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HomeMy WebLinkAboutMinutes 07/13/04 Public Meeting July 13, 2004 Present Tom Stone AtIl Menconi Michael Gallagher Jack Ingstad Diane Mauriello Teak Simonton Chairman Commissioner Commissioner County Administrator County Attorney Clerk to the Board This being a scheduled Public Hearing, the following items were presented to the Board of County Commissioners for their consideration: Executive Session Chairman Stone stated the first matter before the board was an Executive Session. ContIIlissioner Gallagher moved that the board go into Executive Session for the purpose of receiving legal advice concerning negotiations with the Colorado River Water Conservation District concerning Eagle Park Reservoit Company Shares, concerning acquisition of water to serve the Tree Farri:1 property, concerning legal advise regarding the Open Space process, and to receive legal advice concerning the liquor license renewal hearings of Rancho Viejo, Inc. and the Wolcott Yacht Club, LLC. All are appropriate topics for discussion pursuant to C.R. S. 24-6-402( 4)(b). CommisSioner Menconi. seconded the motion. The vote was declared unanimous. ISSUE NO.1: Agreement concerning Eagle Park Reservoir Company Shares. Attached for your consideration is a revised Jdraft of the agreement between Eagle County and the Colorado River Water Conservation District for management of Eagle County's Eagle Park Reservoir Company shares. David Hallford will be present to discuss the matter. Provide direction as to whether additional revisions are necessary. With Board approval, this agreement will be sent to the River District for consideration during its July meeting. ATTORNEY RECOMMENDATION: Forward draft agreement to the River District for approval and signature. ATTACHMENT: Correspondence dated June 24,2004 from David Hallford and Qraft agreement. ACTION: ISSUENO. 2: Tree Farm Water. The attorney's office has been pursuing the acquisition of Robinson Ditch water from the U.S. Forest Service (USFS). In the course of that work, additional agreements and information have come to light. As a result, the attorney's office wishes to provide you with historical information and an update on the USFS position. In addition, we wish to update the Board concerning an agreement for water entered into between the Crown Mountain Park and Recreation District and Mid Valley Metropolitan District. Ultimately, this office is seeking direction as to the course of action you wish to pursue concerning water for the Tree Farm property. By way of historical background, Public Law 103-255 passed on May 19, 1994 and as a result of that legislation (and subsequent transfer from Pitkin County) Eagle County acquired the Mt. Sopris Tree Farm Property. Pursuant to the terms of that law, the United States conveyed to the County five wells and retained the irrigation ditch water rights. Eagle County has an obligation to assist with domestic water to the current Forest Service buildings through the wells. The law also requires Eagle County to make every effort, commensurate with the County's own needs to serve reasonable domestic uses of any new buildings which the USFS might construct in the future. 713/2004 1 In May, 2000, after acquiring the Tree Farm property, Eagle County entered into a pre-inclusion agreement with the Mid Valley Metropolitan District (MVMD). The purpose of that agreement was to establish a frame work for the inclusion process and future water and sewer service to the Tree Farm property. The pre- inclusion agreement contemplates connecting to the MVMD system in two phases. Phase I consisted of the administration building located on the eastern end of the property and Phase II is comprised of the remainder of the property. Paragraph 5 of the Pre-Inclusion Agreement requires that domestic water and sewer be provided to the property by MVMD and Paragraph 6 of that agreement addresses raw water irrigation. MVMD reserved the right to require a raw water irrigation system for the future development of Phase n in accordance with district rules and regulations. Any plans for a raw water irrigation system are to be approved by MVMD. The agreement also provided an opportunity for the COuhty to negotiate use of MVMD raw water irrigation supplies. Then in November, 2003, Eagle County leased 43.371 acres of Tree Farm property to the Crown Mountain Park and Recreation District. Section Five of that Agreement requires Eagle County to "provide irrigation water, to the extent of the amount that the County owns, for irrigation of the Leased Premises." Crown Mountain is responsible for doinestic water to the leased preIIlises. Crown Mountain has entered into a water rights leas'e dated May 18, 2004 with MVMD. Under that agreement Crown Mountain has leased 1 c.f.s. of Robinson Ditch water. Crown Mountain desires to hire Bill Lorah of Wright Water Engineering for engineering work associated with delivery of that I c.f.s through the Robinson Ditch. Crown Mountain has also expressed an interest in the wells and the fact that this leased water would serve as augmentation. On April 20, 2004 with assistance from the Western Land Group, this office sent a letter to the USFS seeking a long term lease or property exchange whereby Eagle County would convey property in exchange for the Robinson Ditch water rights. You may recall that David Hallford performed a preliminary study of the value of the U.S. Forest Service Robinson Ditch shares and determined their value to be $165,600. I met with Dan Hormaechea and Barry Sheakly of the USFS on June 18,2004. During that meeting, Dan and Barry expressed a desire to work with Eagle County but reluctance to enter into a long term lease or exchange due to future water needs associated with development of the USFS tree farm property. There was some willingness to work with Eagle County on a short term basis. That was affirmed in a letter of JUne 25,2004 from Glenda Wilson. Currently ofthe five wells located on the property, three are operational. Well No.1 is used for irrigation purposes and has been in constant use without curtailment. Well No.2 supplies domestic water to the USFS as needed. Wells 3 and 4 are not operating and Well No. 5 like Well No.1 has been in constant use for irrigation purposes without curtailment. Does the Board have any objection to Crown Mountain working with Bill Lorah and the USFS concerning its I cfs of water? . Do you want this office to continue to pursue forest service or other possible water supplies like, Reudi Reservoir water or MVMD supply? Do you want Crown Mountain to continue to obtain their own irrigation supply for the property or coordinate with Eagle County. ATTORNEY RECOMMENDATION: ATTACHMENT: Letter of June 25, 2004 from USFS, Pre-Inclusion Agreement, Lease Agreement between Eagle County and Crown Mountain, Water Rights Leflse between Crown Mountain and MVMD, MOU between USFS and Eagle County, and discussion of Water Supply from David Hallford dated June 29, 2004 and synopsis of wells from Greg Goodman ofBalcomb & Green dated June 28,2004. ACTION: ISSUE No.3 The Open Space Advisory Committee has reviewed a couple of "Requests for Funding" and has made recommendations to the BoCC pursuant to the ballot language and Resolution 2004-0 IS. Now that the BoCC has had a chance to see how the process works, staff would like some direction as to the timing that the BoCC would like to see a Request for Funding from the Open Space Advisory Committee. Would the BoCC be interested in hearing potential requests at an early stage where the requesting party does not have funding partners 7/13/2004 2 in place (i.e. GOCO, land trust, etc.)? Or in the alternative, therequesting party has most of its funding in place and the Open Space Fund is the last piece of the funding puzzle? ATTORNEY RECOMMENDATION: ATTACHMENT: None ACTION: Direction from Board of County Commissioners ISSUE No.4 License Renewals for Rancho Viejo, Inc and Wolcott Yacht Club, LLC. These establishments are on today's liquor agenda. The Rancho Viejo license had previous conditions imposed requiring a 10:00 pm curfew on alcohol sales and the Wolcott Yacht Club file had previous issues associated with county access requirements. 