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HomeMy WebLinkAboutMinutes 10/08/96
BOARD OF COUNTY COMMISSIONERS
EAGLE, COLORADO
RECORD OF PROCEEDINGS
FORM 50 HOECKEL'S 387869
PUBLIC HEARING
OCTOBER 8, 1996
Present: George "Bud' Gates
Johnnette Phillips
James Johnson, Jr.
Jim Hartmann
Sara J. Fisher
Chairman
Commissioner
Commissioner
County Administrator
Clerk to the Board
This being a scheduled Public Hearing the following items were presented
to the Local Liquor Licensing Authority for their consideration:
Stop & Save
Earlene Roach, Liquor Inspector, presented a change in corporate
structure for SM Petroleum Properties, Inc., dba/Stop & Save. She stated
this change reflects Cynthia Frieling resigning and Kent Frieling as the new
treasurer. All documentation is in order and the appropriate fees have been
paid. Mr. Frieling is reported to be of good moral character. Staff
recommended approval.
Kent Frieling was present for the hearing.
Chairman Gates asked about the location of this facility.
Ms. Roach responded the store is in Edwards.
Commissioner Johnson moved to approve the change in corporate structure
for SM Petroleum Properties, Inc., dba/Stop & Save, adding Kent Frieling as
the new treasurer.
Commissioner Phillips seconded the motion. The vote was declared
unanimous.
Commissioner Phillips moved to adjourn as
Authority and reconvene as the Board of County
Commissioner Johnson seconded the motion.
unanimous.
the Local Liquor Licensing
Commissioners.
The vote was declared
Plat & Resolution Signing
Ms. Eastley was present for the hearing but there were no plats or
resolutions to present to the Board.
Red Dirt Creek Road
Chairman Gates stated the object of this work session today is to
discuss Red Dirt Creek Road. He introduced Mary Jo Berenato, Deputy County
Attorney, who stated the Board has been approached by many members regarding
the improvement of Red Dirt Creek Road and whether it is in fact a County
road. Ms. Berenato stated Mr. Nottingham has contested the improvements.
Chairman Gates stated a sheet is being passed out for those who would
like to speak to sign in.
Ms. Berenato stated there is a video that was taken a few days ago which
starts up above the Forest Service line and goes to the Colorado River Road.
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Chairman Gates asked the video be viewed.
Patty Haefeli, planner, explained the video to those present. She
pointed out the homestead that is still in existence and they started the
video there. Ms. Haefeli stated this is an active road that is used by
residents, hunters, hikers. She pointed out the remains of one of the
sawmills. It was not just a residential use but also a commercial use.
Commissioner Johnson asked if it was used for access to the jobs.
Ms. Haefeli stated there were five sawmills and they did use the road to
get to and from those jobs. She further explained the video showing the
needs for repair. She pointed out spots where the road is very close to the
edge and where there is more erosion. She stated the road is angling away
from the mountain and can therefore be very dangerous. She pointed out where
Paul Johnston is building his home. She pointed out another residence being
built by the Ransdells. She stated again the proximity of the road to the
slope makes it very difficult. She stated the road is not so bad in the
summer but in the winter or when wet it can make for some dangerous
conditions. She pointed out the area by the entrance to Red Dirt Road and
where it slopes towards the river and makes for dangerous passage. She
pointed out the area where the County started to back fill and the need to do
so to protect the Colorado River. The tape ended at the Colorado River Road.
Chairman Gates stated the question is whether the road can be improved
and should the County being doing the improvements.
Ms. Haefeli stated they have looked at this for a couple of years
because the road is not safe. This is what started the contention.
Ms. Haefeli continued and passed out information to the Board and Mr.
Nottingham. She explained the packet has some historical information
regarding Red Dirt Road and Poison Creek Road. She stated it is of
historical opinion that Red Creek Road is part of the original Burns roadway.
She pointed out on a map the location where it crosses the Colorado River
Road.
Chairman Gates asked if the road had ever been abandoned.
Ms. Haefeli responded no. She then referred to a 1929 map showing Red
Dirt Road. In 1936 a map was produced which shows Red Dirt Road as a bladed
road.
Will Henderson, Engineering Technician, showed that map and explained it
to the Board. He stated they can see Trail Gulch as the main road to Burns
and Sweetwater. Red Dirt Creek is shown as a bladed road and is listed in
the legend. At that time the Colorado River Road was not bladed.
