto (s e . CUnotaly us eD ,9-s te444 Five",A t 10/18/2000 ecv MoSvla[ Be -,k &.r1-4ei Ya ht) lerM6r ?7#',A Perna -to s(44 w!ok vyt&4dt h ernit chew n 4:k 10„8/2000 re kog wrtklteui > if/toe-cop rep-c^-isa Saes vtvs ham . Ply►. * moat 1+ 74a a iferca7Lon onid 10/18/2000 meivrhernte r% t c4©2 hhM QA 12,4 Ines_ 10/18/2000 I�looked0 p +v %Iattria OW y b a WVI-e 6, Flo w aai Seetaisy 55-01crygz et) vn lqY% L"en7`etar: kletke/lop/s ietere °Conic:nag, ✓ n, b(ly`l�rvvtee eek. Cepns7 77) r4heiraivta Iq & eaiiiwiRrva?'ys 'cat) p_r-(v�nee. GQiZ K Cont-- s her. 9J, a , p0 e"sptvez_ cif /ii { olesl�,s� itsj Pe RAmip�1- 1440'IM-teGN e e 5'j *vibe—.a tr- P/oolC, 14 patehtlatzt, s a.50k oeeopbob R mK Flaks 49E2 olit' tleoR Arizebsinefr, 3, FRI 3r i, OE.e a prnb Boy oR y, Mks lire kv 19&/1/417 7 467 P ero 93-e? 'rig Fm 4o -700 ,feral #/e . 7te5 %6+ 10/182000 1(' AeC kala_ _ - C meavq0 4- Pao— - Pacs_ t? -O-' piLet oarrati ( e, ?? 4t,34.04.r who GPS t 61 walk c9-1 R- EGS-a bameptoy MK, 11-10---k‘ V`q 10„8/2000 BUILDING & PLANNING DEPARTMENT Code Compliance Office shackett(a�garfield-county.com April 3, 2002 To: Mark Bean, Don DeFord, Ed Green, BOCC From: Steve Hackett Subject: Hicks Property Compliance Site Visit On this date Senior Planner Kim Schlagel and I visited the Hicks property, by invitation from Mr. Hicks, to verify compliance in the matter of Mr. Hicks current application for a Special Use Permit for a two family dwelling and a Conditional Use Permit for a home occupation, on assessors parcel 2463 104 00 076, at 1051 County Road 111. The two dwelling units in the barn on this property were built on permit 6873, which was issued for a barn, shop and two employee housing units. The two dwelling units have never been used for employee housing as they have been occupied since final inspection by Mr. & Mrs. Hicks in one and Mr. Hicks' Father in the other. The Hicks do not make a major portion of their income from agricultural work on the property and are owners rather than employees. The shop portion of the building is being used for office, storage space and assembly work for Prince Creek Construction Company. Mr. Hicks stated to us that his intended use of the shop area will continue to be for storage of construction materials for his construction company and as a place where his construction company employees can work to build items, such as stairways and to store materials, such as carpeting, for Prince Creek Construction Company. My recommendations concerning this parcel are that a Conditional Use Permit for a home occupation should not be approved based on its stated intended use as a storage and assembly work area for Prince Creek Construction Company. A Special Use Permit for a two family dwelling should not be approved until the illegal home occupation use has been abated. During the visit to Mr. Hicks property I attempted to discuss some existing building and zoning code violations on the adjacent contiguous parcel, assessors 2463 113 00 075, at the same address, with Mr. Hicks. My attempt to discuss these items with Mr. Hick's was based on his response, a request that I call him, to my written notification to him, on 3-5-02, about two building permits that had expired. I showed a copy of Uniform Building Code, section 106.4.4, concerning expiration of permits, to Mr. Hicks. Mr. Hicks response was first, one of denial, attempting to assert that some demolition had been done which he believed kept the permit active and then of extreme anger, shaking his finger in my face, asserting that I was operating with a personal grudge against him, that he had satisfied the code requirements but that he couldn't make me happy. I tried to explain to Mr. Hicks that I was doing my job, enforcing county building and zoning regulations and 109 8th Street, Suite 303, Glenwood Springs, Colorado 81601 (970) 945-8212 (970) 285-7972 Fax: (970) 384-3470 that it had nothing to do with me or him in a personal way, at which point Mr. Hicks angrily kicked us off of his property. As reported to you in my memo of March 12, 2002, "David Hicks Code Violations", tab 2 and 3, the following code violations continue to exist on that parcel. 1. Permit 7744, Modular Home to replace old single wide mobile home for employee housing. The permit has expired. No final inspection has been done. No Certificate of Occupancy has been issued. The modular home is illegally occupied as an unpermitted accessory dwelling. The old single wide mobile home has not been removed and appears to also be occupied. 2. Permit 8058 to remodel and relocate log bunkhouse for employee housing. No construction work has been done, no inspections have been called. Mr. Hicks states that he will begin construction this spring. The permit has expired. My recommendations concerning this parcel are that the illegal occupancy of the modular home be abated - until a final inspection and Certificate of Occupancy are completed, proof of occupancy as "employee housing" is tendered or a Special Use Permit for an Accessory Dwelling is issued. Further, that the single wide mobile home, which the modular was to replace, be vacated and removed from the property. Additionally, I would like to suggest that further documentation concerning requirements for "employee housing" on this property be submitted. I would strongly recommend that unabated code violations on this parcel, that have existed for about a year, be considered as part of the process of approval or denial of any permits on parcel 2463 104 00 076. Finally, concerning a history of dealings with Mr. & Mrs. Hicks by this department. Several years ago, Mr. Hicks was developing a small residential subdivision on Silt Mesa adjacent to County Road 250. During that process I requested, by phone message, that Mr. Hicks name the roads in his subdivision so that I could address them. I received a vulgar phone message in response that advised me that Mr. Hicks would not name the roads because he'd already done enough for Garfield County. More recently, a phone message left for me by Mrs. Hicks concerning compliance with expired permit procedures, contained vulgar and abusive language. That message was heard by the Garfield County Attorney and the Garfield County Manager. Currently, in an attempt to assist Mr. Hicks in explanation of permit compliance procedures, we were evicted from the land in an angry and abusive way. I am concerned about this offices ability to achieve compliance in a business like manner. I would prefer to not receive phone calls from the Hicks, to keep our transactions in writing and suggest that future necessary trips to the Hicks property be made with an Administrative Entry Warrant and a Garfield Deputy on Civil Standby. Respectfully submitted, Steve Hackett Kim Schlagel itie_., 56.14a_ April 26, 2002 1.7 TowN OF CARBONDAT F 511 Colorado Avenue Carbondale, CO 81628 Ms. Kim Schlegel, Senior Planner Garfield County Building and Planning Department 109 8a' Street, Suite 303 Glenwood Springs, Co. 81601 fU.04J r.c via fax: 384-3470 Dear Ms. Schlegel, Thank you for referring the Hicks Special Use and Conditional Use permit applications to the Town of Carbondale for our review. What is now known as the Hicks property and was formerly the Victor and Flaven Cerise Ranch is within the Town of Carbondale's three-mile area plan. The subject site is not within our proposed "potential annexation area" a/kfa "urban growth boundary. Betow are the Town's comments from a planning perspective. Special Use permit for conversion of multifamily ranch employee housing to housing for "non -ranch" employees. 