'Ibis item is being presented to update the Board on the history of these files prior to today's hearing. ATTORNEY RECOMMENDATION: ATTACHMENT: None ACTION: This item is being presented for informational purposes only. Consent Agenda C:hainnan Stone stated the next matter before the board was the consent Agenda as follows: A. Approval of Bill Paying for the Week of luly 12,2004 (Subject to Review by the County Administrator) Mike Roeper, Finance Department B. Approval ofBm Paying for the Week of July 22,2004 (Subject to Review by the County Administrator) Mike Roeper, Finance Department C. Approval of the Minutes of the Eagle Board of County ContIIlissioners Meeting for June 15,2004 Teak Simonton, County Clerk and Recorder D. Grant Application to the Corporation for National Service for the Rural Resort Region Retired Senior and Volunteer Program (RSVP) Kathleen Forinash, Health & Human Services E. Intergovernmental Agreement between Eagle County and the Eagle River Fire Protection District County Attorney's Office Representative F.Resolution 2004-074 Concerning Appointments to the Roaring Fork Valley Regional Planning ContIIlission Keith Montag, Community Development G. Resolution 2004-075 Concerning Appointments to the Eagle Planning ContIIlission Keith Montag, Community Development H. Resolution 2004-076 Concerning Appointments to the Eagle County Building Board of Appeals Keith Montag, Community Development I. Resolution 2004-077 Concerning Appointments to the Eagle County Zoning Board of Adjustment Keith Montag, Community Development Diane Mauriello informed the board that there were no changes or amendments to the consent agenda. Commissioner Gallagher asked that item C be removed from the Agenda and that he be authorized to make corrections before approval of this item. 7/13/2004 3 Commissioner Gallagher moved to approve the consent agenda for July 13,2004 comprised of items A-I with the exception of Item C. Commissioner Menconi seconded the motion. The vote was declared unanimous. Plat and Resolution Signing consideration: Cliff Simonton, Planner, presented the following plats and resolutions for the Board's 5MB-00338, Horizon Pass Townhomes, a Re-subdivision of Tract Y -2 and Y -3, Bachelor Gulch Village Subdivision, Filing 3. A Minor Type B subdivision, the purpose of which is to re-subdivide Tracts Y-2 and Y-3 of Bachelor Gulch Village Filing 3, (Arrowhead at Vail pun) creating 9 townhome lots and associated utility, sewer, ski-way and drainage easements. Corrunissioner Menconi moved to approve 5MB-00338, Horizon Pass Townhomes, a Re-subdivision of Tract Y-2 and Y-3, Bachelor Gulch Village Subdivision, Filing 3. Commissioner Gallagher seconded the motion. The vote was declared unanimous. AFP-00189, Deaver Creek Subdivision, Filing 2, Tract L, Lots 14B and 14C. An Amended Final Plat, the purpose of which is to adjust the building envelope on Lot l4B, Beaver Creek, Filing 2, Tract L, and correspondingly change the lot line between Lots 14B and 14C on this previously subdivided duplex lot. The size of the envelope on Lot 14B would remain the same. Chairman Stone asked if any property owners had provided corrunent on these files. Mr. Simonton stated that he had not received any COmments. Co:inmissioner Gallagher moved to approve AFP-00189, Beaver Creek Subdivision, Filing 2, Tract L, Lots l4B and l4C. Commissioner Menconi seconded the motion. The vote was declared unanimous. , , , Resolution 2004-078 Approving the Zone Change for the Eaton Ranch (Eagle County File No. ZC- 00067). The Board considered the Applicant's request on July 6th, 2004. Commissioner Menconi moved to approve Resolution 2004-078 approving the Zone Change for the Eaton Ranch (Eagle County File No. ZC-00067). Commissioner Gallagher seconded the motion. The vote was declared Ul1animous. Resolution 2004-079 Approving a Special Use Permit for the Sprint at Trinity Baptist Church Low Power Wireless Telecorrununications Facility. (Eagle County File No. ZS-00117). The Board considered this proposal on June 15th, 2004. Corrunissioner Gallagher moved to approve Resolution 2004-079 approving a Special Use Permit for the Sprint at Trinity Baptist Church Low Power Witeless Telecommunications Facility (Eagle County File No.ZS- 00117). Commissioner Menconi seconded the motion. The vote was declared unanimous. Final Settlement - Agreement between Eagle County, Colorado and Gould Construction, Inc. for Supplying and Hauling Screened Rock to the Eagle County Landfill County Attorney's Office Representative I ~ Diane Mauriello stated that her office had published notice of the final settlement for today at 11 :OOam and the attorney's office had not received any claims regarding this settlement. Commissioner Menconi moved to approve Final Settlement - Agreement between Eagle County, Colorado and Gould ConsttuctiQn, Inc. for Supplying and Hauling Screened Rock to the Eagle County Landfill. Commissioner Gallagher seconded the motion. The vote was declared unanimous. .. 7/13/2004 4 Commissioner Menconi moved to adjourn as the board of county commissioners and reconvene as the County Board of Equalization. Commissioner Gallagher seconded the motion. The vote was declared unanimous. Presentation of Reports of Assessor of Valuation for Assessment for Taxable Real and Personal Property in Eagle County Joyce Mack, Assessor Ms. Mack presented these reports. She stated that the assessed value of all taxable property is $2,243,273,450, and assessed value of personal property is $70,813,150. Total Assessor level appeals were for real property 506, adjusted 283 and denied 223. Total personal property appeals were 32, adjusted 20 and denied 12. The total appeals were 538. Chairman Stone asked if this report represented an annual requirement by state statute. Ms. Mauriello said that was correct and that a resolution had been prepared Mr. Ingstad asked for the difference between last year's assessed value and this year's assessed value. Ms. Mack stated that she had the numbers in the office. Chairntan Stone stated that he believed it was an increase over last year and asked Ms. Mack to provide theSe numbers. CommissioneriGallagher moved to approve the Resolution 2004-080, presentation of reports of assessor of valuation for assessment for taxable real and personal property in Eagle County. Contmissioner Menconi seconded the motion. The vote was declared unanimous. Commissioner Gallagher moved to adjourn as the Board of Equalization and reconvene as the Board of County Commissioners. CommissionerMenconi seconded the motion. The vote was unanimous. Commissioner Gallagher brought forth a letter to Congressman McGinnis and the rest of Colorado delegation supporting HR4700 which would facilitate the White River National Forest to manage their facilities to the greater serviCe and greater cost effectiveness. This elicited surprise from Commissioner Menconi related to discussion this mornihg::-as he had not had a chance to read the letter- that he be given till the end of the week to review it. lIe requested a chance to have time to read through the letter. Commissioner Gallagher agreed and stated he would provide a copy of the letter to Commissioner Menconi. The issue Was tabled until later in the afternoon. Commissioner Gallagher moved to adjourn as the Board of County Commissioners and reconvene as the local liquor licensing authority. Commissioner Menconi seconded the motion. The vote was declared unanimous. Eagle County Liquor License Authority COnsent Agenda Teak Simonton, Clerk & Recorder A. Beaver Creek Food Services, Inc. DBA Saddleridge at Beaver Creek B. The Wolcott Yacht Club DBA Wolcott Yacht Club Commissioner Gallagher asked Mr. Treu about posting requirements related to a renewal on consent and renewal for a hearing. Mr. Treu explained that this was the situation. He stated that for a hearing you must post the premises for a period of ten days and give applicant notice of the hearing. It is not done for Consent Agenda. Commissioner Gallagher expressed concerns about the parking at the Wolcott Yacht Club and asked the clerk about the