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HomeMy WebLinkAboutMinutes 01/10/2023 PUBLIC HEARING January 10, 2023 Present: Kathy Chandler-Henry Chairman Matt Scherr Commissioner Jeanne McQueeney Commissioner Jeff Shroll County Manager Matt Peterson Assistant County Attorney Kathy Scriver Deputy Clerk to the Board This being a scheduled Public Hearing,the following items were presented to the Board of County Commissioners for their consideration: Swearing-in Eagle County's Elected Officials Judge Dunkelman will be swearing-in Eagle County elected officials for another term. 1. Regina O'Brien,Eagle County Clerk&Recorder 2. Teak Simonton,Eagle County Treasurer 3. Kara Bettis,Eagle County Coroner 4. Kelly Miller,Eagle County Surveyor 5. Mark Chapin,Eagle County Assessor 6. James Van Beek, Eagle County Sheriff 7. Jeanne McQueeney-Eagle County Commissioner Constituent Input Chairman McQueeney opened and closed public input, as there was none. Commissioner Updates Commissioner Scherr stated that it was always inspiring that the swearing-in was part legal and ceremonial; it was emotional and moving to him. Commissioner Chandler-Henry mentioned the appointment resolution and the changing of chair. She took the opportunity to thank Chairman McQueeney for her amazing work as chair. Chairman McQueeney was a calm leader and always prepared. She always focused positively on the goal. Chairman McQueeney shared that last Friday she had an opportunity to go to Denver for a Colorado Department of Human Services legislative luncheon and Megan Burch was one of the speakers that day. She did a fabulous job telling the legislators about how they could support the role of Human Services. This was not a well funded arm of the state. Ms. Burch did a great job representing some of the challenges of the office. County Manager Updates Jeff stated that he had no updates. 1 01/10/2023 Consent Agenda 1. Resolution 2023-005 2023 Annual Appointments Resolution Dani Moore,Administration 2. Contract extension for investment advisory services from Public Trust Advisors Teak Simonton, Treasurer's Office Dani Moore,Eagle County Administrative Assistant, introduced the Annual Appointments Resolution and stated that the resolution outlined the appointments,both regional and statewide, and included internal staff appointments. Chairman McQueeney stated that the resolution, once approved,would be available online. The resolution helped the public understand some of the other work that the commissioners did in terms of meetings and committees they were appointed to and other work that was happening at both the state and national level. Commissioner Chandler-Henry had been appointed as the new Chairman of the Board of County Commissioners and Commissioner Scherr would be the Vice-Chair. Commissioner Scherr moved to approve the Consent Agenda for January 10, 2023 as presented. Commissioner Chandler-Henry seconded the motion. The vote was declared unanimous. The Commissioners did a change of seats and Commissioner Chandler-Henry was seated as Chair. Business Item 1. Resolution 2023-006 Adopting the Eagle County 2023 Legislative Policy Statement Abby Dallmann, County Manager's Office Executive Summary: This resolution adopts the 2023 Legislative Policy Statement, a document that identifies general legislative issues of interest to the county along with the county's policy principles on these issues. Eagle County officials and staff will utilize the 2023 Legislative Policy Statement as a guiding policy when reviewing and analyzing bills that may have an impact on the county's interests during the upcoming state and federal legislative sessions. Abby Dallmann, Eagle County Finance Risk Manager,touched briefly on the policy statement. Any resident, staff, or elected official that wished to have the board of County Commissioners take an official position on any legislation coming through either at the state or federal level could use the document as a reference point to see how the board would be weighing in on a topic. It did not represent all of the issues but provided a good idea for where the board stood on certain issues. The document would be available on the county website. Commissioner McQueeney moved to approve the resolution adopting the Eagle County 2023 Legislative Policy Statement. Commissioner Scherr seconded the motion. The vote was declared unanimous. Planning File - Mt Sopris Room 1. Central Rocky Mountain Permaculture Institute-CRMPI ZS-9170-2021 Special Use Permit Trent Hyatt, Community Development 2 01/10/2023 Executive Summary: Special Use Permit for a resort recreational facility, one home business, one home occupation, an accessory dwelling unit,and detached structures ("Application") submitted by Maya Ward-Karet ("Representative") on behalf of Jerome Osentowski("Applicant"and"Owner"). The board originally considered the above referenced application at a September 30,2022 special meeting. The meeting was continued to October 17, 2022,where public comment was also received. Consideration of the application was further continued to November 30,2022. At the November 30,2022 special meeting,the board continued consideration of the application to January 10,2023 at the request of the applicant. On December 8, 2022,the applicant provided staff with additional information related to discussions held at the October 17, 2022 special meeting. Attachment 1 includes revisions proposed by the applicant to various conditions previously recommended by staff. The attachment includes an operations plan(Exhibit A) for the board's consideration/discussion.Attachment 2 is a response to various comments/concerns raised by neighbors since the October 17, 2022 meeting(when public comment was closed)related to legal access and the use of Upper Cedar Drive. Please note, staff had reviewed various letters sent by neighbors and added them to the file but have not attached them since