1. Application materials. The improvement Location certificate provided does not meet the criteria specified in Section 9.03.01(2). The "vicinity map" does not show the location and use of buildings and structures on adjacent lots and the names of owners of record of such lots. The improvement location certificate for the subject property itself is of such a scale as to be almost unusable. Moreover, the map does not disclose the fact that the subject site is a 35 -acre parcel subdivided off from the original Cerise Ranch property. Second, the applicant's letter according to Section 9.03.01(3) is supposed to explain in detail the nature and character of the special use requested. The Town of Carbondale does not think that the letter accomplishes this purpose. The letter states: "the County now claims that the multi -fancily 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...but I am willing to apply for a Special Use perrnit to convert these multi -family units to house persons other than ranch employees if that will help (970) 963.2783 Fax (970) 963-9140 eliminate problems that the County feels have been created by their issuing a permit and C.Q. for the structure" (emphasis added). This portion of the applicant's letter blames the County for the present situation. In fact, the applicant signed an affidavit dated August 25, 1998 stating that the residential structure to be built is an employee dwelling unit(s) and will not be used for residential occupancy for any person and/or family that is not employed on the property. it is our understanding that David and Connie Hicks occupy one property and David Hicks' father inhabits the other dwelling unit in the 'tam". Neither of these families are ranch employees and in fact earn their living through Prince Creek Construction — a construction company owned and operated by David Hicks. We assume that the main ranch house is rented out. Therefore, the applicants themselves created this situation and were not truthful in their original request for a building permit. They created the situation, not the County. 2. Concerns regarding special use requirements. a. Utilities adequate to provide water...based on accepted engineering standards — Section 5.03(1). Applicants have simply submitted an order on cross motion for summary judgment from Judge Qssola. The Town is currently in litigation with Mr. Hicks regarding the scope of the Town's water service obligations. The original agreement between the Town of Carbondale and the Cerises only requires that the Town provide one %" service line. The Town intends to have their attorney advise the County on this issue. From a planning standpoint, the applicant has not provided any background proving that the water source meets accepted engineering standards. The Town has a number of concerns in this area. First, water is intended to be provided from a 8/" service line extending from a Town main. The Town of Carbondale standards require a W service line for one single family detached dwelling unit A 15 or greater line is required for two units or more. Without the permission of the Town, Mr. Hicks connected these dwelling units to the existing sf" service line cited in the summary judgment that already provides water for a modular unit, the main ranch house, stock watering, and support of a home -office of a construction company (if approved). The Town would like to examine the documents provided by Mr. Hides regarding accepted engineering standards which would show that such a %" line cart adequately serve all uses. Second, it is our understanding that the structure under review for the special use permit is on a separately conveyable 35 -acre parcel ..v. t -.o r . 4 which has been split off from the historic Pleven Cerise Ranch. This water source is therefore not secure from future shut -offs from the present qr future owner of the historic Pleven Cerise Ranch or the Town of Carbondale; Third, the applicant has in the past and may in the future subdivide 35 -acre parcels from the original holdings without review. Are all these future parcels to be guaranteed a water source from the Town of Carbondale from the same %" pipe? Will the next application be for a full subdivision with 2 -acre parcels with once again the guaranteed water source being the single 9/" service line from the Town? Where does this logic stop? b. Design of the proposed use organized to minimize impact on and from adjacent uses — Section 5.03(3). The Town takes the stance that these now free-market units may have had a very different design and even location on the property if the Hicks' had been more forthcoming with their original permit application. Placing the units in the same structure has added unnecessary bulk to the supposed ranch structure (barn) in that area of Prince Creek. While we have no problem with .substantial ranch structures, the resulting barn and two apartments seem out of character for the Prince Creek area, especially given their location to the adjacent property to the North. Mr. Hicks has plenty of room on his ranch for free-market units that would not have a visual or other impact on anybody else but the Hicks family. The Town of Carbondale recommendation on Special Use application, The Town of Carbondale respectfully requests that the County deny the issuance of this Special Use permit. The applicant has not proven through generally accepted engineering standards that the existing % water service line from the Town of Carbondale can adequately serve these uses as well as the other residential uses and stock watering provided on the site. In addition, this parcel has been subdivided from the historic Flaven Cerise Ranch and the Town is not aware of arty documents which guarantee a water source if such parcels are subdivided from the original ranch property itself. That burden is Mr. Hicks' to prove and the proof has not been provided. The Town is especially disturbed at the misguidance given in the affidavit signed in August of 1998. It is clear to the Town that the property was never used for the type of housing originally intended and that is a blatant disregard of County regulations. Sweeping such matters under the carpet would not set a good example for the other law-abiding citizens of Garfield County. Comments on Conditional Use request. 1. Application materials - Section 9.03.01(2). Same vicinity map and improvement location certificate with previous application, same deficiencies and same concerns. Clarification of Conditional Use permit request. tt is not clear to the Town whether the applicant is asking for permission for a small office for an electronics company as dated in the March 15, 2002 letter or if the request is for continued use for a construction operation. If it is the electronics company, no indication of what the proposed activity would be has been supplied. It is Incumbent for the County to know what this operation would entail. It would initially appear that the applicant is not ready to establish or start up an electronics company. If this is the case, then a formal application and review should not take place until the applicant has a better idea of what they want to do. If it is the intent of the applicant to continue having a construction presence an the property, then this would be a different matter. A small office used by a typical homeowner is not problematic. However, storage of construction equipment materials and fabrication need to be done as other prudent business people would — in a properlyzoned contractor's yard or facility in an industrial or commercialfndustdal area. This use is on-going. 3. Compliance with County definition of Home Occupation. Section 2.02.29 of the County Zoning Resolution defines Horne Occupation as any use for gain or support carried onas an accessory use within a dwelling or in a building accessory thereto wherein such use would not create the appearance or impact of a commercial activity. The Town finds it hard to believe that storage of construction equipment, and oftentimes materials, would not create the appearance or impact of a commercial activity. Driving , by and seeing such items as the miscellaneous construction trailers to the west of the °barn" is proof itself that there is the appearance or impact of a commercial activity: The same logic holds for the fabrication of stairs or anything else in the barn structure itself. We are not sure how fabrication of stairs or any other materials can be considered a home occupation as opposed to a fabrication, manufacturing or industrial use. 4.. Utilities adequate to. provide water as contained in Section 5.03(1) of County zoning resolution. The Town would make the same argument as previously made with the special use application. nv • wa r • o 5. Street improvements adequate to accommodate traffic volume generated by the proposed use - Section 5.03(2). Continued storage and movement of construction equipment for fabricated materials sometimes requires road improvements. The road down to the "home occupation' adjacent to the residential units in Prince Creek Estates does not appear to have an improved road surface. 