liquor license expiration date. Ms. Simonton stated that as long as the application was filed before the expiration date they can operate until the hearing. Commissioner Gallagher asked that Item B be removed from the Consent Agenda and asked for a posting so the Board can talk with the applicant about parking issues and seek solutions prior to renewal, so long as it doesn't interfere with their licensing. Commissioner Menconi moved to approve the liquor license consent agenda consisting of item A only. Comtnissioner Gallagher seconded the motion. The vote was declared unanimous. Other Liquor Rancho Viejo, Inc. DBA Rancho Viejo Restaurante and Bar Hugo Parra, the license holder and Dan Wolf, the licensee's attorney, were present for the applicant. Mr. Wolf reviewed the history of the license, stating this is the third renewal. He stated that the only item before the board today is whether to continue the 10:00 pm cutoff stipulated to two years ago at the renewal process in 2002. He asked that this restriction be removed due to lack of disturbance or complaints during the last two years. He stated that as a matter of law that keeping that restriction in place would constitute an illegal regulation by this authority which would be in excess of its authority which is limited to the granting, denial, or suspension of a license. He stated that during the first year, the summer of 200 I, there were problems with the operation, and during the summer of 2002 the applicant agreed to a one year restriction; however the restriction was carried forward to the 2003 renewal year. Regardless of the fact that there was no perceived basis for the restriction on hours of operation, the restriction was required. He informed the board that the restaurant had operated for two years under the restriction. He spoke about the staffreport which reported no incidents. He reviewed the causes of the problems during the first year, specifically the dances on Friday and Saturday nights. The applicant has no intention of continuing this type of event in the future. The local authority can only grant or deny for good cause the renewal of an application. He quoted a Colorado Supreme Court case, Gettman v. Board of County Commissioners, 221P Second-363 related to this right. He quoted the ruling, "We must conclude that the Board Of County Commissioners has no authority to regulate the sale of malt and vinous liquors. But only to grant, suspend, or revoke licenses as provided by statute." There had been other cases following along the same legal proposition. The law is equally cleaf that each license application must be determined based on the facts as they exist at the time, not on any past situations. He believes the board has two legal options; one to grant full renewal without restriction or to deny the renewal of the license. He understands that the board does have enforcement powers and to police and take appropriate action if there are future problems. He stated that Ranch Viejo had been the recipient of an undue amount of consideration by the county.. ComIIlissioner Menconi asked Mr. Treu about the choices that the board would have. Mr. Treu stated that Mr. Wolfs assessment was correct. However, the current license as it exists has a 10:00 pm curfew, and that is the license that is up for renewal. The license holder would have to stipulate to a cut off time to save their license. Commissioner Gallagher asked Mr~ Parra to help the board understand what is different or what had changed. He asked about management style and what the applicant had learned. Mr. Parra stated that it has been almost three years in learning about how to manage the business in the right way with training of employees, how to man the door. He knows about the requirements related to requesting ill's. He wondered how he could tell the board what he had learned if liquor is only allowed to be sold until 10:00 pm. He stated that he had learned what the board expected him to learn. Commissioner Gallagher asked whether they served food after 10:00 pm., and what would happen if they had their unrestricted license. Mr. Parra stated that his entire operation is shut down at 10:00 pm. He told the board that if his license was unrestricted they would stop serving liquor at 1 :30 am, and appetizers until 1 :30am and would serve full meals until 10:00 pm. Commissioner Gallagher asked whether Mr. Parra had looked at the cost benefit of serving alcohol after midnight. Mr. Parra responded that he had not looked at this analysis. Mr. Parra responded that he had not looked at this analysis. Commissioner Gallagher stated that in his experience other license holders had found that it was not profitable to serve alcohol after midnight. He asked the applicant to look at this. He also wondered if there had been a change in the alcohol management plan. Mr. Wolf stated that there had notbeen a change to the alcohol management planat the renewal. Commissioner Gallagher stated that he was looking for a change from the initial management plan after the restrictions were put in place. Mr. Wolf stated, respectfully that two years of clean operation would indicate that positive changes had been made. Chairman Stone thanked Mr. Wolf for his recognition of the board's compliance right of show cause hearings. He felt that the board had worked with the license holder to make the operation cleaner. He stated that the board had been disappointed in the past but he agreed that the license holder had not had any problems recently. He stated that Mr. Parra should know that there would be regular patrols and that if there are any future incidents and subsequent show cause hearings occurred, they would not be pleasant. Some of the problems of parking and under age service which occurred in the past cannot be problems in the future. Commissioner Menconi echoed Chairman Stone's comments. He thanked the license holder for the past two years. He also reminded the applicant about the neighbors' comments two years ago. He asked that the license holder respect that the operation is within a residential neighborhood. Commissioner Menconi moved that the board approve the renewal of the Hotel and Restaurant license of Rancho Viejo, Inc. dba Rancho ViejO Restaurant and Bar eliminating all existing conditions previously stipulated to by the applicant. Conunissioher Gallagher seconded the motion. The vote was declared unanimous. ComIIlissioner Gallagher moved to adjourn as the local liquor licensing authority and reconvene as the Board of County Commissioners after the break. Commissioner Menconi seconded the motion. The vote was declared unanimous. Abatement Hearings Jon Harrison, County Assessor's office. Mr. Harrison provided details about each of these schedules. He explained that Statutes require that on commercial properties the cost approach, the sales approach and the income approach are used to determine taxable value. - Marvin B. Simon Schedule No. R023208 Commissioner Gallagher asked what nature of the premises was. Mr. Harrison stated that this was a single family residence in Wildridge. ComIIlissioner Menconi moved that the Petitions for Abatement! Refund of Taxes for the following individual and Schedule Number be approved for the tax years, in the amounts, and for the reasons as set forth in the Assessor's recommendation sheets, such recommendations being incorporated into this hearing by reference: Marvin B. Simon Schedule No. R023208 Commissioner Gallagher seconded the motion. The vote was declared unanimous Chairman Stone asked that the remaining petitions all be presented at once by Mr. Harrison as the recommendation is the same for all three. West Star Bank & Vail 108, Ltd. BenjaminP. Hohman B. Gentry Ventures, Ltd. Schedule No. R008690 Schedule No. R033353 Schedule No. R054252 .Mr. Harrison then gave the background on the three above listed schedules for the commissioners. ComIIlissioner Gallagher asked what criteria are needed to determine use the Income or Sale method of setting value. Mr. Harrison stated that for residential property statute requires specifically only use market or sales approach. For commercial property, such as this