Loading...
HomeMy WebLinkAboutbocc.min.reg.12152004 PITKIN COUNTY COMMISSIONERS REGULAR MEETING AGENDA Plaza One Conference Room WEDNESDAY~ DECEMBER 15~ 2004 2:00 PM ADDITIONS/DELETIONS TO AGENDA PUBLIC COMMENT, COMMISSIONER COMMENTS, PROCLAMATIONS CONSENT ACTIONS 1. Minutes of December 1 Regular Meeting 2. Resolution Adopting Governance Policies, Debbie Quinn 3. 1st Reading, Set for Public Hearing 12/21, Ordinance Amending Standard of Conduct, D. Quinn 4. 1 st Reading and Set for Public Hearing 1/12/05, Ordinance Adopting Amendment to Pitkin County Code Section 6.16.080 Commemial Waste Haulers Notice Of Violation--Removal-- Assessment Of Costs, Chris Seldin CONSENT PUBLIC HEARING - 2"d Readings 5. Intergovernmental Agreement with Basalt Fire Department, Tony Fusaro 6. Ordinance Accepting a Donation of Cozy Point South Trail Easement, Dale Will ADMINISTRATIVE ACTIONS - 1st Readings~ Set for Public Hearing on December 21: 7. Resolution Summarizing Revenues and Expenditures for Each Fund and Adopting a 2005 Budget for Pitkin County, Debe Nelson 8. Resolution Appropriating Sums of Money to the Various Funds, in the Amounts and for the Purposes Set Forth Below for Pitkin County 2005 Budget Year, Debe Nelson 9. Resolution Levying General Property Taxes for 2004, to Help Defray the Costs of Government for Pitkin County, Colorado, and its Special Districts for the 2004 Budget Year, Debe Nelson LAND USE CONSENT PUBLIC HEARINGS 1. Ordinance Adopting Amendment to Pitkin County Land Use Code Section 3-310, Adding Vonstrained Site Transferable Development Rights, Sec. 3-310-050, 2nd Reading, (PN12/4/04) J. Ely 2. Smuggler Result 1041 HR, Conceptual Submission, Special Review, GMQS Exemption & Modification of County Road Maintenance Classification (PN 10/16/04) (cont'd from 11/17/04 at request of Applicant) (cont'd to 1/26/05), S. Wolff 3. Aspen Sports Car Club Special Review, Amendment to Approval for Winter Operations and GMQS Exemption for Commercial Development with Negligible Growth Impacts (PN 11/13/04), E. Louthis 4. Schlumberger Major Plat Amendment, River Divide Lot 2 (pN 9/25/04) (cont'd from 11/17/04 at request of Applicant) (cont'd to 1/12/05), E. Louthis LAND USE CONSENT ACTIONS 1. TDR Program Update (PN 11/13/04), S. Wolff 2. Capitol Creek Outfitters Temporary Use Permit (Sleigh Rides ~ St. Benedicts Monastery), S. Wolff 3. Shifrin Minor Amendment to Development Permit (cont'd froml2/1/04 at request of Applicant) (cont'd to 2/9/05), E. Louthis 4. Forwarding 2004 Rural Area Residential (Crystal Ama) GMQS Scores for New Subdivision Lots / 35+ Acre Parcels, S. Wolff LAND USE ACTIONS 1. Ashcroft Ski Touring Master Plan Amendment (PN 11/13/04), S. Wolff 2. Bates 1041 Takings Determination (cont'd from 11/17/04 at request of Applicant), E. Louthis 3. Timroth Takings Determination, Lot 33 (cont'd from 11/17/04), S. Wolff 4. Crystal Island Ranch Submission/PUD/Final Plat & Rezoning, 2nd Reading, S. Wolff 5. Appeal of Little Cloud Subdivision Access Permit (cont'd from 11/23/04), L. Clarke BOCC OPEN DISCUSSION ADJOURN / APPROVED JANUARY 12, 2005 MINUTES PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS REGULAR MEETING DECEMBER 157 2004 NOTE: For all staff memorandums and associated documents, including additional exhibits submitted, refer to the BOCC PACKET for December 15, 2004 CALL TO ORDER: Chairperson Farris called the regular meeting of the Board of County Commissioners to order at 2:00 PM. COMMISSION MEMBERS PRESENT: Commissioners Dorothea Farris, Shellie Roy, Mick Ireland, Patti Clapper, Jack Haffield COMMISSION MEMBERS ABSENT: None ADDITIONS/DELETIONS TO AGENDA: None PUBLIC COMMENT: Toni Kronberg appeared before the Board to voice concerns regarding traffic issues associated with the school and the round about leading into town. PROCLAMATION HONORING SHELLIE ROY FOR HER DEDICATION AND LEADERSHIP AS A PITKIN COUNTY COMMISSIONER COMMISSIONER COMMENTS: Commission members gave comments on local and state issues. CONSENT ACTIONS: APPROVAL OF MINUTES OF REGULAR MEETING OF DECEMBER 1, 2004 - STAFF PERSON: JEANETTE JONES, CLERK TO THE BOARD OF COUNTY COMMISSIONERS CONSENTACTIONS: BOARD OF COUNTY COMMISSIONERS 1 REGULAR MEETING DECEMBER 15, 2004 RESOLUTION APPROVING GOVERNANCE POLICIES - PULLFI3 FROM THF CONSENT AGENDA - STAFF PERSON: DEBBIE QUINN~ ASSISTANT COUNTY MANAGER FIRST