public comment on the application was closed at the October 17,2022 meeting. The third attachment is an opinion from the applicant's attorney related to said access. The fourth and last attachment is a letter regarding parking for the proposal at Basalt Elementary School. Chairman Chandler-Henry stated that on December 8th staff received some answers from the applicant to some of the questions raised by the board along with proposed revisions to the conditions and an operations plan requested by the board. Matt Peterson,Assistant Eagle County Attorney,provided an update on public comment. He stated that Colorado law required due process for anyone affected by a potential land application. Pertaining to this file, staff believed they had provided adequate notice through various means, including posting in the newspaper,mailing notices to all adjacent property owners, and signage posted on the property in advance of the original board hearing. At the October 17th hearing,the board opened public comment and received numerous public comments,both in favor and in opposition of the application. Public comment was closed and no additional public comment had been introduced into the record since the October 17th hearing. However,the board, in its discretion, may choose to re-open public comment if they wished. Trent Hyatt,Eagle County Community Development Deputy Director, stated that included in the board's packet were some responses that were received from the applicant to questions the board had in prior deliberations. At this time staff had nothing to add to the record. The applicant had a presentation they wished to share to provide additional information on the added attachments to the packet. Maya Ward-Karet, owner of Earthbound Architecture, spoke as a representative for Jerome Osentowski, owner of the property. She acknowledged some additional letters of concern submitted by some adjacent property owners between the last hearing and this hearing. Mr. Osentowski provided a response to all the concerns raised in those letters from Janet Lightfoot and Sara Berry. The applicant hired an attorney,James Knowlton,to assist in addressing the access roads and emergency egress routes. Mr. Knowlton came to the determination that there were no restrictions on the use of Cedar Drive and Basalt Mountain Road and the established uses of Central Rocky Mountain Permaculture Institute-CRMPI which had been going on for many years did provide precedent for a special use permit to be approved. Staff recommended 16 conditions. Of those 16,the applicant was in complete agreement with 13. The applicant was requesting that condition#11 be revised, conditions#12 and#15 be removed, and conditions#18 and#19 be added. Condition#18 addressed the concerns raised by the commissioners as well as some of the public comment. The purpose would allow the county to enforce everything in the application and operations plan(exhibit A). The proposed that the CRMPI board of directors be required to provide an annual report to the Eagle County Community Development Department to insure that operations on the property were continuing as they were expected to per the special use permit. Condition#19 would insure that everything said could be enforced. Commissioner McQueeney asked staff to evaluate the removal of#15 with regards to the variation to the trail standards. 3 01/10/2023 Julie Pranger, Eagle County Staff Engineer, stated that condition#15 was due to the fact that the application with the variation still did not meet the US Forest Service trail standards.As such, staff did not support deletion of the condition. Ms. Ward-Karet stated that their understanding was that if their variance was approved,the trail would meet the standards. Chairman Chandler-Henry asked staff to respond. Ms. Pranger stated that the path would be used by emergency service providers and people not familiar with this type of terrain. Staff believed the trail should be redesigned. Commissioner McQueeney asked about the applicant's operating plan. Ms. Ward-Karet believed that the plan provided accountability and addressed everything that was contentious throughout the hearing process. Commissioner Scherr asked Mr. Peterson to weigh in on the applicant's proposed condition#19. Mr. Peterson believed that it was a different circumstance than a typical land use approval and the Land Use Regulations contemplated the uniqueness of a Special Use Permit. There was a specific provision that allowed the board to impose conditions that tied a certain special use to a property owner or an individual. Commissioner Scherr asked about the legal access. Mr. Hyatt stated that staff had some concerns related to legal access which was raised after public comment was closed. Ms. Pranger stated that staff did not support any use of Basalt Mountain Road for this use. Upper Cedar Drive was the subject of a Variance from Improvement Standards(VIS)applied for by the greater community in the 2010s. Substantial improvements had been made to the road,however the road still didn't meet the county road standards. For this application staff relied on the prior approval of the VIS,but after staff investigated a bit further, they did not believe that there was evidence that there were full legal access easements in place for all properties for Upper Cedar Drive. Staff's current position was that there was no evidence that there was full legal access to the property at all regardless of the uses. Staff would require recorded easements that outlined the legal width of the easement and the exact orientation of the easement through a property. Mr. Knowlton, attorney for the applicant,responded. He did not believe the board could require legal access if the code did not require legal access or proof of legal access. If the board denied the Special Use Permit because there was no legal access,the board was, in effect,making a determination