one, they are required to consider the cost approach, the sales or 7/13/2004 7 market approach, and the income approach. The income approach provides the most consistent data of the three approaches. Commissioner Gallagher moved that the Petitions for Abatement / refund of Taxes for the following individuals and Schedule Numbers be Denied for the tax years and for the reasons as set forth in the Assessor's recommendation sheets, such recommendations being incorporated into this hearing by reference: West Star Bank & Vail 108, Ltd. Schedule No. R008690; Benjamin P. Hohman Schedule No. R033353; B. Gentry Ventures, Ltd. Schedule No. R054252. Commissioner Menconi seconded the motion. The Vote was declared unanimous. Planning Files G..00017 Jax Equestrian Easement Vacation Phillip BoWman, Engineering Development presented file number G-00017, Jax Equestrian Easement Vacation. This file represents a request for vacation of an equestrian easement on Lot 7 of the Refiling of Lots 25 through 29, Aspen Mesa Estates, First Filing. The applicant has requested that this File to be tabled to August 3, 2004 Commissioner Menconi moved to table file G~00017 Jax Equestrian Easement Vacation to August 3, 2004. Commissioner Gallagher seconded the motion. The vote was declared unanimous. AFP-00190 Aspen Mesa Lot 7 Joe Fofinash, Planner Development, presented file AFP-00l90. This is an amended final plat which would reflect the vacation of an equestrian easement pursuant to File No. G-OOO 1 7 to allow construction of a dwelling in the existing easement. The applicant has requested this file to be tabled until August 3, 2004. Commissioner Gallagher moved to table file AFP-00190 Aspen Mesa Lot 7 until August 3,2004, at the applicant's request. Commissioner Menconi seconded the motion. The vote was declared unanimous. G-00018 Angela Lane Justin Hildteth, Engineering Development, presented file G-OOO 18. The applicant requests a vacation of Angela Lane, replacing the cul-de-sac with a Y turnaround and turning it into a private road. This file has been withdtaWll at the applicant's request. PDS-00039 Willits Bend Joe Forinash, Planner, Planning Development presented file PDS-00039. This is a PUD Sketch Plan for a flexible space, mixed use development consisting of 38,000 s.f. of fabrication & trades, 16,500 s.f. qf office, 7,500 s.f. ofretaiVrestaurant and 30,543 s.f. of residential NOTE: This file was tabled from June 1,2004 to July 13,2004 and the applicant is requesting that it be tabled to August 3, 2004. Commissioner Menconi moved to table file PDS-00039 Willits Bend until August 3,2004. Commissioner Gallagher seconded the motion. The vote was declared unanimous. PR-00025 Berry Creek Recreation Tract Phase III Joe Forinash, Planner Development presented file PR-00025. This file represents request for approval of site specific review for skateboard park, playground, building pad for future buildings and sub-grade and stabilized road base for parking and road areas. The applicant has requested that the file be tabled until July 27,2004. 7/1312004 8 Commissioner Menconi moved to table file PR-00025 until August 3, 2004. Commissioner Gallagher seconded the motion. The vote was declared unanimous. ZS-OOl10 Gabriel Foundation Cliff Simonton, Planner, Community Development presented file ZS-OO 11 O. The property is located at 2101 Emma Rd., approximately 1.5 miles west of downtown Basalt. He reviewed the history of this application. Note: This file tabled from June 29, 2004. A Special Use Permit for the operation of a Psittocene Bird Shelter, Aviary and Adoption Facility Staff Report: At its hearing on May 6,2004, the Roaring Fork Valley Regional Planning Commission voted three to two to recommend denial ofthe applicant's proposal. The following considerations were given: . A concern for suitability, noting the "tight fit" of proposed improvements and related activities on that portion of the property in Eagle County (the exact location of the county line on this property has not been determined, which troubled some commissioners) . A concern for compatibility (and suitability) given the elaborate and expensive measures being proposed to mitigate impacts . 'A lack of adequate information regarding a final site plan, final building plans, final plans for noise IIlitigation proposed and a final written operations plan (final detail regarding these plans was not available at the time of the planning commission hearing. Changes and additions have been made to these plans since that hearing) . . The on-going and as-yet U11tesolved building code violation In rendering a decision, the planning commission acknowledged the excellent work and commendable service provided by the Foundation. 1. PROJECT DESCRiPtiON A. SUMMARY: On June 3, 2003 a notice of zoning violation was issued by Eagle County Code Enforcement to Julie Murad, ownerofthe Gabriel Foundation (hereafter Applicant) for unauthorized business operations on her lot neat the town of Basalt. Said notice was prompted by an anonymous complaint alleging unauthorized construction activities and the operation of an unauthorized bird aviary. The subject property straddles the Eagle County/Pitkin County line, with approximately 1.5 acres of the lot in Eagle County and the remaining 5.28 acres in Pitkin (as determined by the Eagle County and Pitkin County Assessor). The zoning in Eagle County is Resource (minimum lot size 35 acres), and the zoning in Pitkin County is AFR-10 (minimum lot size 10 acres). As such, the lot is non-conforming in both jurisdictions. In Eagle County, any use on a non-conforming lot other than a single family residence and "customary agricultural uses" requires a special use permit. Prompted by the NOV, the Applicant submitted a Special Use Permit application on August 18, 2003, requesting the following be allowed to occur on the Eagle County portion of the property: The operation of the Gabriel Foundation, a registered and licensed non-profit psittocene (parrot like) bird rescue, re-habilitation and adoption facility, consisting of two (2) support buildings (one not yet built), outdoor bird flight and exercise cages, and associated parking and infrastructure. The buildings would contain office space, a food preparation kitchen, restrooms, bird cages, a bird quarantine area, and equipment storage areas (please see attached building plans). As many as five (5) employees are involved in the daily care and maintenance of a maximum of 250 psittocene birds, which are brought to the facility from locations around the world. Other volunteers, 7/13/2004 9 including guest veterinarians and veterinary interns, also frequent the facility, and public tours are conducted on site (as many as eight per week). Community Development has determined this use to be commercial in nature. If this special use is approved, applicable building codes would be applied to both structures. Notice of Occupancy Violation for the steel frame building, which has never been permitted for habitation, was issued January 9,2004 (see attached NOV). The other yet-to-be-constructed building would be a two story structure housing additional bird flight cages, office space and storage. An Accessory Dwelling Unit was originally included, but has now been removed from the Applicant's proposal. At the writing of this report the aviary continues in full operation, although as a condition of code violation, no members of the public are allowed in the steel frame structure. The land is essehtially flat, with drainage generally to the north and west. To the south (in Pitkin County) is Emma Road and the Double K Ranches Subdivision, an older neighborhood of 17 non-conforming lots that range in size from approximately 2 to 3 acres. To the north (in Eagle County) is the ROW of the Roaring Fork Regional Transit Authority rail line, a large vacant propeity and, 600 feet away, the right of way for Highway 82. Access is from the south (Pitkin County) via Emma Road. A single family home exists on the Pitkin County side, and the steel frame building with two outdoor cage structures exist on the Eagle County side. In. Pitkin County, land use regulations prohibit any use other than single family dwellings and agriculture Qn non-conforming lots. Pitkin County has also determined the use commercial in nature; and has indicated that without a change to their land use code, uses and facilities associated with the Gabriel Foundation will not be permitted on the Pitkin County portion of the property (letter of 01102/04). 