Ms. Haefeli continued with the next item, a 1943 deed which speaks of a
private road that runs along the ditch. There is further documentation in
1953 submitted to the state which shows Red Dirt Creek as a yellow road which
means it is open and used but not maintained by the County. Letters were
exchanged and a Resolution was adopted on September 14,1953 showing the roads
maintained by the County. A fifth item is a citation issued to Mr.
Nottingham for closing the road to public access. Item 6 is a letter from
the state to Mr. Nottingham showing it to be a County Road. Other
documentation includes letters from Don Fessler and Bob Loeffler. The final
letter is from James Fritze stating it is a County road to be maintained by
the County.
Ms. Haefeli stated in packet two there are photographs from the Schultz'
family. In 1909 or so there was an article written about the homestead.
There are also homesteads shown up on Poison Creek and the sawmills in
operation during the 40's. She questions how a commercial operation could be
functioning on private roads. Ms. Haefeli reviewed the items in the second
packet. The first is an article in Outdoor Life from 1916. There are
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BOARD OF COUNTY COMMISSIONERS
EAGLE, COLORADO
RECORD OF PROCEEDINGS
FORM 50 HOECKEt:S 387869
pictures of the homestead at Red Dirt. Mr. Schultz is present today. Other
photos show the homestead, corrals, and hay storage. More pictures show the
homesteads and the first sawmill. The last sawmill was owned by the
Satterfields and run by Doc Cook. There are additional photos which show the
Albertsons and the Gates picnicking where the bridge was to be built. She
further explained the homesteads on Sugar Loaf hill. There are also pictures
of trucks being driven on the road in the late 50's and early 60's. She also
believes B & B logged out of the area at one point in time.
Chairman Gates asked if those are submitted as exhibits.
Ms. Haefeli responded yes.
Commissioner Johnson asked Don Fessler and Brad Higgins to go to the
mic. He asked about the improvements Mr. Fessler requested in his budget.
Mr. Fessler stated they did not budget specifically for Red Dirt Road.
They were asked to do minor clean up to keep the road in a safe condition.
It was decided, after this started, this might not be a public way. Mr.
Fessler stated in his opinion it is a public way. They have never had the
intent to improve the road to any standard. Their desire was to improve the
road for safety purposes and drainage only. This meeting is to iron out the
differences. The argument is not if it is a public road, but to what degree
should it be cleaned up and maintained. Mr. Fessler spoke to other roads
that are in similar or worse condition. They did not earmark monies
specifically for Red Dirt.
Commissioner Johnson asked Allen Black if taxes have been collected on
that road.
Allen Black, Eagle County Assessor, stated he cannot answer that at this
time.
Rick Poffenberger, representing some of the Poison Creek land owners,
asked Ms. Haefeli about the road along the ditch.
Ms. Haefeli stated it does run along Poison Creek. She stated one of
the reasons they have petitioned the County to make the road safe is because
a lot of the land runs through the BLM. The BLM has deferred if this is a
County road it is a county obligation.
Ms. Haefeli stated improvement is widening and sloping along the creek.
They do not want it improved for major traffic.
Chairman Gates asked about improvements up to the Forest Service access.
Ms. Haefeli stated the road is widely used by others. Improving it to
the Forest Service would be a viable option. People don't understand it is
private land.
Chairman Gates stated he would think the Forest Service, BLM and the
Division of Wildlife should be in conversation with the County. He stated he
is looking for intergovernmental agreement and financing.
Orris Albertson, area resident, stated he has interest in both roads.
He stated he is more interested in seeing work on Poison Creek and Red Creek.
They will be hauling cattle out of there. He stated the road is bad and so
rough you can't make time on it. It needs improvement. What work has been
done, he has done it. He stated there have been times the Forest Service has
paid him to repair it. He feels if they are County roads the County should
work on them.
Chairman Gates asked specifically what part.
Mr. Albertson stated the road isn't too bad when you get out on public
land. The Gypsum mine people did do a little work.
Commissioner Johnson asked Mr. Albertson about owning the land and
having made the maintenance. He asked during that time if the road has ever
3
been shut off as a private road.
Mr. Albertson stated Red Dirt Creek has been a public road as long as he
can remember and before there was a bridge. Mr. Albertson stated since 1920
it has been a public road. He stated the road up Poison Creek ends at his
land and that is where the public road ends. Mr. Albertson stated most of
the pictures in the video are on his land.
Ms. Berenato asked if other people maintained or used the road.
Mr. Albertson stated Red Dirt is used by hunters and a few up Poison
Creek but there isn't much hunting up there.