READING-ORDINANCEAMENDING STANDARD OFCONDUCT- PULLED FROM THE CONSENTAGENDA-STAFFPERSON: DEBBI~ QUINN~ASSISTANTCOUNTYMANAGER FIRST READING-ORDINANCEADOPTING AN AMENDMENTTOTH~ PITKIN COUNTY CODE SECTION 6.16.080; COMMERCIAL WASTF HAULERS; NOTICE OF VIOLATION - REMOVAL - ASSESSMENT OF COSTS - MOTION TO APPROVE AND SET FOR SECOND READING ON JANUARY 127 2004 - STAFF PERSON: CHRIS SELDIN, ASSISTANT COUNTY ATTORNEY Commissioners Hatfield and Clapper requested that the Governance Policies and the Standard of Conduct matters be pulled from the Consent Agenda for clarifications. Commissioner Clapper moved approval of items one and four on the consent agenda. Commissioner Haff'ield seconded the motion. Motion passed unanimously. RESOLUTION APPROVING GOVERNANCE POLICIES - MOTION TO APPROVE - STAFF PERSON: DEBBIE QUINN~ ASSISTANT COUNTY MANAGER Commissioner Clapper referred to Policy 2.14 (Open Records and Public Information Requests). She said she wanted to clarify that when discussing the issues of e-mails that personal e-mails can be sorted out, if an when e-mails are requested. Commissioner Hatfield questioned why a governance policy was needed. He said he is very uncomfortable with all of a sudden having multiple rules to work with. Therefore, he is not supportive of this. Commissioner Ireland expressed a concern with respect to Section 2.1, which mandates that all employees shall be subject to the provisions of the Hatch ACT that sets for the regulations for political activity of certain state and local employees. Additionally, he said he thinks paragraph 3 of this policy is a little broad. He thinks the language should be limited to say an employee cannot spend county resoumes or county time on behalf of candidates and causes. Commissioner Clapper moved approval of the Resolution. Commissioner Ireland seconded the motion. Motion passed with three yea votes with one BOARD OF COUNTY COMMISSIONERS 2 REGULAR MEETING DECEMBER 15, 2004 nay vote by Commissioner Hatfield. Commissioner Roy not present for this item. FIRST READING - ORDINANCE AMENDING STANDARD OF CONDUCT - MOTION TO APPROVE FIRST READING AND SET FOR SECOND READING ON DECEMBER 21~ 2004- STAFF PERSON: DEBBIE QUINN~ ASSISTANT COUNTY MANAGER Commissioner Haffield moved to amend Section B. regarding Institutional Conflicts of Interest. He suggested an amendment to the first sentence changing the language "requesting action from the Public Official" to "requesting action from the respective board". Commissioner Clapper seconded the motion. Motion passed with four yea votes. Commissioner Roy not present for this meeting. Commissioner Clapper moved approval of first reading of the Resolution, as amended, and set for second reading on December 21, 2004. Commissioner Hatfield seconded the motion. Motion passed with four yea votes. Commissioner Roy not present for this item. CONSENT PUBLIC HEARINGS - SECOND READINGS: SECOND READING - RESOLUTION AUTHORIZING THE BOARD TO ENTER INTO AN INTERGOVERNMENTAL AGREEMENT WITH THE BASALT AND RURAL FIRE PROTECTION DISTRICT FOR THE PURPOSE OF PERFORMING FIRE SPRINKLER PLAN REVIEWS - MOTION TO APPROVF - STAFF PERSON: TONY FUSARO~ CHIEF BUILDING OFFICIAL SECOND READING - ORDINANCE ACCEPTING DONATION OF THE COZY POINT SOUTH TRAIL EASEMENT AND DESIGNATING THE SAME AR COUNTY OPEN SPACE - MOTION TO APPROVE - STAFF PERSON: DALF WILL~ OPEN SPACE AND TRAILS DIRECTOR Commissioner Clapper moved approval of the Consent Public Hearings portion of the agenda. Commissioner Ireland seconded the motion. Motion passed unanimously. ADMINISTRATIVE ACTIONS - FIRST READINGS AND SET FOR PUBLIC HEARINGS ON DECEMBER 21, 2004 FIRST READING - RESOLUTION SUMMARIZING REVENUE AND EXPENDITURES FOR EACH FUND AND ADOPTING A BUDGET FOR PITKIN COUNTY~ COLORADO FOR THE CALENDAR YEAR 2005 - MOTION TO) APPROVE AND SET FOR SECOND READING ON DECEMBER 21, 2004- STAFF PERSON: DEBE NELSON~ FINANCE DIRECTOR BOARD OF COUNTY COMMISSIONERS 3 REGULAR MEETING DECEMBER 15, 2004 Commissioner Hatfield thanked staff, section leaders and the board for their hard work on the budget. He said he has some basic disagreement with some elements of the budget and enough to articulate several points. · The appropriation for the Aspen Historical Society because he does not feel it should be a function of the County Government. · The District Attorney's salary because he