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HomeMy WebLinkAbout3.0 Memo June, 2012FILE NOTE SCANNING SWEEP A. SCHWALLER June, 2012 It appears this request to vacate a portion of CR 304 went to hearing but did not get past proper notice. A search for a later meeting or hearing did not show the discussion came up again. OCTOBER 15, 2007 PROCEEDINGS OF THE GARFIELD COUNTY BOARD OF COMMISSIONERS GARFIELD COUNTY, COLORADO ROAD AND BRIDGE — CR 304 - KLEBOLD BUILDING AND PLANNING - CONSIDER A REQUEST TO VACATE A PORTION OF COUNTY ROAD 304 (RICHARDSON ROAD) — APPLICANTS: LARRY AND KAREN KLEBOLD — CRAIG RICHARDSON Planner Craig Richardson submitted the following exhibits: Exhibit A — Proof of Mail Receipts; Exhibit B - Proof of Publication; Exhibit C — Garfield County Zoning Regulations of 1978 as amended; Exhibit D —Application; Exhibit E — Staff Memorandum; Exhibit F — Memo from Garfield County Road and Bridge Department dated October 1, 2007; Exhibit G — Letter from Bureau of Land Management dated September 25, 2007; Exhibit H — E-mail from Jeff Nelson, Garfield County Assistant Engineer dated September 5, 2007 and Exhibit 1— Letter from the United States Department of Agriculture dated September 27, 2007. Chairman Martin entered Exhibits A — I into the record. John Savage — Attorney representing applicants was present. He tendered proof of public notice to Don DeFord who took time to review. He Asked Mr. Savage if he could speak for the applicant in terms of the adequacy of notice and he stated he could. Mr. Savage stated they are asking for vacation of all of County Road 304 on the Klebold property wherever that may be located. Don noted that the request as Mr. Savage has stated is to vacate the public road wherever it might lie on Mr. Klebold's property. According to Don that is not what the notice provides. Don reviewed the noticing requirements for the public hearing and determined the legal description does not imply what Mr. Savage is asking for. It is a decision for the Board whether the proper notification has occurred under your resolution and under state law. Commissioner McCown — The problem I'm having on its face was alluded to by the applicant and by our attorney and that is the series of several maps show this public road taking numerous routes and stopping at several different locations. Several maps that I have seen clearly show this road continuing on into public land. And if that is the case then the 18 month notice has to qualify and given the history of this Board I don't think we have ever vacated any road that accessed public land. Not saying we wouldn't but I don't recall this Board ever doing it. Right now it's hard for me to make a decision on whether to go forward or not on the evidence that I have seen in the staff report on whether or not this road does access public property. I've seen no concrete documented evidence either way that it does or it doesn't so in the least I would have to ask for a continuance to see more information. And documentation on whether this road is in its public forum, not as a County Road but in its public format, does in fact enter into or access public land. I know the BLM has alluded to the fact that it does. I know our own County Engineers alluded to the fact that it does but I have not seen a historical map that shows me that it does so I guess that is what I would be looking for before I feel comfortable making a decision on this. Commissioner Houpt — This gets down to the whole debate; actually because the applicant doesn't believe it accesses public land and we have heard from our staff and there are old maps that indicate that there is that historical use and it does access public lands. If we continue this there would still on my part not be a guarantee that I still wouldn't want us to require the 18 month notice period. Commissioner McCown — That was the point I was eluding to if it does access public land the 18 month notice clearly has to apply. But until I've seen a map that says yes it does access public land or no it doesn't, I can't rule on that today because I'm not seeing any evidence other than GIS Maps that we've created for our own road and bridge use that show the roads that are in our road system. Commissioner Martin — I did road research in the same area and there are original surveys somewhere around 1879 that the BLM conducted. I think we need to locate those particular items as pieces of evidence to see if it does or does not exist. That will clear up the debate between the BLM and Forrest Service. I'm looking for a continuance and more research by the staff to come back. I don't think we need to give the applicant the brush off and say you have to start over for another 18 months. I think we need to take this particular notice under advisement one more time and either establish it needs the 18 month period or not. Commissioner Houpt — Can we accomplish that if we open this hearing and continue it; can we then come back and say when we have more evidence that the notice is not acceptable? Are we waving that opportunity by agreeing to open this hearing? Commissioner McCown — Wouldn't that be the similar circumstances on any notice that is flawed if we choose to go forward; it would be subject to question and possible reversal