Chairman Gates clarified the maintenance meaning he had cleared it up
when needed.
Mr. Albertson stated if the road could be patched up through
Nottingham's, he can work with the BLM to get the upper part done.
Paul Johnston, area resident, stated he supports the statements about
the conditions of the road and that safety improvements are called for. He
asks the County to improve and maintain it.
Herman Schultz, area resident, stated he doesn't have much to say about
it but he was called over. Perhaps to do more work. He stated all his life
everyone has used it and he doesn't understand why it couldn't be kept up.
He asked if there was an obstacle there as to why or why not they don't do
it.
Chairman Gates explained they are trying to clarify if it is or is not a
public road.
Mr. Schultz stated in the 1980's the BLM and Forest Service got together
to show the road on their maps.
Ms. Berenato asked what Mr. Schultz used the road for.
Mr. Schultz stated he used to live up there but now he goes up for the
heck of it.
Ms. Berenato asked where he lived.
Mr. Schultz stated the cabin in the video showed where his folks lived.
He stated they moved out in the fall of 1928.
Commissioner Johnson asked Mr. Schultz about the access to the sawmills.
Mr. Schultz stated he recalls a sawmill run by Jim Phillips. There was
a lot of activity after that. He stated many of the families lived by the
river. He stated they used the road to bring their products down but it was
in better shape then. He stated he is kind of mad at the Forest Service for
not cleaning their trails. He asked why the BLM doesn't do their share.
Rick Poffenberger, representing the Schultz' family, stated their
interest is mostly on the Poison Creek Road. He spoke of Lewis Chase and the
property he owned. He stated some of the land now belongs to Mr. Nottingham.
He stated in the sequence of deeds there was also the Culter family who owned
some of what is now Mr. Nottingham's property. The Culters conveyed to the
Schultz the rights and easements. The only way to access the property was
through Poison Creek. The Schultz' have maintained a right of way which
follows the Red Dirt ditch. Through the sequence there was clearly a right
of way established. There were two deeds that did not mention the right of
ways. Mr. Poffenberger further explained the right of way and the deeds
conveyed. When Mr. Stevens sold to Mr. Grunell the right of way was not
listed. When Mr. Grunell sold to Mr. Nottingham, he showed the exceptions.
Mr. Nottingham made an exception to his deed when conveyed to his trust.
Mr. Poffenberger stated without the easement, his clients land is
landlocked. This has been a traditional access to these points of land. In
recent years they have wanted to upgrade the road and Mr. Schultz was willing
to do so himself. He stated at least for Poison Creek road there is a right
of way for the Schultz. Mr. Poffenberger stated in 1912 there was road that
4
BOARD OF COUNTY COMMISSIONERS
EAGLE, COLORADO
RECORD OF PROCEEDINGS
FORM 50 HOECKEL:S 387869
lined into the Gypsum/Burns highway. He further explained his findings. His
reason for being here today is that Poison Creek Road is a public road and
the Schultz's have a right of way. Mr. Schultz was born there and Mr. James
has worked and been on the roads all of this life. In 1988 or 1989 there was
an attempt to block the road but the BLM and Forest Service stopped that.
The Schultz family have clearly used the road since 1920.
Commissioner Johnson asked what type of law he practices.
Mr. Poffenberger responded general.
Commissioner Johnson asked about the zoning and
Mr. Poffenberger stated the grant and the right
to the Schultz's.
Commissioner Johnson asked about the right of way and easement going
away.
Mr. Poffenberger stated the omission does not necessarily mean that it
doesn't still exist. It is based on the use of the road. Once it is
established, it depends on the use. He stated the video shows the roads are
used frequently.
Bill Ransdell, owner of 41 and a half acres up Red Dirt Creek, stated he
would like to say that if the County finds they have a right to do this work
as described by Mr. Fessler, he would be in favor of it and be on the record
for saying so.
Ms. Berenato
Mr. Ransdell
Ms. Berenato
right of ways.
of way clearly shows it
asked when the property
responded 1994.
asked if they got
was purchased.
title insurance with regards to the right
of way.
Mr. Ransdell responded yes.
Rick Johnson, representing the Nottingham Ranch Company, stated their
objective is not to block access but to protect property rights. He became a
part of this when the County showed up to do work on the road that goes
through their ranch. He stated a phone call or letter beforehand would have
been helpful. As they understand, the County shows no ownership of the road.