8. CHRONOLOGY: No Eagle County land use applications or building permit applications pre-date this file . for the subject property. An ISDS permit was issued for a one-toilet system associated with the steel frame agricultural building on the site in 1992. The Gabriel FOUndation was originally located adjacent to the Aspen Valley Veterinary Hospital on Highway 82 in Old Snowmass (Pitkin County). A code violation at that location resulted in the Foundation moving its operation to the current property in late 1999. Notice of violation for unauthorized use on the Eagle County portion of the lot was issued June 3, 2003. Zoning code enforcement was prompted by a call from one of the applicant's neighbors. Notice of violation for building occupancy in the metal building was issued January 9, 2004. The Applicant was given 60 days from that date to submit building plans to correct code violations, but has since negotiated to wait for a decision on this Special Use before spending the money to correct code deficiencies. Code violations with Pitkin County regarding a flight cage on their portion of the property remain unresolved at the writing of this report. c. SITE OAT A: Existing Zoning: Total Area: Water: Sewer: Access: Surrounding Land Uses I Zoning: East: Agricultural Residential / AFR-lO (Pitkin County) West: Agricultural Residential / AFR-10 (Pitkin County) Resource (Eagle County) North: RFTA ROW, Agricultural/Resource South: Emma Road ROWand Residential! AFR-10 (l1onconforming lots in Pitkin County) Resource (1.5 acres in Eagle County), AFR-IO (5.28 acres in Pitkin County) All improvements are proposed for the 1.5 acres in Eagle County Private well Private ISDS via Emma Road 7/13/2004 10 STAFF REPORT A) REFERRAL RESPONSE: Eagle County Engineering Memo, December 17, 2003 . No Comment at this time. Eagle County Environmental Health Memo, December 29, 2003 . Codee:n:forcement has complaints of noise from the premise. The screening of cages and/or other mitigations should be considered to minimize the nuisance factor. . The ISDS that serves the building on the Eagle County portion of the property was not designed or permitted for its current use. A new system will be required. . . Bird droppings are high in nitrogen, and the potential environmental effects of waste water disposal on the Roaring Fork River alluvium have not been addressed. Advanced treatment of water originating from the cage areas may be required. . No mention of the potential transmission of the disease Histoplasmosis, which originates from a fungus associated with bird droppings (articles from Center for Disease Control and the Iowa Department of Public Health referenced in memo) is provided. Risks to aviary staff and visitors should be discussed, and appropriate safe-guards included in the plan. . The uses proposed may not be appropriate for this location. Eagle County Building Department Reference Notice of Occupancy Violation, sent by Eagle County Code Enforcement, January 9, 2004 . The strUcture that houses the birds on the site is considered a Group B occupancy under the 2003 International Building Code . There are no previous permits issued for this structure. . Application for a building permit, with plans and all related peripheral permits, is requited within 60 days of receipt ofthe Notice of Violation. . Untilthe structure has been brought to code, no member of the public shall be allowed in the structure. Pitkin County Planning Memo, January 2,2004, with copies of letters (3) sent to the owner by Pitkin County . Complaintswete received in the spring of 2003 regarding a flight cage on the property. . Several letters were sent by Pitkin County (see attached) requiring the cage be removed . A building permit to relocate the flight cage has been submitted but has not been approved pending resolution of the use of the property by the Gabriel Foundation. . The property is zoned AFR-IO, requiring a 10 acre minimum lot size, and as such is non-conforming in size. only single family residences are permitted on non-conforming lots. . Pitkin COUrtty does not equate the proposed use with other agricultural uses allowed by zoning in the neighborhood. . A third letter was sent in December of 2003 stating that the keeping of exotic birds is not considered an agricultural use, and that the owner would have to apply to Pitkin County to change Pitkin County's land use code, which presently prohibits any use other than a single family home on a substandard size lot. Should the change in code be approved, the owner could then apply for a special use permit allowing a business operation, specifically a "Commercial Kennel and Veterinary Clinic". . No land use application has been made with Pitkin County. The site remains in violation of applicable Pitkin County Codes. . The Double K Ranch subdivision to the south contains 17 lots of approximately 3 acres in size. Other surrounding lots are larger, and the character ofthe area is rural. . Noise level was of great concern to adjacent neighbors, and the owner has not adequately addressed noise impacts in the application. The details for a wall proposed along the west side of the lot were not in the application, and no explanation was provided regarding the wall's effectiveness in mitigating noise. . Increased traffic is a concern of some neighbors . There are no Pitkin County building or environmental health records for the subject property . Pitkin County Standards require one parking space per 400 square feet of non-residential use . Even if an development and activities occur on the Eagle County side, Pitkin County is concerned for 7/13/2004 11 impacts to Pitkin County and the surrounding residents, and would ask that any approval address noise and traffic impacts, and that consideration be given to limiting employees, volunteers, tours, visitors, etc; The Town of Basalt Letter of January 5, 2004 . The Basalt Master Plan supports the existing rural character in the area. Care should be exercised to ensure the proposed use will be compatible with surrounding uses. . Clear limits on the use should be established. If future expansions are contemplated, a different location should be considered. The potential impacts of traffic, parking and noise should be considered. . Preservation of the existing pasture should be formalized by easement or as a condition of approval. . Additional setbacks and mitigations should be considered where warranted by proximity to neighboring properties and uses. Frontage with the Rio Grand ROW should be treated in a manner consist with future uses, including trails, within this space. . Information on sewage disposal should be more complete. Significant care should be exercised to protect ground water qu.ality. . Special conditions dealing with the disposal of bird waste may be warranted. Site drainage and water quality of surface drainage should be addressed. . Information on well perhlits should be reviewed to assure that proposed uses are consistent with permits and any related limitations. . Has application with Pitkin County been made? Significant weight should be given to comments from Pitkin CoUrtty regarding the proposed use. BaSalt Rural Fire Department Letter of January 2, 2004 . An "occupancy" needs to be determined in order to define fire code requirements for the use. . Access for fite apparatus appears to comply with applicable codes. . Given its rural location and the number of buildings on the property, a fixed water supply meeting compliance with NFPA 1142 is indicated. A determination of building occupancy will make a difference regarding compliance with this provision. Double K Ranches Homeowners' Association Letter of January 2, 2004 . The KK homeowner's association is opposed to the application . The noise is unbearable to residents . There is added traffic on Emma Road . The use is not allowed in this zoning and it should stay that . Approval of the use would make future growth of, and changes to, the use difficult to control. . Approval ofthe use would make special use applications for adjacent properties more difficultto oppose . Property values would be negatively affected. . Buildings on the Eagle County portion violate setback ordinances and, according to the application, are intended to remain. This may set precedence for other owners to violate these standards. . Reference the site plan submitted, the area calculations represented by the applicant are not accurate, and only 0.57 acres are in Eagle County. . The applicant intends to keep the flight cage located in Pitkin County in its present location, which is closest to nearby residences Letters. At the writing of this report (06/21/04) seventy eight (78) letters and/or e-mails have been received by Community Development. All support the continuance of the Gabriel Foundation at this site. Additional Referrals were sent to the following, with no response: Eagle County Attorney, Eagle County Animal Control, Eagle County Sheriff (responded with a safety/security inspection of the residence - deemed not relevant to the application), Eagle County Assessor, Colorado Division of Wildlife, Colorado Department of Agriculture, US WestJPTI, Public Service, Holy Cross Electric. B) STANDARDS I DISCUSSION I FINDINGS 7/13/2004 12 Pursuant to Eagle County Land Use Regulations Section S-2S0.B Standards for the review of a Special Use Permit: STANDARD: Section S-2S0.B.l Consistent with Master Plan. The proposed Special Use shall be appropriate for its proposed location and be consistent with the purposes, goals, objectives and policies of the Master Plan and the FLUM of the Master Plan, including standards for building and structural intensities and densities, and intensities of use. The master plan matrix that follows analyzes the proposal as submitted. Environmental Quality - The Eagle County Department of Environmental Health (12/29/03) has identified potential hazards related to Histoplasmosis, a disease associated with a fungus.found in bird waste. Given this concern, operating procedures that address the disposal of bird waste and the cleaning of bird cages have been developed by the Applicant, With solid bird waste routinely collected and disposed of in the local landfill. Liquid Waste (with the possible exception of wash water from the outdoor cages) is to be directed to the sites ISDS, which will be evaluated and upgraded to accommodate the uses proposed. Should the Board vote to approve this proposal, adherence to those portions of the operating plan related to the disposal of bird waste and the prevention of disease transmission Will be made a condition of this Special Use Permit. lIollsin2 To maintain visual quality, the Mid Valley Master Plan recommends a 200 foot setback for any new development (parking and/or buildings) along Emma Road. Developments associated With the aviary are proposed to be located outside of this setback. Open Space/Natural Environment Water quality must be maintained. The Individual Sewage Disposal System that currently serves the structure used by the Foundation is not designed or sized for the proposed use, and concern has been expressed for possible degradation of ground water in the underlying aquifer (memo from Environmental Health, letter from the Town of Basalt). Given the high nitrogen content of bird droppings and the sensitivity of the underlying alluvial soils, an engineered ISDS Will be required. This system will collect waste water from all indoor facilities and drains. It is noted, however, that the Applicant 7/13/2004 13 presently intends to allow wash water from outside cages to infiltrate the ground. A professional opinion regarding the appropriateness of this procedure has not been submitted. Buildings and sewage disposal facilities use by the Foundation have not been designed or permitted for their intended use. The acquisition of necessary permits and the construction of appropriately designed facilities intended to mitigate impacts to the environment is recommended as a condition should the Board vote to approve this use. An operating plan for the Gabriel Foundation has recently been submitted, and adherence to those portions of the plan related to the protection of water quality are also recommended as a condition. [+1-) FINDING: Consistent with Master Plan. As conditioned, it MAY BE demonstrated that the proposed Special Use Petnlit is appropriate for its proposed location and consistent with the purposes, goals, objectives and policies of the Master Plan and Master Plan FLUM, including standards for building and structural intensities and densities, and intensities of use. STANDARD: Section 5-250.B.2 Compatibility. The proposed Special Use shall be appropriate for its proposed location and compatible with the character of surrounding land uses. The Gabriel Foundation is licensed through the State of Colorado as a Pet Animal Care Facility, and both Eagle County and Pitkin County have equated it to a either a "kennel" or a "veterinary hospital", or some mix of both. As such, both counties have determined the use to be commercial in nature (letter from Pitkin County, 01/02/04, and NOV from Eagle County dated 01/09/04). Concerns for appropriateness and compatibility center on the adequacy of physical space and the noise from the birds when they ate in outside cages. Pitkin County has stated that, given current zoning regulations, no facilities or activities associated with the Gabriel foundation will be allowed on the Pitkin County side of the property; The applicant Is therefore required to fit all improvements on that portion of the lot in Eagle County. Reference the most recent site plan, usable land in Eagle County will be essentially filled with buildings, cages, parking lots and sewage disposal systems associated with the aviary. It is noted that in the event that the first site fails, no room exists for a secondary leach field on the property in Eagle County. Ten parking spaces are proposed, which should accommodate employees, volunteers, and patrons, but little room is left for delivery trucks or for buses or vans associated with public tours that are proposed for the facility. Staff continues to be concerned with the adequacy of the Eagle County portion of this property to "comfortably" handle the needs of this proposal, especially if it were to expand in the future. Regarding noise, Eagle County standards prohibit recurrent noise exceeding 60 decibels during the day and 55 decibels at night, measured at the lot line (Section 4-520.A). Pitkin County's standards are more restrictive, limiting daytime noise to 55 decibels and nighttime to 50 decibels. A noise study was conducted by Western Slope Pro Audio on Apri114 and April 16, 2004 (attached) which measured sound considerably and consistently over the limit when the birds were placed in the flight cage on the Pitkin COUl1ty side ofthe property, and noise generally at the limit when the birds were located in cages on the Eagle County side (in this latter test the birds were 40 to 45 feet away from the monitor and behind a landscape wall). The sfudy also noted the piercing quality of the sound, and stated that higher frequency sounds like those emitted by the birds are more susceptible to wind carry and to reflection from hard surfaces. The referral response from the Double K Homeowners Association (01/02/04) would seem to confirm this, stating that residential lots in the immediate vicinity experience "unbearable" auditory impacts. To date, attempts by the Applicant to "retrofit" existing agricultural structures to accommodate this rather unique operation has obviously not worked in mitigating noise impacts from the property. Throughout the evaluation of this proposal, Staff has advocated the abandoning of existing strucfures, and the construction of one large sound-proof building that would completely enclose the operation, including bird flight areas, thus eliminating the problem of noise. The building could be designed to replicate agricultural buildings common