that there had to be legal access. The code simply required usable ingress and egress. Commissioner McQueeney asked if there was a recorded private agreement. Ms. Ward-Karet stated that there was already an agreement in place with the Cedar Drive Road Association and the VIS-4422. Mr. Peterson believed that the road users agreement in conjunction with the VIS issued in 2014 was a private agreement and the applicant was a party to the agreement. However, in reviewing the agreement,he did not view the agreement as establishing legal access. Accompanied with an agreement such as this,the parties to the agreement would exchange written easements or recorded easements with one another granting each other reciprocal access. To his knowledge this had not occurred. It was within the board's purview to give meaning to the code when applying the code to land use applications. The standards required that the proposed special use shall comply with appropriate standards in Article 4,which were site development standards and where the proof of access came from. Access under the code must be usable, and he would maintain that usable access implied by definition, legal access. Chairman Chandler-Henry stated that the applicant had been using the road for many years. She asked if the county was in a position to declare it a prescriptive easement. Mr. Peterson stated that the county did not have that authority under Colorado law. This would have to be a determination made by the District Court due to the various elements in play. Access had been an issue both with quality and potential legal access. It was not for the board to weigh in on whether legal access had been proven or not without a recorded easement. Chairman Chandler-Henry asked if the applicant had ever sought to gain an easement from the other users on Cedar Drive or get a prescriptive easement through the court. 4 01/10/2023 Ms.Ward-Karet stated that the applicant was not aware that he needed to do any such thing because Cedar Drive had been approved as access for all of the lots in the area. Mr.Osentowski stated that he had a 30 ft access from Upper Cedar Drive down to the neighboring property; it was on his deed. Ms.Ward-Karet stated that it was only recently that the applicant needed to prove that Cedar Drive had legal access to the property. They were made aware that that the road was substandard access,but this was the first time they were made aware that there may be a legal access concern. Mr. Osentowski believed the question should have been brought up during the process he had to go through for the subdivision exemption process. The plat was approved without any question with regard to access. Ms. Pranger stated that there was a subdivision exemption in about 2020. It was assumed that the VIS part of that had established legal access. The VIS was a variance from physical road improvement standards, and after review of the VIS staff report and materials provided, it did not appear that legal access had been a topic of conversation throughout the many files. She believed that there were assumptions made and perhaps different questions should have been asked. At this time they had not seen the evidence. She believed the applicant was referencing his private driveway. Mr. Peterson added that when reviewing a land use application,the burden of proof to meet standards was always with the applicant. Commissioner Scherr asked staff's thoughts on the porta potty deliveries from Basalt Mountain Road. Ms.Pranger stated that Basalt Mountain Road had never been evaluated by the county. Her guess from having driven the road was there were deficiencies which included, lane width, grade,radius,road surface, and lack of emergency vehicle turnaround areas. In general, it was extremely narrow and areas where one vehicle could barely make it with sheer drop offs and no guard rails. Staff could not support it from a life safety perspective. Mr. Osentowski stated that the road had been used for larger vehicles, such as propane trucks, septic service trucks, and all kinds of gravel trucks. The truck that would service the porta potty was a smaller truck. Chairman Chandler-Henry asked about the access on Cedar Drive and if it was a typical problem for properties in the area or lack of easements specific to this property. Ms.Pranger stated that staff had not done a lot by lot investigation but based on the research that had been performed so far, it appears to apply to many properties in the Cedar Drive Community,not just Mr. Osentowski. Ms. Ward-Karet added that there was a building permit issued for Mr. Osentowski's cabin addition as well as for the neighbors ADU. That said,there had been development on the road with no standard requiring them to prove that the road had recorded easements. Commissioner McQueeney moved to go into Executive Session for the purpose of receiving legal advice regarding the CRMPI Special Use Permit application which was an appropriate topic for discussion pursuant to C.R.S. 24-6-402(4)(b) and(e). Commissioner Scherr seconded. Chairman Chandler-Henry stated that the board had adjourned from Executive Session and would re-open public comment to accept any new information regarding legal access. Public comment on any of the other topics that had already been discussed would not be allowed. Janet Lightfoot of 1500 Cedar Dr., spoke. She stated that she had a prescriptive easement on her Warranty Deed. She believed the easement was for rural residential use only and for deliveries for residents. John Katzenberger,resident of 2900 Cedar Drive spoke. He'd lived in his home since 1979. He stated that there were buildings beyond Mr. Osentowski's home and wondered if the easement requirement would impact all the owners. Jana Bouchard, 1921 Cedar Dr.resident spoke. She stated that the road was private. The road was not for public use or commercial use. Chairman Chandler-Henry closed public