6. Design of use to minimize impact on adjacent uses — Section 5.03(3). The existing construction trailer(s) to the west of the barn are visible from even Prince Creek Road and Highway 133. Whether this is a true problem or not for adjacent landowners, their very visibility fails to meet the County's definition of a home occupation. The same would be true for the presence of construction equipment, fabricated stairs, etc. Town of Carbondale recommendation on Home Occupation request. The Town of Carbondale respectfully requests that you deny the application for a Home Occupation. There is not an adequate physical water source for the use because a %' fine is insufficient to serve a home occupation let alone seven Other uses (ranch house, two modulars, bunk house, stock watering, and yard hydrants which are on a separate property in addition to the two previously mentioned apartments). There is no description of the electronics company operations and therefore no way of even reviewing let alone approving Such an operation on the subject site. Operation of a construction company, even Just for storage and fabrication, does not meet County criteria for the definition of a Home Occupation. Once again, thanks for giving the Town of Carbondale an opportunity to review and comment on these applications. Please contact me if you have any questions. Sincerely, Mark Chain Planning Director 4N- CALOIA, HOUPT & HAMILTON, P.C. ATTORNEYS AT LAW RECEIVED APR 3 0 2002 1204 GRAND AVENUE GLENWOOD SPRINGS, COLORADO 81601 (970) 945-6067 - VOICE (970) 945-6292 - FACSIMILE Please direct correspondence to this address VIA HAND DELIVERY Don DeFord, Garfield County Attorney 109 Eighth Street, Suite 300 Glenwood Springs, CO 81601 SHERRY A. CALOIA JEFFERSON V. HOUPT MARK E. HAMILTON MARY ELIZABETH GEIGER April 30, 2002 PARK AVENUE PROFESSIONAL BLDG. 121 NORTH PARK AVE., SUITE B MONTROSE, COLORADO 81402 (970) 252-0180 — VOICE Sender's email: mhnm@sopris.net Re: Hicks' applications for conditional and special use pertnits Dear Don: This office represents the Town of Carbondale (the "Town") with regard to water legal matters. The Garfield County planning staff recently referred the Town two land use applications filed by David & Connie Hicks (the "Hicks") for their property on Prince Creek Road south of Carbondale. On April 26, 2002, Mark Chain (Town Planner) provided Kim Schlagel with a written report as to the Town's position regarding planning issues associated with the Hicks' pending applications, and recommended that the County deny both applications. This letter is intended to be read in conjunction with Mark Chain's letter and to urge that, in addition to planning concerns, there are significant legal issues as to the proposed water supply for the property which is at issue. Both of the Hicks' applications relate to a large "barn" facility which sits on a 35 -acre parcel that was recently carved out from the remainder of the Flaven Cerise ranch (see Quit Claim deed form the Hicks to PCI, LLLP dated August 16, 2000, Book 1202 Page 302). The special use permit requested by the Hicks would allow two existing residences within the barn structure to be rented or sold as "free market" units, as opposed to being restricted to ranch employee housing as originally constructed (I understand that Mr. and Ms. Hicks currently live in one unit, and that Mr. Hicks' father lives in the other). Additionally, the conditional use permit requested by the Hicks would allow use of other areas in the barn for an electronics or computer business, or possibly a construction company (I understand that the property is currently used for the construction of stairs and for storage of construction materials and equipment). As you may know, the Hicks' property is the beneficiary of a water service agreement entered into in 1953 by the Town and Victor Cerise, Flaven Cerise's father. A copy of the "1953 Agreement" is attached for your review. The Agreement substantially provides that, in exchange for a water pipeline easement, Victor Cerise would have the "right to install a 14 inch water line onto said Town water line, at his own cost and expense, and the town further covenants and agrees to furnish CARBONDALE-H icks-DeFord-hr-1 CALOIA, HOUPT & HAMILTON, P.C. Don DeFord, Esq. April 30, 2002 Page 2 said party of the first part, his heirs, executors, administrators and assigns free domestic water for son long as the easement or right of way above described is used by the Town for water pipe lines... . [T]he Town shall have the right to remove the same [i.e. its water main] at its discretion." When the Hicks' bought the Cerise property in the early 1990s, they approached the Town _ about "trading" their right to one 3/ -inch line for ten domestic taps. The Town did not agree to this proposal since it would have resulted in a significant expansion of water usage on the Hicks' out-of- town property to the detriment of in -town users (the water supply delivered through the Town water main on the Hicks' property is from Nettle Creek, the Town's best water source—the Town currently has a moratorium on additional out-of-town taps). However, over about the past 3-4 years, the Hicks have gone ahead and connected a number of new units to the existing single water service line, including not only the "barn" structure that is at issue in the Hicks' pending land use applications, but also two new modular homes. These units are in addition to the ranch house and ranch hands' quarters that the Cerises had built on the property. The Town has never approved any of these new uses of Town water. The Town installed a water meter on the Hicks' water line in October 1998. Meter readings from November 1, 1998 through June 10, 1999 indicated that approximately 2,098,000 gallons of treated water from the Town's Nettle Creek water plant had been delivered to the Hicks free of charge—this equated to about 279,733 gallons per month, or 9,324 gallons per day. Thus, on February 25, 2000, a the Town filed a Complaint in Case No.00CV035-A which alleged claims against the Hicks for declaratory judgment, injunctive relief, breach of contract, and unjust enrichment. This case remains pending. A three-day trial is scheduled to occur this fall (November 18, 19 and 20, 2002). During the fall and winter of 2000, the parties filed cross-motions for summary judgment as to their differing interpretations of the 1953 Agreement. The Town took the position that the Agreement is impliedly limited to the water uses on the property prior to 1998, and that the Hicks illegally expanded the historical level of water use. The Town also asked the Court to rule that the Hicks may not waste Town water. The Hicks countered with the position that the 1953 Agreement is clear on its face and that the only volumetric limitation is that the Hicks are only entitled to one /- inch water line. The Hicks also argued that Colorado case law holding that no one is entitled to waste water did not apply to them because the single water line described in the 1953 Agreement is not a water right. On February 12, 2001, Judge Ossola issued an order on the summary judgment cross- motions, a copy of which has been supplied to the County by the Hicks (for convenient reference, another copy of Judge Ossola's order is attached). As you will see, the Court ruled against the Town with regard to its argument based on implied limitations --as opposed to limiting the Hicks' to the number of houses on the property when it was owned by the Cerises, the Court found that the "agreement limits the amount of water to be used to that amount that can be delivered through a 3/4 CAR13ONDALE-Hicks-DeFord-lir-1 CALOIA, HOUPT & HAMILTON, P.C. Don DeFord, Esq. April 30, 2002 Page 3 inch pipe." However, the Court also ruled favorably to the Town in that the Hicks can be "prevented from committing waste in the use of water through the y inch pipe for domestic purposes." During subsequent discovery in this case, the Town learned that the Hicks are not in fact using 3 -inch water distribution lines, but rather a variety of larger size pipes, including a