to the area, and could be positioned with the specific needs of the aviary in mind. 7/13/2004 14 The most recent site plan, submitted to Community Development on June 14th, indicates that the Applicant has decided to stay with the two smaller buildings concept. The as yet un-built building would be sited to the south, which would help screen noise traveling in that direction. Custom cage structures would then extend north from this building to the corner of the lot and then east to the existing steel frame building, creating a sort of open air courtyard. These cage structures would be backed by an insulated wall along the property line and covered by an insulated roof, but would be open to the center courtyard. This would seem a good idea, and it may, work to mitigate noise problems. It may also serve, however, to concentrate or amplify the sound from the birds in some unforeseen manner. No independent analysis regarding the effectiveness of the proposed improvements by a qualified noise expert has been provided. The new site plan also shows a set of cages proposed to the east of the existing metal frame building. This cage assembly would face south, and noise from the cage would not be mitigated in that direction. This would seem contrary to the intent of noise IIlitigation and if approved, Staff would recommend this cage arrangement not be allowed. While changes in site layout appear headed in a good direction, it has not been demonstrated that the proposed improvements will be successful in reducing noise impacts to acceptable levels. As designed, and so long as noise is identified as a significant factor, Staff is unable to conclude that this proposal is appropriate for this location and will be compatible with surrounding uses. Pitkin County and the adjacent Homeowners Association also listed increased traffic on Emma Road as a concern. While employees, veterinarians, veterinary interns, volunteers and individuals and groups visiting the site to go on tours and or see or adopt bitds will create additional traffic, Eagle County Engineering considered this additional traffic impact upon Emma Road insignificant enough to warrant no comment (Emma Road is located within Pitkin County, not Eagle County) [-] FINDING: Compatibility. It HAS NOT been adequately demonstrated that the Special Use could be made appropriate for its location and compatible with the character of surrounding land uses. STANDARD: Section 5-250.8.3 Zone District Standards. The proposed Special Use shall comply with the standards of the zone district in which it is located and any standards applicable to the particular use, as identified in Section 3-310, Review Standards Applicable to Particular Residential. Awicultural and Resource Uses and Section 3-330, Review Standards Applicable to Particular Commercial and Industrial Uses. The facility is proposed on a 1.5 acre portion of a lot that extends into Eagle County from Pitkin County. The primary residence for the lot is located in Pitkin County on land zoned AFR-IO. AFR-10 zoning prohibits any use other than single family homes on non-conforIIling lots, thus the mandate by Pitkin County that all Gabriel Foundation improvements be located entirely within Eagle County. Within Eagle County, the zoning is Resource. Since this is a non-conforming lot, any use other than residential and customary agricultural uses requires a Special Use PerIIlit. The proposed Psittocene (parrot like) Bitd Shelter and Adoption facility would employ as many as 5 people, and would accommodate visits to the site by volunteers, tour groups and individuals interested in adopting birds. The use has been determined commercial in nature. Referencing Table 3-300, Residential. Agricultural and Resource Zone Districts Use Schedule of Eagle County's Land Use Regulations, the particular use "Pet Animal Care Facility", or more specifically "Psittocene Shelter, Adoption Facility, and Aviary" is not listed. The closest similar use has been determined to be a "kennel" or a "veterinary hospital", both of which require a Special Use Permit in the Resource Zone District. There are no specific zoning standards listed for these uses, as both require licensing through the State of Colorado. The Gabriel Foundation is currently licensed by the State Department of Agriculture as a Pet Animal Care Facility. 7/1312004 15 Zone District Standards require a minimum setback of 12.5 feet from property lines. Plans recently submitted show proposed improvements can conform to these standards. [+] FINDING: Zone District Standards. The proposed Special Use DOES comply with the standards applicable to the use, as identified in Section 3-310, Review Standards Avplicable to Particular Residential. Agricultural and Resource Uses STANJ)ARD: Section 5-250.B.4 Design Minimizes Adverse Impact The design of the proposed Special Use shall minimize adverse impacts, including visual impact of the proposed use on adjacent lands; furthermore, the proposed Special Use shall avoid significant adverse impact on surrounding lands regarding trash, traffic, service delivery, parking and loading, odors, noise, glare, and vibration, and shall not create a nuisance. This application was prompted by a notice of zoning violation, which resulted from a complaint concerning noise. The use of the existing facilities on the site, which were originally constructed as agricultural buildings, does not work well to house and support an exotic bird aviary. The Pre-existing historic structures do not adequately facilitate mitigation of noise impacts upon adjacent properties, they violate occupancy building codes, and the minimal septic system installed in 1992 does not accommodate the intended use. As previously discussed, a new site plan and plans for customized cage structures have recently been submitted, but expert testimony indicating the effectiveness of these plans to reduce noise to acceptable levels has not. Parking may be adequate for employees and visitors, but may not be for tour busses and/or or delivery trucks. Given the above, and as currently proposed, it has not been adequately demonstrated that the design minimizes adverse impacts on surrounding lands. [-] FINDING: Design Minimizes Adverse Impact. It HAS NOT been demonstrated that this proposal, as designed, will adequately minimize adverse impacts to surrounding lands. STANJ)ARJ): Section 5-250.B.5 Design Minimizes Environmental Impact. The proposed Special Use shall minimize environmental impacts and shall not cause significant deterioration of water and air resources, wildlife habitat, scenic resources, and other natural resources. In their referral response of December 29,2003, Eagle County Environmental Health identified concerns for the handling of bird waste on the site, as it is known to have high levels of nitrogen and can be associated with the disease Histoplasmosis. The Town of Basalt also voiced concern for impacts to ground water quality in the Roaring Fork River alluvium resulting from the generation of bird waste on the property in their letter dated January 5, 2004. The individual sewage disposal system (ISDS) that handles waste from the metal building was not designed for the proposed use. A new engineered septic system is proposed, although room for an alternate leach field site is not available given the limited space on the property. Evidence has not been submitted that would indicate the appropriateness of allowing wash water from the outside cages to directly infiltrate the ground, and Staff would recommend improvements to assure that wash water from all cage areas, both inside and out, is collected and directed to the new ISDS. Regarding the handling of solid waste, a detailed Operations Manual which discusses the handling ofbitd waste has recently been received. As of the writing of this report, Environmental Health has not yet had the opportunity to fully review the adequacy of its contents. Material on site that might be contaminated with 7/1312004 16 bird waste must be carefully handled in order to reduce any threat from disease, and Environmental Health has suggested a review of the proposal by a qualified expert in the area of bird