disagrees with the starting salary of $82,500 exceeding the $67,500 for a district attorney that has no experience · How the board has decided to handle the Health and Human Services non-profit issue, and a lack of understanding, by staff, about what the board meant about stable funding for certain non- profits. · That the board was asked, by the chair, to not incrementally look at each request, but rather at the 40 requests as a whole. In addition, there are multiple grants that he does not agree with. · The one time funding of $2,782,218 dedicated to the facility improvement fund. He said because of these issues he would respectfully vote no on this resolution. Chairperson Farris clarified the issue of reviewing grant requests by saying that the board once had a policy that it would look at all the grant requests, however, this year, the board decided to set up a committee with specific criteria to review the grants including an appeal process, which would include allowing appeals to come to the board level. Commissioner Ireland gave a presentation on the budget process for the benefit of the public. He said he respects Commissioner Hatfield's position but he is going to accept this budget, as it is, and moved approval of first reading of the resolution and set for second reading and public hearing on December 21, 2004. Commissioner Clapper seconded the motion. Motion passed with four yea votes with one nay vote by Commissioner Roy. FIRST READING - RESOLUTION APPROPRIATING SUMS OF MONEY TO THE VARIOUS FUNDS~ IN THE AMOUNTS AND FOR THE PURPOSES SET FORTH FOR PITKIN COUNTY~ COLORADO~ 2005 BUDGET YEAR - MOTION TO APPROVE ON FIRST READING AND SET FOR SECOND READING AND PUBLIC HEARING ON DECEMBER 21~ 2004 - STAFF PERSON: DEBF NELSON~ FINANCE DIRECTOR Commissioner Ireland moved approval of first reading of the Resolution and set for second reading and public hearing on December 21, 2004. Commissioner Clapper seconded the motion. Motion passed with four yea votes with one nay vote by Commissioner Hatfield because of the same concerns earlier stated. BOARD OF COUNTY COMMISSIONERS 4 REGULAR MEETING DECEMBER 15, 2004 FIRST READING - RESOLUTION LEVYING GENERAL PROPERTY TAXES FOR THE YEAR 2005~ TO HELP DEFRAY THE COSTS OF GOVERNMENT FOR THE COUNTY OF PITKIN~ COLORADO~ AND ITS SPECIAL DISTRICT FOR THE 2005 BUDGET YEAR - MOTION TO APPROVE ON FIRST READING AND SET FOR SECOND READING AND PUBLIC HEARING ON DECEMBER 217 2004- STAFF PERSON: DEBE NELSON~ FINANCE DIRECTOR Commissioner Clapper moved approval of first reading of the Resolution and set for second reading and public hearing on December 21, 2004. Commissioner Ireland seconded the motion. Motion passed unanimously. LAND USE CONSENT PUBLIC HEARINGS: SECOND READING - ORDINANCE ADOPTING AN AMENDMENT TO THE PITKIN COUNTY LAND USE CODE SECTION 3-310~ ADDING CONSTRAINED SITE TRANSFERABLE DEVELOPMENT RIGHTS~ SECTION 331050 - PULLED FROM THE CONSENT AGENDA - STAFF PERSON: JOHN ELY~ COUNTY ATTORNEY SMUGGLER RESULT 1041 HAZARD REVlEW~ CONCEPTUAL SUBMISSlON~ SPECIAL REVIEW~ GMQS EXEMPTION AND MODIFICATION OF COUNTY ROAD MAINTENANCE CLASSIFICATION - MOTION TO CONTINUE TO JANUARY 26~ 2005 RESOLUTION APPROVING THE ASPEN WINTER DRIVING EXPERIENCE LLC AMENDMENT AND GMQS EXEMPTION TO THE ASPEN RACEWAY SPECIAL REVIEW USE PERMIT FOR A DEFENSIVE WINTER DRIVlNC- PROGRAM - PULLED FROM THE CONSENT AGENDA - STAFF PLANNER: EZRA LOUTHIS SCHLUMBERGER MAJOR PLAT AMENDMENT~ RIVER DIVIDE LOT 2 - MOTION TO CONTINUE TO JANUARY 12~ 2005 - STAFF PLANNER: EZRA LOUTHIS Commissioner Roy requested that the Ordinance amending the land use code be pulled from the Consent Agenda. Commissioner Hatfield requested that the Aspen Sports Car Club application be pulled from the Consent Agenda for a clarification. Commissioner Hatfield moved approval of the remaining items on this portion of the agenda. Commissioner Clapper seconded the motion. BOARD OF COUNTY COMMISSIONERS 5 REGULAR MEETING DECEMBER 15, 2004 Vice-Chairperson Roy opened the hearing to public comment. There being no comment, she closed the public hearings on Items 2 and 4 and called the question. Motion passed unanimously. SECOND READING - ORDINANCE ADOPTING AN AMENDMENT TO THF PITKIN COUNTY LAND USE CODE SECTION 3-310, ADDING CONSTRAINED SITE TRANSFERABLE DEVELOPMENT RIGHTS, SECTION 331050 - MOTION TO APPROVE - STAFF