significant amount of 1' -inch and 2 -inch PVC. For your reference, I have attached a letter from Resource Engineering dated December 6, 2001. It includes a detailed schematic diagram of the underground water lines currently on the Hicks' property based upon information obtained during a deposition of Mr. Hicks last fall. According to Resource Engineering, the Hicks' use of larger water delivery pipes dramatically reduces friction losses and thereby allows the delivery of more water to more units. If all pipes were limited to no more than 3/4 -inch diameter, as required by the 1953 Agreement, the Hicks might not be able to serve all of the units now on the Cerise ranch. After hearing the parties positions on the s/ -inch water line issue, Judge Ossola determined that a trial may go forward in this case on two issues: (1) whether the Hicks are wasting water; and (2) whether the Hicks are using water lines greater than s inch in diameter in breach of the old agreement. A copy of the most recent Case Management Order in the case is attached for your review. Given the fact that litigation is ongoing and that questions remain regarding the size of water lines on the property, the Town would urge the County to deny or postpone any decision on the Hicks' application. First, the summary judgment order was not final. Although the Town requested the Court to certify the summary judgment as final pursuant to C.R.C.P. 54(b), the Court has declined to certify the ruling for appeal until after a trial on all remaining factual issues. Until expiration of all appellate rights for both parties, the February 2001 summary judgment should not be considered a permanent determination that the Hicks have an adequate potable water supply for new units. Second, even if the summary judgment order becomes permanent, the order is limited in ways that question the physical adequacy of water supplies for the Hicks property. The 1953 Agreement expressly limits the Hicks to one "Y4 -inch water line." Resource Engineering's analysis suggests that a single 3/4 -inch water line is not sufficient to provide water over the distances and elevation changes, and to the overall number of units, proposed by the Hicks. Lastly, the County also should consider that ownership of the 35 -acre "barn" parcel has been separated from the remainder of the Hicks' property on Prince Creek Road. Thus, if the Hicks' applications are approved, the barn structure could be sold separately. At present, the Town has no ability to ensure, or otherwise regulate, the continued delivery of water from the Town's main to the barn structure across the rest of the former Cerise ranch. In summary, although the Hicks' pending applications state that the proposed water supply is water service from the Town of Carbondale, the Hicks are limited to a single 3/4 -inch water line, and the Court has not determined whether the right to free water service extends to all portions of the CARBONDALE-H icks-DeFord-Itr-1 CALOIA, HOUPT & HAMILTON, P.C. Don DeFord, Esq. April 30, 2002 Page 4 former Cerise ranch regardless of the size of lines used. The ongoing litigation between the Town and the Hicks could result in limitations being placed upon the Hicks' usage of Town water that make it difficult, if not impossible, to guarantee continuing water service to the number of units that the Hicks desire to serve (the Hicks have also indicated in discovery that, in addition to the five existing units, they plan to build another single family residence on the northern portion of the property adjacent to Prince Creek Estates). Thus, I would urge that the County either deny the Hicks' applications or postpone any final decision until after the parties' rights under the 1953 Agreement are finally determined. Thank you in advance for your consideration of the Town's concerns. Should you or the Commissioners have any remaining questions about this situation, please contact me or Mark Chain at your convenience. Sincerely, CALOIA, 'SUPT & HAMILTON, P.C. 41 M k E. Hamilton MEH/nIl cc: Mark Chain, Town Planner, w/out enc. John Hier, Town Manager, w/out enc. Kim Schlagel & Mark Bean, Garfield County Planning, w/enc. CARBONDALE-Hicks-DeFord-Itr-1 It..' ,,•ted . b. 11, 1'?), ;Ince; thin .ii: ^.,`r, ; . 1:1501:! ,It :P r,•a,- Cn:�i, a; 1:•+nra:;, ib:corinr PIPE LINE 1RIGIIT OF WAY °ook 275 1 -,1;" 181. THIS AGREEMENT, made and entered Into this /1/tkday of September A. D. 1953, by and between Victor Cerise of the County of Garfield, State of Colorado, of the first part and the Town of Carbondale, Garfield County, Colorado, a municipal corporation, hereinafter called "Town" of the second a part, WITNESSETH: WHEREAS the party of.ihe first partia the owner of Lot 9, Sec. 10, Tp. 0 S. R..88 W. of the 8th 1'.1/6..1n the County of Garfield, State of Colorado; and, whereas, the town proposes to construct a water pipe line for the use of the town which must necessarily erose said land owned by party of the first part and heretofor described; NOW TIIEILEI O11E., the paritra t,errto hereby agree as follows, to -wit 1. The party of the first part hereby grants, bargains and sells to the Town an easement or right of way 40.0 feet in width, being 20.0 feet on either side of the following described center line: Beginning at a point on the North Line of Lot 9, Section 10, Tp. 8 9., R. 88 W., of. the SixthtPrinclpal Meridian and being on the Easterly side of the dight of, Way of the Crystal River -Railroad Company' Ithence'Southwesterly along the Easterly side of the Chystal Rivet Railroad Company Right of Way for a dlsiance bf_2800. 0 feel: • • for the purpose of constructing; laying,'maintaining and using a water pipe line across and over the above described.premteee and the party of the ; first part further hereby grants the town the liberty of entering upon said premises from time to time, to open up satd line of pipe, or any part thereof, for the purpose of repairing or renewing the same as the occasion may require, doing no unnecessary damage to said premises and also the liberty; to remove said pipe whenever the,Town,shall elect to abandon the use thersofj TO HAVE AND TO HOLD the aboire described right of way or easement and r, IIBook 275 Page 182 i, the rights and liberties appurtenant thereto and to the said Town, its successors and'assigns, forever, and the said party of the first part covenants that at the time of the signing and seating of these presents, he is well seized f -the premises above conveyed in absolute and indefeasible estate In fee sim- le and has good right, full power and authority to grant the easement; 2. For and in consideration of the grant of the easement or right of way e above described the town hereby gives the party of the first part his heirs, Y executors, administrators and assigns the right to install a 314 inch water line No said Town water line, at his own cost and expense,, and the town further covenants and agrees to furnish to the said party of the first part, his heirs • executors, administrators and assigns free domestic water for so long as the easement or right of way above described is used by the Town for water pipe lines. The Town shall not be responsible to said party of the first part for any amage sustained by him in the disturbing of the surface in laying, repairing, renewing or removing said water pipe line, However, this shall not relieve he Town of their responsibility to the party of the first part for any damages ustained by the Town's negligent, careless or improper use of said right -of= ay. The Town shall not be reepomlble for any damage done by reason of ald pipe line leaking,, breaking or bureting, not caused ¢ythelr negligent, careless oritnproper ubb of saki pipit ilrie; .howevekellikt4, event they bhall romptly repair said 00 114 sad do all thlctgs reasot1ab�,hbcesbary to nilni- e.4he•demage by rn$gn of Avid leaking, breaking or bursting, me 'Town; a1>Vayk tutc said. i ight•oiL'wiy iii such* manner as to, cause a minimum of.. age to the property, and shall after excavating properly fill said excavat- ing, thus minimising the damage to the property of the party of the first part. . Thw parties hereto ag ee that the said pipe line and ite appurtenencee. alwia}r.remaintbe:•ptoperty of ihe,Town and,the ,Town Shall have the ri`bt io•rehovl the edme at its`deecxetida, 77-..trigiff"TIVOVIASPI://f.!t:Wiki,i1.:4,M5141149.NEVI:41011,4m1f.'il"'il''''.''' . . ' ;,. ...., ; ' . liti • :im.: /7'.i ' p --A : Ili It IN WITNESS WHEREOrt, the party of the first part has hereunto caused his hand and seal to be affixed hereto; and the Town of Carbondale by a motion duly passed by a majority of the Boar& of Trustees of the Town, has vaustill the signature of mayor to be affixed hereto, properly attested by the • lurk mat tit I. et/ rpOp444., seal i4I xf.,1 thn'reto bil the day and year first above written. ATTEST: Town Clerk ... (Atli; ')t • 1.44RADo 1 I sS. COUNTY OF GARF1ELD Victor Cerise TOWNOF CAR)ONDALE, C LORADO 9endtv Mayor The foregoing instrument was acknowledged before me this 4? 