of whatever decision might come out of it Don? Commissioner Houpt — If we are looking for maps the BLM stated they had some evidence and we would want to check with them. Craig — Also regarding the letter of the Forest Service and the BLM they are not contradicting each other. The Forest Service is saying they do not manage lands at this road and BLM says that they do manage lands that this provides access to. Don — One of the problems I'm struggling with is we focused on the 18 month notice and maybe appropriately so but I don't want the Board or the applicant to just go by the problem I'm looking at in terms of the description of the property for which vacation is being sought because in a way they are related. The applicant in the notice has set forth a specific alignment for the roadway. But that alignment does not provide access to public land. But we have also discussed the possibility that there are other alignments other than the legally described alignment that we have on this property for which the applicant is also seeking vacation by this Board. We don't have a description for those properties and it is those other alignments that may in fact provide access to public land. So it makes it difficult to decide where we are in the sense if we are only proceeding on the legally described right-of-way that can be laid out on the ground; a determination can be made whether that contacts public land or not and we can go forward. But that doesn't end the question if the applicant is seeking vacation for road alignments that have not been legally presented. Commissioner Houpt — I don't think I would agree with going forward. Commissioner Martin — With the possibility that the access to public lands will be vacated by any action found in the defendants favor and therefore proper notice has not been served to the general public because it has not been depicted legally for access to the public lands then to me that is a vested right, access to public land. If it was there prior, again out of the private sector and had been established as a public transportation corridor to public lands, I don't think it's our right to go ahead and vacate without locating it. John — I was going to ask for a continuance. I filed this as a generic filing for all the existing and possible configurations of the road. I made the mistake in not including in the notice both the specific plus all those other roads wherever they may exist. I can't describe those roads. The best I can do is say as shown on road map dated X. We are requesting a continuance anyway because of new information and as Don has pointed out my notice is defective. The access to public lands issue is a little more complicated and I am not sure how to deal with that but the bottom line is if we felt this road had any evidence of providing access to public lands as configured we wouldn't be here. We are not admitting the road exists at all because as far as we know there are no deeds, no easements etc. We are not conceding that a road exists at all except for the purposes of this vacation. If one's there we ask to vacate it. This may not be the proper forum to pursue this matter. We may have to go to court. Then we come back and say okay a judge says there is no road here, and then we can vacate. Commissioner Houpt — So I don't think you're talking about a continuance you are just withdrawing your application. John — No, I would like to continue it for now. Commissioner Houpt — If there is a problem with notice we can't continue anyway. Don — If the notice is defective you can't open the hearing and I would suggest appropriately we can re -set this hearing but it should be re -noticed. It should be vacated and re -set for a different date allowing adequate time for John to complete his research. John — We may have to do the 18 month notice so it doesn't procedurally become an issue. I would look at something after the first of the year. Commissioner McCown — If that is a possibility for your client, there is not a problem scheduling hearings after the first of the year. Why don't you visit with them and see what they want to do and then contact the Planning Department and reschedule. Commissioner Martin — The finding will be the notice is defective therefore the public hearing cannot go forward and we will give you the option to re -file. AUGUST 13, 2007 PROCEEDINGS OF THE GARFIELD COUNTY BOARD OF COMMISSIONERS GARFIELD COUNTY, COLORADO BUILDING AND PLANNING - CONSIDER THE REFERRAL FOR A REQUEST TO VACATE A PORTION OF COUNTY ROAD 304. APPLICANT IS LARRY A AND KAREN KLEBOLD — CRAIG RICHARDSON Craig submitted the request to vacate a portion of CR 304 also known as Richardson Road south of the Town of Parachute. The portion of CR 304 that lies within the applicant's property boundary does not appear to serve as access to public or private property other than the applicants, and as such, staff recommends the Board consider the comments from the required agency and department referrals directly and not refer this item to the Board of County Commissioners. John Savage was present. A motion was made by Commissioner Houpt and seconded by Commissioner McCown to refer this directly to the Board of County Commissioners for a hearing. In favor: Houpt — aye McCown — aye Martin - aye