It is their understanding the map was prepared and submitted to the State of
Colorado for funding and maintenance. It is their position the County can
not convert a road just by doing so. The County has not taken possession of
the road. Access rights are described by prescriptive use. To use for
historic purposes is acceptable but only if the historic condition can be
maintained. With respect to the residential homesteads if there are
prescriptive rights, they would be to the old homestead. If a title examiner
missed there was not access then they have a claim against their title
insurance company. Neither they or the County are finding right of way
through the ranch property. Regarding Poison creek, there may be a private
conveyance to the Schultz's. The Nottinghams are willing to work with the
County however, they are not happy with Road and Bridge coming into the
property without asking permission. For the record, he did question this
becoming a hearing instead of the scheduled work session.
Commissioner Johnson read a letter into the record from an individual
who lived up there and stated it was never a County road. Their position is
the road cannot be converted by a County map and the prescriptive rights are
limited by the uses made. He touched on the sawmills and the use of the
road. He hasn't heard anything today that says the sawmills were not
accessed through license with the predecessors of the Nottingham Ranch.
Commissioner Johnson asked about the prescriptive rights. He also asked
about the acceptance of the map in 1973 as well as the appropriate senate
5
bill. He stated that is what the fifth amendment is all
Chairman Gates asked about the millage on this road
Mr. Fessler disagreed.
Commissioner Johnson stated regarding taxes the road is not split out.
Don Fessler stated they have certain roads on their inventory that are
not used for funding through the highway user tax. Mr. Fessler stated Road
and Bridge showed up to do work at the intersection of Red Creek and Colorado
River Road, they did not go on to Nottingham's property.
Commissioner Johnson stated this is still a work session and not a
hearing and it is being recorded in case it needs to be reviewed.
Commissioner Johnson referred to a reference to Red Dirt Creek which
relies on a document from Palmer to Palmer which gives easement to Poison
Creek.
Ms. Berenato stated the County Attorney's office disagrees with
Commissioner Johnson.
Commissioner Johnson stated if you don't have a right of way or if that
right of way is not used, it converts back to the owners of the property.
Mr. Poffenberger stated in his reading last night, the right of way is like a
bundle of sticks and you may not have all of the sticks. There is a right of
use. Mr. Poffenberger referred to Commissioner Johnson's claim about the
sawmill owners being owners of the mills. He stated that is not the case and
the land goes back to Lewis Chase. Through the linage there, the James' were
not there nor were Satterfields. The point being, people other than the
predecessors to the Nottingham ranch had the right to use it. Questioning
hostility, it does not require guns and tough guys.
Chairman Gates asked about a trail which came down north of Porphyry
Mountain.
Albert Schultz explained that trail to him and the location of the
trail.
Rick Johnson
experienced a lot
creek.
Commissioner Johnson stated he takes issue with Ms. Berenato and her
response. He is aware of two letters from Bob Loeffler to the BLM and the
mapping procedure. He stated the letter from Mr. Fritze confirms no
dedication exists.
Mr. Poffenberger stated the mapping procedure
through the public notification process as well to
The work session was adjourned.
about.
being turned
In.
stated as a result of some of the development they have
of silting in the creek and has caused problems in the
was published and went
help establish right.
Resolution 96-137, Supplementary Budget
Allen Sartin, Finance Director, presented Resolution 96-137, adopting a
supplementary budget and appropriation of unanticipated revenues for fiscal
year 1996 and authorizing the transfer of budgeted and appropriated moneys
between various spending agencies.
Jim Fritze stated if the negotiations do not resolve anything the monies
will return to the original source. He explained the resolution to the Board
and stated negotiations are continuing with the FBO.
Mr. Sartin stated if the negotiations were to be terminated, they would
reverse this out as part of the final revised budget if done by Thanksgiving.
Chairman Gates asked if the date is stipulated.
Mr. Fritze stated a budget change is a budget change and the Board can
direct staff accordingly. Because of the ongoing expenditures with
litigation, if there is a settlement, the sooner the better.
6
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BOARD OF COUNTY COMMISSIONERS
EAGLE, COLORADO
RECORD OF PROCEEDINGS
FORM 50 HOECKEL'S 387869
Commissioner Phillips moved to approve Resolution 96-137, adopting a
supplementary budget and appropriation of unanticipated revenues.
Commissioner Johnson seconded the motion for discussion.
In discussion, Commissioner Johnson stated he will vote against this at
this time because the negotiations are proceeding they will not meet the
date. He believes they need to look at doing this next year.
Allen Sartin stated in the original budget they anticipated a 2.6
transfer from the general fund to the capital. He has reduced the transfer
from 2.6 to 1.6 to reflect this.