3 dakt of September, A.D. 1953, by Victor Cerise, Frank Rich, as the . Mayor and by Ella Bolton, as the Town Clerk of the Town of At. kornilttpeojt •. • municipal corporation. Witness my official hand and seal. My Commission Ext:Arti My Commission Expires Feb:miry 11, 105 41 Tr' 4' j COURT USE ONLY ❑ Small Claims ❑ County Court [KI District Court ❑ Probate Court ❑ .Juvenile Court ❑ Water Court GARFIELD County, State. of Colorado Court Address: 109 8th 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 ON CROSS MOTIONS FOR SUMMARY JUDGMENT Date: February 12, 2001 Proceeding: Cross Motions for Summary Judgment Presiding Judge: Thomas W. Ossola TIIE COURT being fully advised in the premises, finds, concludes and orders the following. FACTS Plaintiff, Town of Carbondale, (Town) sued Mr. and Mrs. tricks in connection of use of water pursuant to an agreement entered into between the Town and Victor Cerise, predecessor to the tricks' ownership of real properly 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 'h" water line onto the Town line and the Town agreed to furnish "...free water for domestic wafer 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'I'own Trustee's meeting in November, 1966. After acquiring the property in 1993, the I licks family somewhat altered or intends to alter the uses to include more or larger residences and his construction company office. Sonie 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. I licks 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 arc "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 proving party is entitled to judgment as a matter of law. See C.R.C.P. 56; c4 Greenwood Trust Co. v. Conley, 938 P.2d 1141 (Colo. 1997). The moving party has the initial burden to show that there is no genuine issue of material fact. See Greenwood Trust Co. v. Carley, 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. Del?oer v. Jones, 996 P.2d 754, 755 (Colo. App. 2000). The primary claire 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'/," 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 ivas aware of the alleged misuse of the water practically from its inception and certainly before the three-year statute of limitations. C.It.S. § 13-80-101(1). The action is barred because the statute of limitations has run. The continuing violation argument docs not hold differently. The "continuing violation" doctrine is no different than the standard established by § 13-80-1080) which applies the principle that a statutory limitations period begins to nin only when a reasonable person would be on notice that he or she has been injured by the defendant's wrongful conduct. Harmon v. Fred S. Janes & 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 typr r 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 wiry 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 Ilicks 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 ry; (y) watering of livestock during the fall and winter months. Specifically, the Town disputes the use of water to support the construction operations of the flicks. It is clear that the teen "domestic use" as it is used in the water Mw context in Colorado includes stock watering. See Montrose Canal Co. v. LoulsenliizerDitch 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 carded 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 Me 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 Mw. 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 hone office of a construction company. IT IS FURTHER ORDERED that plaintiff's cross motion for summary judgment be granted to the extent that defendants be prevented from conunitting waste in the use of water through the ' inch pipe for domestic purposes. _.:;,..,.:.-ttf, 1. OF MAILING 1 certify wurilrnailed to all Foregoing _ Counsel of rBGf��/ { 1 y of 1, is BY THE CQURT: i 4" Judge. DISTRICT COURT, GARFIELD COUNTY, COLORADO Court Address: 109 81h Street Glenwood Springs, CO 81601 1 ILED IN DISTRICT COURT GARFI Ell) COUNTY, COLO. _ TIIE TOWN OF CARBONDALE, a Colorado Municipal Corporation, Plaintiff, v. DAVID W. HICKS and CONNIE F. HICKS Defendants. "5' CL Ell . COURT USE ONLY A Case Number: 00CV035-A Division A CASE MANAGEMENT ORDER On July 19, 2001, the parties appeared before the Court for a Case Managemen Conference for the purpose of defining issues that remain in this case. The Town of Carbondale was represented by Mark E. Hamilton, Esq. and Sherry A. Caloia, Esq., of Caloia & I-Ioupt, P.C. Defendants, David and Connie Hicks, were represented by Edward Mulhall, Jr., Esq., of Balcomb & Green, P.C. During the Case Management Conference, the parties represented to the Court that they had been unable to agree as to what issues, if any, remain for disposition in this action. After hearing argument from counsel, the Court DETERMINED that, to the extent that the Town's remaining claims are consistent with the Court's February 12, 2001 Order re: Cross -Motions for Summary Judgment, the Town of Carbondale may pursue the following claims: 1. Alleged waste of water by Defendants; 2. Alleged improper use by Defendants of water lines greater than Y4 -inch in diameter to convey water delivered to Defendants by the Town. THE COURT ALSO: 3. DENIED the Town of Carbondale's request for certification under C.R.C.P. 54(b); 4 DISSOLVED the Court's Protective Order dated November 2000 and ORDERED that the Town of Carbondale may proceed with discovery, including a deposition of Flaven Cerise for the purpose of preserving his testimony on record and for the purpose of discovering additional information as to the Town's remaining claims; 5. DETERMINED that the Town will not be required to amend its Complaint at Ibis stage because a Trial Management Order will ultimately serve to focus the issues that remain for trial; TOWN OF CARBONDALE-Hicks-CMO-2000CV35-A-revised 6. ORDERED that this matter is set for trial on January 22, 24 and 25, 2002; and, 7. DIRECTED the parties submit a john Case Management Order to the Court on or before July 30, 2001 and a proposed Trial Management Order to the Court no later than thirty (30) days before trial. CASE MANAGEMENT ORDER Per the Court's direction at the Case Management Conference, counsel for the parties have agreed to the following terms which shall govern future conduct in this case: I. TRIAL SET'T'ING A three-day trial has been scheduled in this matter from 9:00 a.m. until 5:00 p.m. on January 22, 24 and 25, 2002. The parties acknowledge their duty to promptly notify the Court in writing if the anticipated length of the trial changes. II. DISCLOSURE A. Pursuant to C.R.C.P. 26(a)(1). Pit() 1. Rule 26(a)(1) disclosures have been exchanged by the Town and Defendants and filed with the Court. B. Pursuant to C.R.C.P. 26(a)(2) (Experts) 1. All parties shall disclose the identity of persons who may present evidence at trial pursuant to Rules 702, 703 or 705 of the Colorado Rules of Evidence, along with the information required by C.R.C.P. 26(a)(2) no later than TUESDAY, SEPTEMBER 25, 2001. 