PERSON: JOHN ELY, COUNTY ATTORNEY Chairperson Farris opened the hearing to public comment. There being no comment, she closed the public hearing and brought the matter back to the Board for action. Commissioner Roy said she is comfortable moving forward with the proposed legislation that she had it confused with other legislation, which would affect property currently in negotiations. Commissioner Hatfield moved approval of second reading of the Ordinance. Commissioner Clapper seconded the motion. Motion passed unanimously. RESOLUTION APPROVING THE ASPEN WINTER DRIVING EXPERIENCE LLC AMENDMENT AND GMQS EXEMPTION TO THE ASPEN RACEWAY SPECIAL REVIEW USE PERMIT FOR A DEFENSIVE WINTER DRIVlNQ PROGRAM - PULLED FROM THE CONSENT AGENDA - STAFF PLANNER: EZRA LOUTHIS After a discussion with staff, and the applicant, regarding clarifications to the operation, Commissioner Clapper moved approval of the Resolution. Commissioner Hatfield seconded the motion. Chairperson Farris opened the hearing to public comment. Michael Owsley voiced support from the Woody Creek Caucus Planning Commission with a condition that that the planning office conduct an annual review to assess the noise impacts, etc. Commissioner Farris asked the applicants if they intended to hire local people otherwise, the conditions from the housing regarding employee mitigation would apply. The applicants responded that they anticipate hiring local people. Chairperson Farris called the question. Motion passed unanimously. BOARD OF COUNTY COMMISSIONERS 6 REGULAR MEETING DECEMBER 15, 2004 LAND USE CONSENT ACTIONS: ANNUAL REVIEW OF THE TRANSFERABLE DEVELOPMENT RIGHTS PROGRAM - MOTION TO ACCEPT - STAFF PLANNER: SUZANNE WOLFF RESOLUTION APPROVING A TEMPORARY COMMERCIAL USE/SPECIAL EVENT PERMIT FOR SLEIGH RIDES AT ST. BENEDICTS MONASTERY~ MED-DECEMBER~ 2004 THROUGH MARCH~ 2004 - PULLED FROM THE CONSENT AGENDA - STAFF PLANNER: SUZANNE WOLFF FORWARDING 2004 RURAL AREA RESIDENTIAL GMQS SCORES FOR NEW SUBDIVISION LOTS/35+ACRE PARCELS - MOTION TO ACCEPT - STAFF PLANNER: EZRA LOUTHIS Commissioner Clapper requested that the application for sleigh rides at the Monastery be pulled from the consent agenda for discussion. Commissioner Hatfield moved approval of the Consent Agenda items with the exception of Item 2. Commissioner Roy seconded the motion. Motion passed unanimously. RESOLUTION APPROVING A TEMPORARY COMMERCIAL USE/SPECIAL EVENT PERMIT FOR SLEIGH RIDES AT ST. BENEDICTS MONASTERY~ MID-DECEMBER~ 2004 THROUGH MARCH~ 2005 - MOTION TO APPROVE - STAFF PLANNER: SUZANNE WOLFF Suzanne Wolff explained that the resolution specifies that there would be one sleigh ride per day and the applicant has requested if he could have flexibility with that to have two rides per day, if he still meets the other criteria. It was the consensus of commission members that this amendment could be granted. Commissioner Clapper requested a condition that all trash will be removed. Commissioner Clapper moved approval of the Resolution as amended. Commissioner Hatfield seconded the motion. Motion passed unanimously. LAND USE ACTIONS: RESOLUTION GRANTING APPROVAL TO THE ASHCROFT SKI TOURINR AREA AF-SKI MASTER PLAN AMENDMENT REGARDING SPECIAl EVENTS AND WINTER SEATINGS - MOTION TO APPROVE - STAFF PLANNER: SUZANNE WOLFF BOARD OF COUNTY COMMISSIONERS 7 REGULAR MEETING DECEMBER 15, 2004 Suzanne Wolff gave a presentation on this application as contained in her memorandum to the Board contained in the BOCC packet for this meeting. Chairperson Farris opened the hearing to public comment. John Wilcox stated that he still believes that under the original resolution that the seating capacity is dealt with in paragraph 21 and it is very clear that it says the seating capacity is 7'5 people at any one time and doesn't delineate winter or summer. He said in the wintertime, if any more than 75 people are in the restaurant at any one time that would be a special event. He said he would also agree to bus people if there were more than 75 people, to alleviate any additional traffic on the road. With respect to the photo submitted showing cars along the road during the Thanksgiving week, he said they could be those of simply skiers and other recreationists not necessarily visitors to the restaurant. He urged the board to approve flexibility in arrival times and said they would like