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HomeMy WebLinkAboutBeattie Letter wGDC commentsBEATTIE, CHADWICK & HOUPT, LLP Attorneys And Counselors At Law 932 Cooper Avenue Glenwood Springs, Co 81601 Steven M. Beattie Telephone (970) 945-8659 Glenn D. Chadwick Fax (970) 945-8671 Jefferson V. Houpt Julie S. Hanson September 4, 2013 Sent by email to: gcarmoney@garfield-county.com Gale D. Carmoney Code Enforcement Officer Garfield County Community Development 108 8th Street, Suite 401 Glenwood Springs, CO 81601 Re: Gould Construction, Inc. – 4067 County Road 154 Property Dear Gale: This firm represents Gould Construction, Inc. and its president, Mark Gould (collectively “Gould”). For about 16 years, Gould has operated a contractor’s yard on a 2.446 acre parcel located at 4067 County Road 154, approximately .2 mile south-southeast of the intersection of State Highway 82 and County Road 154 (the “Property”). The Property was the subject of a Garfield County Special Use Permit, Resolution No. 97-92, approved October 7, 1997 (the “SUP”), issued to Joe and Geraldine Rae Jammaron and Mark Gould. The SUP was issued pursuant to an application submitted by Architect Gregory C. Wine dated April 2, 1997 (the “Application”). The Application stated in Section 1, Property Use, “A 2.446 Ac. portion of the above-described property is planned to extend a pre-existing, non-conforming use.” (Emphasis added.) This section also stated, “Mr. Gould estimates between 20-100 vehicles/day, depending on construction volume.” Since issuance of the SUP, Gould has operated the Property as a construction yard. Uses from the start have included vehicle and equipment storage, and storage of materials. The Property is located in an area that has been used exclusively for industrial purposes since at least the 1960s, and is not visible from residential areas. Mark Gould states that Gould has received no complaints about Gould’s uses and operations on the Property. Earlier this year your office became involved with use issues on nearby property at 3927 County Road 154, leased by Eastbank, LLC to InterMountain Waste & Recycling LLC. Gould received information from attorney Chad Lee at Balcomb & Green, P.C. that, in the course of your Eastbank/InterMountain review, the uses on the Gould Property had come to your attention. As reported, you noted that the 1997 SUP approved Gould’s vehicle storage and other uses agreed to in Garfield County letters dated November 2, 1994 and December 1, 1994, but that Gale Carmoney Garfield County Code Enforcement September 4, 2013 Page 2 of 3 these permitted uses did not include storage of materials. Accordingly, as reported, you questioned whether Gould’s storage of materials at the Property exceeds its legal authorization. As discussed in our telephone conversation last week, it is Gould’s position that the purpose of the Application and the SUP was to authorize additional vehicle storage on the Property, above and beyond storage previously permitted as reflected in the 1994 letters. Hence, the use of the phraseology “to extend a pre-existing, non-conforming use” in the Application. However, storage of materials at the site had been a pre-existing, non-conforming use on the same property for decades prior to Gould’s Application. It was, and is, Gould’s position that such use is authorized by law as a pre-existing, non-conforming use, and therefore did not need to be addressed in the Application and the SUP. DISCUSSION There can be no doubt whatsoever that the Property was used – heavily – for the storage of materials prior to Gould’s occupancy. This was expressly recognized in the staff reports on the Application, that stated, “The area proposed for the storage of the equipment was previously used for an asphalt batch plant processing operation that operated as a nonconforming use for a number of years.” Asphalt batch plants require constant supplies of gravel and oil for making asphalt, and those materials were continuously present in substantial quantities on the Property previously. As I mentioned, I have personal knowledge of these facts, having worked at the site in the summer of 1968 which, as I recall, was the first year that Paul Rippy had acquired and operated Grand River Construction. Your letter of June 25, 2013 contains helpful and appropriate information to the current inquiry. You noted, “The site contained a mineral (gravel/concrete) extraction operation which included a concrete batch plant with numerous cement mixers, cement transports, gravel hauling equipment, concrete pumping units and support vehicles on the property.” As stated above, the Gould Property also had an asphalt batch plant and associated equipment and materials (prior to becoming the Gould Property). Your letter also noted, “Prior to the County’s adoption on October 13, 2008, the County’s land use code allowed for non-conforming uses to be changed so long as the change in use was ‘an equal or lesser degree of non-conformity’ than the previous use.” Here, one needs not look to evaluating change in use, because the storage of materials is the same use that existed to greater degree in prior years. It is interesting to note that your June 25, 2013 letter regarding Eastbank/InterMountain relied predominately on pre-existing, non-conforming uses – since the only SUP referenced was Resolution No. 97-92, issued in response to the Gould/Jammaron Application pertaining to nearby property. If the Eastbank/InterMountain uses may be continued based on a “pre-existing, non-conforming use” analysis, surely Gould and the Property are entitled to the same consideration.