2. Rebuttal expert disclosures, if any, shall be made within thirty (30) days after the disclosure on the same subject by the other party. C. Continuing Duty to Disclose. The parties acknowledge a continuing duty to timely supplement or correct the information provided pursuant to C.R.C.P. Rules 26(a)(1) and 26(a)(2), pursuant to C.R.C.P. 26(e). Town of Carbondale v. Hicks Garfield County District Court Case No. 2000CV35-A Case Management Order -2- III. IDENTIFICATION OF PERSONS, DOCUMENTS AND TANGIBLE THINGS Each party shall identify all persons who may be called as witnesses, as well as documents and tangible things which might be introduced at trial, not otherwise disclosed pursuant to C.R.C.P. 26(a)(1), no later than TUESDAY, DECEMBER 11, 2001. The identification shall be in accordance with the provisions of C.R.C.P. 26(a)(4). To the extent that the identification described above or discovery conducted after the date identified above causes any party to wish to identify additional witnesses, documents, or tangible things which may be introduced at trial and which could not have reasonably been previously identified, modification of the Case Management Order to permit additional identification by such party shall be freely allowed. IV. DISCOVERY SCHEDULE Each party shall be permitted the number of interrogatories, requests for production, requests for admissions and depositions as provided under C.R.C.P. 26(b)(2). Any additional written discovery requests shall be served on the other party by mail no later than TUESDAY, OCTOBER 2, 2001, and all responses to written discovery shall be served by the responding party no later than FRIDAY NOVEMBER 2, 2001. All depositions shall be scheduled by the parties at dates and times convenient for all parties and their counsel. All discovery, including the scheduling and taking of depositions shall be concluded no later than TUESDAY, DECEMBER 11, 2001. V. TIME TO JOIN ADDITIONAL PARTIES AND AMEND PLEADINGS The parties do not presently anticipate the need to join additional parties. The Court has indicated at the Case Management Conference on July 19, 2001 that the Trial Management Order will ultimately serve to focus the issues that remain for trial. Any requests for leave to amend the pleadings in this matter shall be filed not later than TUESDAY, SEPTEMBER 11, 2001. VI. PRETRIAL MOTIONS No motions are currently pending before the court. Any additional motions for summary judgment shall be filed no later than TUESDAY, NOVEMBER 6, 2001. All other pretrial motions shall be filed no later than TUESDAY, JANUARY 8, 2002. Town of Carbondale v. Hicks Garfield County District Court Case No. 2000CV35-A Case Management Order -3- • VII. ,SETTLEMENT The parties expressly affirm that they have discussed settlement. The parties affirm that they will continue try to resolve as many of the remaining claims as possible before trial. VHI. OTHER MATTERS The parties' shall comply with C.R.C.P. 16(c). The parties shall confer and cooperate regarding the preparation and submittal of a proposed Trial Management Order to the Court, which document shall be filed with the Court no later than FRIDAY, DECEMBER 21, 2001. ORDER THE CASE MANAGEMENT ORDER SET FORTH ABOVE IS APPROVED BY THE COURT AND SHALL GOVERN THE FUTURE CONDUCT OF THIS CASE. DATED this/a, day of , 2001. BY TIIE COURT Case Management Order Approved: CALOIA & HOUPT, P.C. Attorney, for the Town of Carbondale Mark E.4Hamilton, #24585 1204 Grand Avenue Glenwood Springs, CO 81601 Phone (970) 945-6067 Town of Carbondale v. Hicks Garfield County District Court Case No. 2000CV35-A Case Management Order on. Thomas W. Ossola, Chi B f Judge OMB & GREEN, P.C. horneys for David W. ks and Connie P. Hicks Edward Mulhall, Jr., #1374 P.O. Box 790 Glenwood Springs, CO 81601 Phone (970) 945-6546 IP Chat 'FICA .'tE OF MAILING 1 certify that a copy of Foregoing WON mail@d to A11 Cfnnal of 'O,prd ' -4- This.,..._ � day of 2� "m°'RESUURCE WIEN ■■■.Y E N G I N E E R I N G I N C. Mark Hamilton, Esq. Caloia & Houpt, P.C. 1204 Grand Avenue Glenwood Springs CO 81601 RE: Town of Carbondale vs. Hicks Dear Mark: December 6, 2001 Pursuant to your request Resource Engineering, Inc. (RESOURCE) has completed a revised analysis of the Hicks water system based on new information obtained during the November 8, 2001 deposition of Mr. Hicks. The description of the existing water system provided in the Hicks deposition differs from the assumptions provided to RESOURCE by the Town of Carbondale and used in our previous analysis of the water system. Specifically, we learned that, according to Mr. Hicks, the waterline serving the Hicks' property does not consist entirely of 2 inch diameter pipeline but rather, consists of a variety of pipe sizes generally ranging from 1 inch to 2 inch in diameter. This new information was incorporated into our new analysis and pipeline delivery capacities were reevaluated. In summary, the existing water delivery system serving the Hicks property has increased the deliverable flow rate by three fold over what would otherwise be available if the system consisted of a 3/4 inch diameter pipeline as originally contemplated in the Town's 1953 Agreement. The increased delivery rate has allowed Hicks to serve several buildings that otherwise could not be served by the system if constructed in accordance with the Agreement. This increased delivery is evidenced by review of recent water use records which indicate that Mr. Hicks may have increased the volume of water use during peak summer months by 10 fold over that used by the original property owner, Mr. Flaven Cerise. The basis for these findings is outlined below. The flow capacity of the existing water supply system on the Hicks property was calculated using the Hazen -Williams formula for pressure flow in pipes. The length and diameter of the various pipe segments and the general configuration of the system was assumed to be as described by Mr. Hicks in his deposition. Some pipe lengths were modified slightly by RESOURCE to agree with site plans obtained from Garfield County files. The system is shown on the attached sketch, Figure 1, Schematic Diagram - Hicks Water System. Also attached is a map, Figure 2, Hicks Property - Location Map. The pressure at the Hicks tap to the Town of Carbondale water line was assumed to be 115 psi based on new information provided by Mr. Ballenger, Public Works Manager for the Town of Carbondale. Our previous calculations were based on a main line pressure of 80 psi which was more typical of historic conditions according to Mr. Ballenger. The elevations at the tap and at the delivery points are from the USGS quad map and are believed to be accurate to within ± 5 feet. The head loss due to entrance loss, meter loss and losses due to fittings, bends and changes in pipe sizes are minor compared to the total pipe lengths and were ignored in these calculations. Consulting Engineers and Hydrologists 909 Colorado Avenue ■ Glenwood Springs, CO 81 601 ■ (970] 945-6777 ■ Fax (970) 946-1137 Mr. Mark Hamilton, Esq. December 6, 2001 Page 2 The C coefficient for friction loss in the pipe was assumed to be 150 for all pipes in the system. Poly pipe and PVC pipe for which C = 150 accounts for most of the system with only 75 feet of copper pipe serving the modular home and two short lengths of Copper pipe at the beginning of the system. Copper has a C value of 140 or very near that of PVC. For the purpose of calculating the pipe flow capacity, all of the pipes within the system were converted to an "equivalent length" of 1'/<'diameter pipe. The conversion formula is: (De) 5 Le = L D J where De = 1.25" Le = Equivalent length L = Actual length D = Actual diameter Following is a table of equivalent pipe lengths for each pipe segment in the Hicks' water system: Length of Pipe L(ft) Pipeline Diameter D(in) Pipe size ratio De D Equivalent Length of 1 Y4" Pipe Le(ft) 10' 1.00 1.250 31 125' 1.00 1.250 381 100' 1.00 1.250 305 250' 1.00 1.250 763 400' 2.00 0.625 38 200' 2.00 0.625 19 75' 0.75 1.667 965 The pipe flow capacity for the Hicks system was calculated for water delivery to each of four end uses; Cerise home, trailer home, apartments/office and modular home. Each is shown on Figure 1. The equivalent 114"pipeline length from the Hicks tap to each of the four delivery points is as follows: 1. Cerise home, 1,212' 2. Trailer home, 1,975' RESOURCE ENGINEERING INC. Mr. Mark Hamilton, Esq. December 6, 2001 Page 3 3. Apartments/office, 1,555' 4. Modular home, 2,501 For purpose of comparison, the pipe flow capacity at each location was calculated assuming a tap pressure of 115 psi and a tap pressure of 80 psi. The lower pressure was chosen as a more typical water delivery pressure at a municipal system tap. A