flexibility during peak seasons to have two seatings, and reiterated that they feel that flexibility is in condition no. 21 of the original resolution. A copy of his written comments is included in staff's memorandum included in the BOCC packet for this meeting. Mr. Wilcox also submitted his written comments responding to Lynn Mace's concerns about the traffic. Copies of Ms. Mace's letter and Mr. Wilcox's response are attached to the end of the BOCC packet for this meeting, under additional exhibits. A discussion ensued with respect to what would be an appropriate seating capacity. Lynn Mace voiced opposition to the board approving a doubling of the capacity of the cookhouse. She presented a picture showing the overflow parking in the area over Thanksgiving. A copy of this photo is attached to the end of the BOCC packet for this meeting, under additional exhibits. Commissioner Clapper moved to allow the operation of the restaurant to proceed, as conditioned by staff in the resolution, with a review in a timely manner, including an annual report at the end of the winter so the impacts could be assessed. Commissioner Hatfleld seconded the motion. Motion passed unanimously. NATHANIEL BATES 1041 HAZARD REVIEW AND CONCEPTUAl SUBMISSION TAKINGS DETERMINATION - MOTION TO APPROVE UNDER THE ANOMALY CLAUSE WITH DIRECTION TO STAFF TO PREPARE A RESOLUTION TO BE BROUGHT BACK ON JANUARY 12, 2005 - STAFF PLANNER: EZRA LOUTHIS Ezra Louthis gave a presentation on this item as summarized in his memorandum contained in the BOCC packet for this meeting. BOARD OF COUNTY COMMISSIONERS 8 REGULAR MEETING DECEMBER 15, 2004 Alan Richman gave the applicant's presentation on this application as summarized in his letter contained in the BOCC packet for this meeting. Commissioner Roy moved to grant the takings and ask staff to prepare a resolution of mitigation for the 1041. Commissioner Clapper seconded the motion. After a discussion with respect to whether or not there is a takings, with an opinion by John Ely that the matter does not fall under the takings criteria (depriving the owner of all reasonable economic use of his property) Commissioner Roy withdrew her motion. Commissioner Clapper withdrew her second. Commissioner Roy moved to approve this application under the anomaly clause in the land use code with direction to staff to prepare a resolution. Commissioner Clapper seconded the motion. Motion passed unanimously. TIMROTH LLLP 1041 HAZARD REVIEW AND CONCEPTUAL SUBMISSION - TAKINGS DETERMINATION - MOTION TO FIND A TAKINGS- STAFF PLANNER: SUZANNE WOLFF Suzanne Wolff gave a presentation on this application as summarized in her memorandum contained in the BOCC packet for this meeting. Mitch Haas gave the applicant's presentation on this matter. A copy of his written presentation is contained in the BOCC packet for this meeting, under additional exhibits. A discussion ensued with respect to whether or not this application should fall under the takings criteria. Commissioner Hatfield moved to go into executive session at 5:25 PM. pursuant to CRS 24-6-402 4(b). Commissioner Roy seconded the motion. Motion passed unanimously. Chairperson Farris re-convened the regular meeting at 5:40 PM. Commissioner Clapper moved a finding that a takings has occurred with direction to staff to come back with an appropriate resolution limiting the size of the house to 8,240 square feet with the building envelope as presented. Commissioner Hatfield seconded the motion. Motion passed unanimously. SECOND READING - ORDINANCE REZONING A PORTION OF THF CRYSTAL ISLAND RANCH FROM RES-301PUD TO RURAL/REMOTE (RR) - MOTION TO APPROVE - STAFF PLANNER: SUZANNE WOLFF BOARD OF COUNTY COMMISSIONERS 9 REGULAR MEETING DECEMBER 15, 2004 SECOND READING - RESOLUTION APPROVING THE CRYSTAL ISLAND RANCH SUBDIVlSlONIPUD DETAILED SUBMISSION - MOTION TO APPROVE - STAFF PLANNER: SUZANNE WOLFF Suzanne Wolff proceeded with a presentation on the remaining issues associated with the application. The following decisions were made with respect to each issue: · To accept the housing mitigation proposal as presented in staff's memorandum. · To vest Lots 6W, 7W and 2E for the 20 year vesting period · To support the barn square footage caps proposed by the applicant · To support the barn height as proposed by the applicant · To support the proposal to vest the TDR