Commissioner Johnson stated by tying this money up the other capital
projects will not be completed.
Chairman Gates stated litigation is not without expense.
Commissioner Phillips stated this million dollars will be replaced, it
is not gone.
Mr. Sartin stated ECAD will be borrowing something less than the
purchase price and the County will have to fund the difference.
Mr. Fritze stated if an agreement comes about, all the issues will be
appropriate to consider.
Commissioner Phillips stated that is the whole idea with the ski season
and the busy season fast approaching. They will consider the options if it
becomes a reality.
Chairman Gates called for the question on the motion. Commissioners
Gates and Phillips voting yes and Commissioner Johnson voting no.
Commissioner Johnson moved to adjourn into an Executive Session.
Commissioner Phillips seconded the motion. The vote was declared
unanimous.
The Board returned from Executive Session from discussing litigation
strategy at the airport.
Resolution, Land Use Regulation Amendment - LUR-021-96
Kathy Eastley stated the next item on the agenda was a proposed
resolution, file number LUR-021-96, Eagle County Land Use Regulations
Amendment. She stated this was tabled previously. They have received a
letter from the applicant requesting this be continued to October 29, 1996.
Knight Planning is present and they are supporting the tabling.
Commissioner Johnson stated the applicant new this was being tabled to
today and understood it was being tabled to today's date as Chairman Gates
would not be present at another hearing.
Tom Boni, Knight Planning, stated he attended the last hearing and he
recommended this be tabled to the 29th. Mr. Boni stated he did not argue.
He wanted the 29th and still does. The special use permit will be heard at
the same time and he feels it would be more efficient and expedient. He
stated there is some substantive benefit to come before the Board at that
time. He sees this as a more efficient means of hearing this.
Commissioner Johnson asked why the applicant could not be here.
Mr. Boni stated one applicant is visiting his son back east and the
other is at a business meeting in California.
Chairman Gates asked about the notice.
Ms. Eastley stated tabling from today will require additional public
notice. Ms. Eastley stated NOVA Guides has two applications on for the 29th.
7
Commissioner Johnson asked how the planning commission can make an
application if the zoning has not been determined.
Ms. Eastley stated the planning commission recommended denial of the
application. Ms. Eastley further explained the land use amendment and the
special use permit application process. Ms. Eastley responded a site visit
is scheduled for next Wednesday.
Mr. Boni stated they made both applications at the same time and they
were both heard by the planning commission at the same time. Their desire
was to have these scheduled at the same time for the Board to hear.
Ms. Eastley stated these are two totally separate applications. Ms.
Eastley stated the land use amendment must be heard first.
Mr. Fritze stated this issue will effect many different zoning requests.
This is a land use regulation amendment which will apply to the County as a
whole.
Commissioner Johnson stated this is only the second time there has been
a request to amend the zoning. The first time was also by Knight Planning.
He questioned why the applicant feels the Board cannot deal with the land use
regulations without taking the zoning into consideration at the same time.
This is a change for all resource zones.
Mr. Boni stated in this instance they have a use covered under an
existing special use permit. This particular application was made in
conjunction with a particular proposed use. How it effects Eagle County as a
whole, and because it is an option under the existing special use, it becomes
a tool for Eagle County to use under specific circumstances. It doesn't
effect anyone else except by providing the opportunity to make application.
Commissioner Johnson stated this would be a special use inside a special
use for commercial retail sales.
Mr. Boni stated the desire is under a recreation special use permit,
this would allow the sale of recreational equipment.
Chairman Gates asked if there is an objection to tabling this to the
29th.
Commissioner Johnson stated he does have a problem with it as the
applicant was informed it was not necessary to consider both applications at
the same time.
Commissioner Phillips stated this is a customer asking to table this and
customer service means a lot. She stated the Board must hear the land use
regulations first.
Commissioner Phillips moved to table LUR-021-96 to October 29, 1996.
Commissioner Johnson seconded the motion for discussion.
In discussion, Commissioner Johnson stated he does object because it
could have been tabled appropriately the last time. He feels the applicant
did not give the Board the benefit of knowing his clients could not be here.
Mr. Boni responded saying there was no intention on his part to
circumvent the regulations. He apologized for the Board.
Chairman Gates called for the question on the motion. Commissioners
Gates and Phillips voting yes and Commissioner Johnson voting no.
There being no further business to be brought before the Board the
meeting was adjourned until October 14, 1996.
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Chairma
8