delivery pressure of 40 psi was used to calculate the flow in both cases. The following table shows the flows at the four locations for each tap pressure. Flow Capacity Table Hicks Pipeline Existing System @ 115 psi @80 psi 1. Cerise Home: 21.1 gpm 10.7 gpm 2. Trailer Home: 16.2 gpm 8.2 gpm 3. Apartments/Office: 18.4 gpm 9.4 gpm 4. Modular Home: 14.3 gpm 7.2 gpm 3/4" Pipeline (per 1953 Agreement) @ 115 psi @80 psi 1. Cerise Home (935'1: 6.3 gpm 3.2 gpm 2. Trailer Home (1,185'1: 5.6 gpm 2.8 gpm 3. Apartments/Office (1,435'): 5.0 gpm 2.6 gpm 4. Modular Home (1,310'): 5.3 gpm 2.7 gpm The second part of the above table shows the pipe flow capacity at each of the four locations using a 3/4" diameter pipe throughout the entire system. A C value of 150 was used and again both a 115 psi and 80 psi tap pressure were assumed. Copies of the computer generated calculation sheets for each of the scenarios described above are attached. The existing Hicks water distribution system, which consists of pipes that are larger than 3/4" diameter can deliver approximately three times more water than a system consisting of entirely 3/4" diameter pipelines. Based on results of our analysis of the Hicks water delivery system using the new information provided during Mr. Hicks' deposition, the conclusions stated in our September 25, 2001 letter are revised as follows: The following conclusions are based on our review of Mr. Flavin Cerise's November 17, 2000 Affidavit, Mr. Larry Ballenger's November 20, 2000 Affidavit, water use records for the Hicks' property provided by the Town of Carbondale, and our recent analysis of the Hicks' water delivery system as described by Mr. Hicks in his deposition. RESOURCE NGINEERING 1 N C. Mr. Mark Hamilton, Esq. December 6, 2001 Page 3 3. Apartments/office, 1,555' 4. Modular home, 2,501 For purpose of comparison, the pipe flow capacity at each location was calculated assuming a tap pressure of 115 psi and a tap pressure of 80 psi. The lower pressure was chosen as a more typical water delivery pressure at a municipal system tap. A delivery pressure of 40 psi was used to calculate the flow in both cases. The following table shows the flows at the four locations for each tap pressure. Flow Capacity Table Hicks Pipeline Existing System @ 115 psi (T80 psi 1. Cerise Home: 21.1 gpm 10.7 gpm 2. Trailer Home: 16.2 gpm 8.2 gpm 3. Apartments/Office: 18.4 gpm 9.4 gpm 4. Modular Home: 14.3 gpm 7.2 gpm 3/4" Pipeline (per 1953 Agreement) ▪ 115 psi X80 psi 1. Cerise Home (935'1: 6.3 gpm 3.2 gpm 2. Trailer Home (1,185'): 5.6 gpm 2.8 gpm 3. Apartments/Office (1,435'1: 5.0 gpm 2.6 gpm 4. Modular Home (1,310'): 5.3 gpm 2.7 gpm The second part of the above table shows the pipe flow capacity at each of the four locations using a 3/4" diameter pipe throughout the entire system. A C value of 150 was used and again both a 115 psi and 80 psi tap pressure were assumed. Copies of the computer generated calculation sheets for each of the scenarios described above are attached. The existing Hicks water distribution system, which consists of pipes that are larger than 3/4" diameter can deliver approximately three times more water than a system consisting of entirely 3/4" diameter pipelines. Based on results of our analysis of the Hicks water delivery system using the new information provided during Mr. Hicks' deposition, the conclusions stated in our September 25, 2001 letter are revised as follows: The following conclusions are based on our review of Mr. Flavin Cerise's November 17, 2000 Affidavit, Mr. Larry Ballenger's November 20, 2000 Affidavit, water use records for the Hicks' property provided by the Town of Carbondale, and our recent analysis of the Hicks' water delivery system as described by Mr. Hicks in his deposition. RESOURCE ENGINEERING I N C. ( Mark Hamilton, Esq. December 6, 2001 Page 4 1. A review of recent water use records maintained by the Town of Carbondale together with Mr. Flaven Cerise's descriptions of historic water use on his property indicate that Mr. Hicks has increased the use of the Town of Carbondale's municipal water by 10 fold during peak summer use months. 2. The ability to deliver a 10 fold increase in municipal water from the Town's system is in part a result of a water delivery system which consists of lines in excess of 3/411 in diameter. 3. The original water delivery system used by Mr. Cerise was physically incapable of delivering the amount of water now used by Mr. Flicks. This finding is based on review of the Town's water use records and on testimony by Flaven Cerise. 4. The existing water delivery system has increased the deliverable flow rate from the Town's water system by approximately three fold over that of a 3/411 diameter pipe (see above flow capacity table). 5. Based on review of Mr. Ballenger's Affidavit and through personal communication with Mr. Ballenger we have become aware that Mr. Hicks has historically allowed water to continuously flow through a stock trough during the winter without heaters, valves or flow restrictions of any sort. Water not directly consumed by cattle or lost to evaporation is discharged to the ground. This discharge of treated municipal water to the ground constitutes waste of a valuable resource. Sincerely, RESOURCE ENGINEERING, INC. R. Scott F• ifer Hydrologist RSF/mmm 476-2.17 mh hicks watcr.476.wpd Paul S. Bussone, P.E. Water Resources Engineer RESOURCE ENGINEERING I N C. CRYSTAL RIVER ABANDONED 3/4" TAP 4", 3/4" COPPER MAINUNE TOWN WATER SUPPLY PIPEUNE 10', 1" COPPER WITH 1" METER TWO APARTMENTS AND OFFICE 1-1/4" PVC TOWN OF CARBONDALE /.PPROX. 2.0 MILES 400, 2" PVC STOCK WATER 800r 1 1/4" PVC 125', 1" POLY ELLA DITCH APPROX. LOCATION ORIGINAL CERISE RANCH HOUSE APPROX. LOCATION PRINCE CREEK 1 DATE: DECEMBER 7, 2001 NETTLE CREEK INTAKE APPROX. 5.0 MILES JOB NUMBER: 476-2.17 IL G';CI9°'11'4, +012 1711' KS WAU M SY.^.TFIAMhz 75, 3/4" COPPER NEW MODULAR HOME —MOBILE HOME 7 (1972 - PRESENT) PRINCE CREEK ESTATES BUNKHOUSE X953 - EARLY 196(18) 2" PVC TO FUTURE HOME SITE 250, 1" POLY PIPE CHECKED BY: PSB SCALE: 1" = 500' E(� RESOURCE Ill ENGINEERING. INC. II mnMoo RC • *LW= 1If1O4 CO n1101 P7 $N f777 ■ 176 (I7 6411-1 117 SCHEMATIC DIAGRAM HICKS WATER SYSTEM FIGURE 1 % tai w/ t )$$- Tuesday, April 30, 2002 Kim Schlagel Senior Planner Garfield County Building and Planning Department Subject: 1051 County Road 11, Carbondale (Applications by Mr. Hicks re: Conditional and Special Use Premits) Dear Ms. Schalagel, Conflicting schedules have intervened with group consensus of a desire to meet with Mr. Hicks to discuss his intentions prior to any formal submittal of concerns to the county. However, it has been brought to my attention that written notification of concerns to Garfield County requires submittal by this date, April 30, 2002. Our property is included in Prince Creek Estates, Lot 6, developed by Mr. Hicks. We have ranch access easements on the north and south sides of our property. This alone could be considered an issue of privacy. Nevertheless, we entered into a' contract with this knowledge of ranch maintenance and built our home. The impact of construction traffic on the north easement has not caused us consideration for relocation. Should the quality of our property be impacted by the new conditions, we may assume a new position. With Mr. Hicks' proposed Special Use Permit, I believe the concern shakes out to the impact on the neighborhood where quality of life and zoning are concerned. With the population of the property allowing for six or more dwellings, does this constitute a ranch or a sub -division? As well, who will oversee the limitations of a "home occupation?" All of which are being accessed by a ranch easement through the properties of five homeowners. We do not desire to be at odds with our neighbor. Matters of residents' aside, we are looking to the county for a reasonable settlement of the established guidelines for this property. I think Dr. Heinemann covered the issues most thoroughly. I write to support and validate all of our concerns. Thank you for your time. Regards, Deborah Evans Prince Creek Estates, Lot 6 Homeowner May 07 02 02:20p ELORET CORP. 408 730 1441 p.2 Dr.. Klaus Heinemann 1178 Maraschino Drive Sunnyvale, CA 94087 Phone: 408-730-9136 Fax: 408-730-1441 E-mail: kwheinemann@eloret.com Tuesday, May 07, 2002 3v/.r 3470 Kim Schlagel Senior Planner Garfield County Building and PIanning Department 109 8°i Street, Suite 303 Glenwood Springs, CO 81601 Subject: 1051 County Road 111, Carbondale (Applications by Mr. Hicks re. Conditional and Special Use Permits) Dear Ms. Schlagel, We purchased our property (937 Prince Creek Road, "Lot 1 of Prince Creek Estates, County Road 111") from Mr. Hicks in the fall of 1998. There is a right-of-way easement for a drive-way/road in favor of Mr. Hick's property intersecting the southern part of our lot. In order to get a better understanding of the impact of that access road on the enjoyment of our property, we required, as part of the purchasing contract, a contractual statement by Mr. Hicks what his intentions were with regard to the adjacent land he owned, which is not part of the Prince Creek Homeowners Association. The following passage was included as Item #3 in our contract (Counterproposal dated 7/14/98, signed by both parties): "Seller has no plans for changing the use of Seller's ranch other than to build a new home on the ranch for the personal use of Seller's family_" In October of that same year, less than three months later, construction of the huge barn/office space/two- unit apartment complex had started. In the ensuing years, Mr. Hicks located, or expanded — whichever the case may be, his construction company activities at that location to a degree that the traffic on his access road is no longer "insignificant" but has started to impact the peace and enjoyment from our property. We kept quiet about this matter, because the situation had not become alarming, and good neighborly relations were more important to us than exposing ourselves to an unfriendly situation. Whereby it is my understanding that Mr. Hicks has meanwhile relocated the offices of his construction business to an appropriate location in Glenwood Springs, he apparently continues to use his property at 1051 County Road 111 as a staging/storage area for that business, and the associated truck traffic has remained. May U7 UZ U2:21p ELORET CORP. 408 730 1441 I am concerned that the conditional use permit for "a home occupation" he is seeking would open up this rural/residential area as precedence for an increasing amount of commercial activity, thereby further increasing the traffic through the access road easement through our and our five neighbors' properties. Similarly, I am concerned that the special use permit, opening up the two dwelling units in his barn from housing for his own rural activity employees to two open -market rental units might potentially snowball to precedence for an increasing number of apartment buildings and/or rental units built on that property, with increased traffic on the access road through our and our neighbors' properties; Having spoken with my neighbors to the south and west of us a number of times in this regard, I am confident to state that they share these concerns and are similarly apprehensive with regard to approving the subject applications. Sincerely, Klaus Heinemann Attachment p.3 May 07 02 09:41a ELORET CORP. )(111W 1-k 408 730 1441 Dr. Klaus Heinemann 1178 Maraschino Drive Sunnyvale, CA 94087 Phone: 408-730-9136 Fax: 408-730-1441 E-mail: kwheinemann@eloret.corn Tuesday, May 07, 2002 Kim Schlagel Fax 970-384-3470 Garfield County Building and Planning Department 109 8th Street, Suite 303 Glenwood Springs, CO 81601 Subject: 1051 County Road 111, Carbondale (Applications by Mr. Hicks re. Conditional and Special Use Permits) Dear Ms. Schlagel, My neighbor John McCarty forwarded to me a copy of Mr. Chain's letter of May 6, 2002, addressed to you. I have also been in touch with Deborah and Shane Evans and am delighted that you are also opposed to the subject applications. In an attempt to further strengthen the case, I am attaching a copy of a "Counterproposal" signed by Connie and David Hicks on 71141.98 in conjunction with our purchase of Lot 1, Prince Creek Estates, from them. I had mentioned this document already in my letter of 4/22/2002 to you. In this document, signed just six weeks prior to the date of the affidavit Mr. Chain is referring to and of which I had been unaware, Mr. And Mrs. Hicks warrant in item #2: "Seller has no plans for changing the use of Seller's ranch other than to build a new home on the ranch for the personal use of Seller's family." On August 25 of that year, this statement was apparently already watered down to building "... employee dwelling unit(s) ...," and in October of the same year a huge barn was built, and use of his ranch for his construction business commenced. Once the precedence of two open -market rental units and a business of just a "handful" of employees has been granted, snowballing to more rental dwellings and an increase of the business activities is just the "handwriting on the wall" -- given the above track record of discrepancies between signed statements and actions on the part of Mr. Hicks. I very much appreciate your effort in de ing Mr. Hicks' applications. Klaus Heinemann Attachment p.1 may lit ud u`J:41a ELURE.I CURD. 408 730 1441 p.2 Mason & Morse Real Estate 0304 Highway 133 Carbondale, CO 81623 Phone: (970) 963-3300, Fax: (970) 963-0879 '11(19 FOI1M }IAS IMPORTANT LEGAL CONSEQUENCES AND THE PARTIES SHOULD CONSULT LEGAL ANO TAX OR OTHER COImSEL BEFORE SIGNING COUNTERPROPOSAL IRE: Propoasd contract to buy and sell the following described real estate in the County of Garfield . Calorud°, to wit • Lot 1, Prince Creek Estates known as No. 937 County Road 111 dated July 13 Connie F. Hicks David W. Hicks Shcer. and Jan Michael Heinemann Buyer. Street Address ' 19 98 between Carbondale City Julv 14 19 98 CO 81623 Slate Zip • Illi \k The undrsigmd sump(' the proposed cmaroct, sutjcct is the Following amendments: 1. The purchase price shall be $525,000.00 with down payment and/or new loan amount adjusted accordingly. 2- Section 21.^ADDITIONAL PROVISIONS" Number 5 and 6 are hereby deleted. 3. Seller has no plans for changing the use of Seller's ranch other than to build a new home on the ranch for the personal use of Seller's family. Seller will provide Buyer within 10 days of acceptance hereof, all information and 4/1 documents currently in the possession of Seller that would be of interest to Buyer, regarding the construction of improvements and maps of the area, if any. • 5. With regard to the Homeowners Association for Prince Creek Estates, the intent'in +,p, the Protective Covenants is to minimize negative impact to views as a result of new ' SbS construction on vacant lots. Any new construction for Prince Creek. Estates. is subject . �.A` to approval by the Architectural Review Committee of Prince Creek Estates. Seller is Y currently a member of the Homeowners Association for Prince'Creek Estates; but will no. longer be a member upon the closing of this transaction, and therefore will have no authority to approve or disapprove plans submitted for the development of Lots 5 or 6 in Prince Creek Estates, unless such plans are submitted prior to closing hereunder. Upon closing hereunder, Buyer will become a member of the Homeowner's Association for Prince Creek Estates and as such will have an opportunity.to participate in. the • approval / disapproval process for all plans submitted to the Architectural Review. Committee with regard to Lots 5 and 6, Prince Creek Estates. All oilier lcrnu and conditions shall remain the same This counterproposal shall expire unless accepted in writing, by Buyer end Seller, us in duce by their sigrmwures below, and the affor% pony to this dominant receives notice of suolt accoptwsce on or before July 15 19 98 if accepted, the proposed cmmack. ha umeuded hereby, shell become 4 contract between Senor and Buyer. - SELLER F Connie F. Hicks SELLER DATE 7- / elf air DATE David W. Hicks BUYER Jan Niche k' Heinemann DATE 7 -/'ll -78r %-t/ 1 The printed portions of this form, except (imlicisedgdifferentiated) additions, have Wen approved by the Colorado Real Estate Comm skin. No. CP401.94. COUNTERPROPOSAL ReoSFASTS ram's. Bax 4700, Fdsw, CO 80443; Version 551.CRea!FA$Te, 1998; Refl 1COCOL223154 Completed by -Nancy Emerson. CPB. CRS. ORI. Braker Asseaialo, Mason a Morse Real Bahasa 0711419B 1298:37 Papel of2