square footage values for use on-site. If they are used off site they would be subject to whatever the rule is at the time. · To support the applicant's paired lot alternative for development of certain lots · For the paired lots on the West Parcel support locating a barn within either building envelope. · That the applicant must have water prior to any development on the west parcel · That the applicant work jointly with all parties with respect to parking on Prince Creek Road · That Tract 7 be subject to all of the same requirements as the other residential lots. · To vest the GMQS approvals for Lots 8W and 1E in the Crystal Island Ranch PUD for the vesting period approved by the BOCC. Staff was asked to bring this matter back under the appropriate process. · A condition stating that the rezoning will take effect upon approval and recordation of the Crystal Island Ranch Final Plat. Commissioner Hatfield moved approval of the resolution approving the Crystal Island Ranch application. Commissioner Roy seconded the motion. Motion passed unanimously. Commissioner Hat'field moved approval of the rezoning Ordinance. Commissioner Roy seconded the motion. Motion passed unanimously. RESOLUTION DENYING AN APPEAL BY TERRY TAYLOR OF THF ISSUANCE OF AN ACCESS PERMIT FOR THE LITTLE CLOUD SUBDIVISION - MOTION TO - STAFF PLANNER: LANCE CLARKE~ ASSISTANT PLANNING DIRECTOR BOARD OF COUNTY COMMISSIONERS 10 REGULAR MEETING DECEMBER 15, 2004 Lance Clarke gave a presentation on this matter as summarized in his memorandum contained in the BOCC packet for this meeting. Mr. Clarke said since the resolution was drafted, Mr. Ferguson mailed a proposed resolution approving the appeal. Curt Sanders wrote a letter to the board urging that that not be allowed to be placed in the record. Also, Matt Ferguson prepared a letter critiquing the letter staff had prepared and Curt Sanders followed with a letter to the board urging that that not be part of the record. He said he has all of the documents with him tonight and he would like direction from the Board whether or not to submit them into the record. John Ely, County Attorney, said he has an e-mail from Matt Ferguson dated December 11th and December 14th with a request that those two items be included in the record. Additionally, he said he has an e-mail from Curt Sanders dated December 13th and a follow up letter dated December 15th objecting to the inclusion of those items into the record. He said the proposed resolution that has been offered, in support of the appeal, is not an addition to the record, but it is something that the board might want to consider as a framework for discussion. Chairperson Farris stated that the board said, following the last meeting, that that was the final submission of material. Ely advised the board that they should determine the status of the record first to either allow the material or not. It was the consensus of commission members that no further material shall be accepted to the record. Commissioner Clapper disclosed that she received from Craig Ward, from the City Open Space and Trails, an e-mail, which she forwarded on to John Ely because of legal concerns. She said the e-mail was about an offer made on the purchase of these properties and has nothing to do with this appeal process. Commissioner Clapper moved to approve the resolution denying the appeal. Commissioner Farris seconded the motion. Mathew Ferguson, representing Terry Taylor, said following the November 23rd meeting, at which Mr. Ireland made a three point presentation for the resolution that we are here before today, he asked the county attorney permission to submit a resolution that he thought was supported by the record granting their appeal, and that was submitted before he got the packet from Lance Clarke, which was delivered Friday afternoon and which he saw on Saturday. Mr. Ferguson said Commissioner Ireland directed the staff to file a resolution denying the appeal that supported their recommendation of denial. He said he and Mr. Ireland listened to the tape several times yesterday, with some of his BOARD OF COUNTY COMMISSIONERS 1'1 REGULAR MEETING DECEMBER '15, 2004 partners, and he told them that they need to tell the board what their position is. He said his concern with the resolution is that the actual findings are totally unsupported, for example