comment. Ms. Ward-Karet stated that the applicant understood the concerns raised and this was specifically the reason Mr. Osentowski hired Mr. Knowlton to review the access agreements,the road association documents,the VIS, and Colorado law. In his analysis,he did not find any restriction to what type of uses that could be used on the road. 5 01/10/2023 He pointed out that Mr. Osentowski had been using the road for more than 18 years for the same use that he was proposing in the Special Use Permit application. He believed there was an appropriate basis for the predictive easement to apply to the CRMPI uses as well. Mr. Knowlton added that the board was making a determination of legal access and it was not in the code so the board was going down a wormhole that was not appropriate. There was access and an easement. Colorado law did not require legal access. Only usable access was required. Chairman Chandler-Henry asked if the prescriptive easement was specific to each property owner on the road. Mr. Knowlton stated that a prescriptive easement was a use acquired after 18 years and subject to a natural evolution of use. Mr. Osentowski had used the road for access for his commercial educational purposes within the scope of a prescriptive easement. It was a burden on the applicant to get legal access as the applicant already had usable access which was what the code required. Ms. Pranger believed that people were speaking about a hypothetical prescriptive easement that could potentially be obtained. Staff had not seen a court order or court decree stating that there was a prescriptive easement. Ms. Ward-Karet stated that there were full civil drawings of the entire length of lower and upper Cedar Drive as part of the VIS-4422. They were on file with the county showing where there were easements. Ms. Pranger stated that upon review of the VIS-4422,there were site plans provided, but she did not recall seeing legal evidence of an easement on the property on those site plans. • Mr. Peterson stated that each parcel would have to be analyzed individually. This could be a problem for other properties as well because staff was now aware that there was a section of road that may not have an easement conveyed. What the county had done in the past was not relevant to this determination with the information raised to the board now. It would be up to a court to define the use of the easement if a prescriptive easement. The code defines access as usable access. His argument would be that if one would have to trespass on a private road or driveway to access a property, that was not usable. Without a prescriptive easement in place, an adjacent property owner could restrict access. Commissioner Scherr stated that he concurred with staff findings and was comfortable with the staff's proposed conditions. With regards to conditions#18 and 19,he did not support those conditions proposed by the applicant. As far as access, since legal access could not be confirmed he was unclear as to whether he could approve the application. Commissioner McQueeney stated that she did not think Basalt Mountain Road should be used. She could get comfortable with the pedestrian footpath and believed that the access issue could be worked out. She did not support allowing the special use permit to run with Mr. Osentowski. She believed that Mr. Osentowski ran a fabulous program but it was contained within his knowledge of what he wanted to do. To her access and legal access were the same thing. She believed the property owners could get together and work this out in terms of sharing the road. This application came to the board as a complaint, and they were trying their best to find a way to make this work. She believed approving the application could address concerns and make the neighborhood safer. Chairman Chandler-Henry believed this was a difficult file but the board was trying their best to support this type of use. The board had to follow the standards to approve a special use permit. The application received a recommendation of denial from both staff and the Roaring Fork Planning Commission. She was stuck on Standard no. 6,Impact of Public Facilities,that had to do with the road and access. The board had no supportive documents of legal access for this road. She supported staff's recommended conditions 11 and 12 and she could become comfortable with the operations plan especially if it were a little more specific with the details. Road access was the stopping point for her. She did not see how she could vote in favor because of this issue. Commissioner McQueeney believed there were a lot of ways forward. There were good reasons for the neighborhood to come together and approve this. She saw this as such a missed opportunity to continue a great asset for the wider community. Mr. Peterson stated that if the board were to vote to deny the application, following the resolution,the applicant would have to wait a year to resubmit another application.. The applicant could also choose to withdraw their application at any time. If they chose to withdraw, they could submit an application at any time. He believed a tabling of the application may be problematic, and he did not recommend it. 6 01/10/2023 Ms. Ward-Karet stated that the applicant wished to request to table for five months. Mr. Peterson stated that there was a provision that provided that dormant applications without sufficient or substantive response by the applicant were deemed withdrawn. He believed 90 days was the safest considering the provision. Commissioner Scherr moved to table the file ZS 009170-2021 to April 4th, 2023 to gather additional information necessary for a determination. Commissioner McQueeney seconded the motion. The vote was unanimous. 061.E co 51 There being no further bus'` •- - J- oard,the meeting was adjourned until January 24, 2023. • �c`�aP o -24f/44( Attest: ��►� 9rk to the Board Chairman 7 01/10/2023