to say this house has structural mitigation for avalanche is absolutely contrary to the record. The language says that they have complied with Resolution 019.2004 that says they must protect users of this road, however, he is saying that they have not done and that they have protected no users of this road. They have also added, what he says, are remarks that are unnecessary and unsupported by the record. He said there is a statement in there that says, "There is nothing to suspect that anything untoward was done in 1990 by the applicant" and that has not been before this board. He explained that there is now a lawsuit pending by Taylor against Lewis and Tucker and those are findings for a jury to make. Therefore, he came back yesterday, with a detailed rebuttal and view of what is wrong with the proposed resolution. He thinks at a minimum that should be reviewed via the resolution. He urged the Board that if they are going to vote to deny the appeal to vote for it for the right reasons. To the extent that he needs to, he would object to not including his material. He said he has not presented any new information that he received permission from the county attorney to submit a counter-proposed resolution and he has submitted only a document, which says what he thinks is wrong with four or five paragraphs in the resolution. John Ely, County Attorney, stated that Matt did ask him about preparing an alternative motion and he said certainly that is fine, but the e-mails going back and forth from Matt and Kurt are separate before the Board and it has decided not to include those in the record. Commissioner Ireland said he thinks Matt should have the ability to challenge the findings. He said Matt did make the statement that he directed staff to draft a resolution and he does not direct staff. He said he has no more ability to direct staff than he does. He wanted a resolution so that we can consider the issue in some framework. He does not have any problem looking at a presentation, but he thinks the important point is that the board needs to discuss some of these points and finding of the fact. He referred to recital no. 7 of the Resolution, which says, "The Taylor home was built with structural mitigation for avalanche protection. He said he thinks it would be a correct statement to say, "According to the Lampiris report, the house was built with the thickness of stem wall that could provide mitigation for avalanche protection." Matt Ferguson said he does not agree with the Lampiris report. He then referred to recital no. 8, which says, "It has not been demonstrated that there is any reason to suspect the subdivision approval was the result of misrepresentation on the part of the applicant. He read the board's findings, which says, "The evidence in the prior appeal conclusively demonstrates that portions of the Little Cloud Subdivision access driveway are within rock fall and avalanche hazards to a much greater extent than was known and represented". He said what this gets into, unnecessarily, is a state of mind of Tucker, Lampiris and Wayne Ethridge, BOARD OF COUNTY COMMISSIONERS 12 REGULAR MEETING DECEMBER 15, 2004 and a board seven boards ago. He said this issue does not belong here because it has not been tried. He said he has repeatedly said that the law here is you guys can revoke this thing if there has been a mistake made. He explained that he has alleged, in a power point presentation, that there were misrepresentations, but he does not think that this needs to go there, especially when they have a lawsuit for a judge and jury to find out about this, with discovery, with cross examination of what exactly happened 15 or 20 years ago. Commissioner Clapper told Mr. Ferguson that she clearly remembers him bringing up this point, at the last hearing about this issue, as one his points of concern so she thinks it is more than appropriate to keep it in here. Mr. Ferguson said he does not think the board has decided what happened 15 years ago; he does not think it has gone to that point, and in fact, he has repeatedly said, "Yes you don't need to go there." John Ely said the board does not need to make recital no. 8 a finding, but rather the finding that it needs to make is totally dependent upon its determination of the facts and resolution of the issue. If the board does not want to make this finding then it should delete it. Commissioner Clapper referred to recital no. 7. She said it was clearly stated that it was unknown, as far as any avalanche protection that was built into the house that exists now, so she would rather just delete that first sentence in number 7 and change it to state "There is no reason to believe that additional and/or appropriate protection can be provided on the Taylor property." Lance Clarke clarified that the Taylor home was built with structural mitigation as recommended by Lampiris and that staff did go back and check the house plans. It was agreed that the language should state this. Commissioner Hat-field said he thinks recital no. 8 should not be in the resolution. He said Matt, in his initial presentation and throughout the proceedings, mentioned this several times and we did not follow up on it or something we didn't really consider. He thinks it is a statement that is wrongly placed and not necessary if the majority of this board votes to deny the appeal. Curt Sanders, representing Tom Lewis, said he would encourage everyone to stick with the ground rules that we adopted. He said he received a letter from Lance Clarke and John Ely that clearly had how this process was going to work laid out, and he thinks the board did a good job obtaining the process and got a lot more done at the last hearing because of that. And to receive an e-mail at 4:55 yesterday afternoon, which amounts to a re-argument of this case, he does not think that should be in the record. He said he wants to emphasize that he thinks the board should stick to the ground rules. He said on the whole, he does not disagree with the form of the draft resolution. He said he didn't submit a BOARD OF COUNTY COMMISSIONERS 13 REGULAR MEETING DECEMBER 15, 2004 draft resolution because he was not aware that they could do that and was not aware that Mr. Ferguson had a conversation with John Ely and that John said that was okay to submit. So again, he was not in on that conversation or that it was even an option. He reiterated that he is fine with the resolution, as drafted. With respect to Item 8 he believes it is in there because there were allegations made, throughout this process that misrepresentations had been made all the way through the original approvals. And at some point, they became repeated enough that they started to have some links to them and that is all in the record. He said he does not think that it is inappropriate for the commissioners to make a finding that we don't conclude that misrepresentations did take place. So for what it's worth, he would say as drafted, he does not have a problem. After a discussion, it was the consensus of the majority of the board that recital no. 8 should be deleted from the resolution. Matt Ferguson stated that he disagrees with recital no. 9 because Lewis has done nothing to protect the road from avalanches because of site constraints. Kurt Sanders said he would submit that Mr. Lewis is in compliance with Resolution 019.2004, and he would request that recital no. 9 be left in the resolution as drafted. Commissioner Clapper amended her motion to delete Recital No. 8 and changing the wording in No. 7 to mirror the wording of Mr. Lampiris. Commissioner Ireland seconded the motion. Motion passed with three yea votes by Commissioners Ireland Clapper and Farris, with one nay vote by Commissioner Hatfield and one abstention by Commissioner Roy. Mr. Ferguson requested that the issuance of the permit be delayed for 30 days to allow them time to file their papers with the court. John Ely said there is nothing within our framework to allow this. Mr. Sanders said he thinks Mr. Lewis should be able to exercise his rights at this point. If Mr. Taylor wants to exercise his rights in court, there is a process for that through the courts. It was the consensus of commissioner members that a delay should not be granted. ADJOURNMENT: Commissioner Clapper moved to adjourn the meeting at 7:55 PM. Commissioner Ireland seconded the motion. Motion passed unanimously. BOARD OF COUNTY COMMISSIONERS 14 REGULAR MEETING DECEMBER t5, 2004  ,~,~t,~ctl:ully sub~ el~l,~.' nette Jones ~ ~rk to the Boar(l of County Commissioners Board of County Commissioners g\bocc\minutes\2004\12152004 BOARD OF COUNTY COMMISSIONERS '15 REGULAR MEETING DECEMBER 15,2004 /~