waste management. The Division of Wildlife did not respond to referral request, and as such, it is assumed that no threat to indigenous birds or other wildlife in the area will result from the operation of the aviary. Given the above, and as currently proposed, it has not been adequately demonstrated that the most current design can and will minimize all environmental impacts related to the potential for disease transmission and the disposalofbitd waste on the property. H FINDING: Design Minimizes Environmental Impact. It HAS NOT been fully demonstrated that this proposal, as designed, will minimize all environmental impacts. STANDARD: Section 5-250.B.6 Impact on Public Facilities. The proposed Special Use shall be adequately served by public facilities and services, including roads, pedestrian paths, potable water and wastewater facilities, parks, schools, police and fire protection, and emergency medical servic~s. The subject property is serVed by a private well, and utilizes ISDS for waste water treatment. The Applicant has sl.lbIIlitted a copy of a contract recently obtained through the Basalt Water Conservancy which provides adequate water for two dwelling units and the commercial uses contemplated by the Gabriel Foundation operation. A new ISDS is proposed to handle the needs of the operation. The proposed special USe win otherwise be adequately served by public facilities and services. [+]FINDING: Impact on Public Facilities. With improvements to sewage disposal, the proposed SpeciallJse IS adequately served by public facilities and services such as roads, pedestrian paths, potable water and waste water facilities, parks, schools, police and fire protection, and emergency medical services. STANDARJ>: Section5-250.B.7 Site Development Standards. The proposed Special Use shall comply with the appropriate standards in Article 4, Site Development Standards. Article 4, Site Development Standards [-] Off-Street. Parking and Loading Standards (Division 4-1) This specific use is not contemplated by Land Use Parking Regulations. Applicable standards for coII1rt1ercial development require one space per 250 square feet of commercial area, excluding common. spaces, mechanical areas and storage spaces used only by the "tenant". I:i1terior plans submitted indicate some amount of office space, however much of the space is devoted to cages and work areas for the birds. Other work done by the Foundation takes place outdoors. As such, it would seem appropriate to evaluate parking based on the Applicant's stated needs. Per the most recent site plan, 10 parking spaces are proposed. These spaces should be adequate to handle daily needs for five (5) employees, and other volunteers and patrons. Per commercial code, handicap access will be requited, and handicapped parking space allocated; Also, larger vehicles associated with tour groups and service delivery trucks may have difficulty using the parking area if other cars are present. It would seem likely that some parking, at least on occasion, would take place in Pitkin County. Again, this triangular shaped parcel of land in Eagle County may not be adequately sized for the proposed improvements and/or intensity of use. 7/13/2004 17 [+] Landscaping and illumination Standards (Division 4-2) No infonnation on site lighting has been presented. It is assumed that applicable standards can and will be met. en/a] Sign Regulations (Division 4-3). No signs are proposed in Eagle County. [+] Natural Resource Protection Standards (Division 4-4) [+] Wildlife Protection (Section 4-410) - The DOW did not respond to referral request en/a] Geologic Hazards (Section 4-420) - No referral was sent to the Colorado Geologic Survey, as the area is generally flat and is not indicated on County hazard maps. Standard Soil investigations will be requited for any building permit and/or ISDS permit. [+] Wildfire Protection (Section 4-430) - County Wildfire maps indicate a low rating in this area. Wildfire regulations will apply at application for building permit. en/a] Wood Burning Controls (Section 4-440) en/a] Ridgeline Protection (Section 4-450) This site is not identified as an area of possible Ridgeline impact on related maps. [-] Environmental Impact Report (Section 4-460) An Environmental ImpactReport was not required, however, possible impacts to the environment have been identified (see discussion under Master Plan, Compatibility and Minimization of Environmental Impact, above) [ -] Commercial and Industrial Performance Standards (Division 4-5) Eagle County has determined this use to be commerci:il in nature, and will requite all facilities to adhere to applicable B occupancy codes. [-] Noise and Vibration Standards - This application was prompted by a notice of zoning . violation, which resulted from a complaint concerning noise. A determination as to whether or not the mitigations proposed will be effective in reducing noise generated by the birds has not been conducted. en/a] Smoke and Particulate Standards en/a] Heat, Gate Radiation and Electrical Interference. [:] Water Quality Standards - It is presently proposed that wash water resultant from the cleaning of the floor areas in outside cages be allowed to infiltrate into the ground beneath the cages. No expert testimony has been submitted as to the appropriateness of this measUre, especially given the high nitrogen content of bird droppings and the sensitive nature of the Roaring Fork alluvium that underlies the site. Over time, bird waste generated by the aviary operation may impact ground water quality in the area. [+/-] lIDprovement Standards (Division 4-6) en/a] Roadway Standards (Section 4-620) en/a] Sidewalk and Trail Standards (Section 4-630) en/a] Irrigation System Standards (Section 4-640) [-] Drainage Standards (Section 4-650) It has not been demonstrated that runoff from outdoor cage areas will be handled in a manner that will assure protection of adjacent properties and/or the ground water system from contamination. en/a] Excavation and Grading Standards (Section 4-660) en/a] ErosiOn Control Standards (Section 4'-665)- en/a] Utility and Lighting Standards (Section 4-670) [+/-] Water Supply Standards (Section 4-680). Iriformation regarding the source and adequacy of Water for drinking and to support the birds has been provided (private well and a contract with the Basalt Water Conservancy). Water amounts required and/or available for ftre suppression have not yet been determined (reference referral response from the Basalt Rural Fire Protyction District, 01/02/04) [-] Sanitary Sewage Disposal Standards (Section 4-690) It has been determined that the sewage disposal system that currently serves the aviary is not adequate, and that a new engineered system will be required. A leach field is proposed for the northwest corner of the property, however, room for an alternate leach field site is not available on the Eagle County portion of the site. 7/13/2004 18 [+] Impact Fees and Land Dedication Standards (Division 4-7). The proposed use will generate additional traffic for this property. A Road Impact Fee will be assessed at application for any building permit associated with the operation. [+/-] FINDING: Site Development Standards. As proposed, the proposed Special Use DOES NOT comply with all the appropriate standards in Article 4, Site Development Standards. STANDARD: Section 5-250.B.8 Other Provisions. The proposed Special Use shall comply with all standards imposed on it by all other applicable provisions of these Land Use Regulations for use, layout, and general development characteristics. No other applicable provisions of the Land Use Regulations were found relevant to this proposal for Special Use. [+] FINDING: The proposed Special Use DOES comply with all standards imposed on it by all other applicable provisions of these Land Use Regulations for use, layout, and general development characteristics C. SUGGESTED MOTION: I move that the Eagle County Board of County Commissioners Table File No. ZS-OOllO to (date to be determined) at which time the Board of County Commissioners will reconvene at the Eagle County Building in the Town of Eagle, Colorado to deliberate the merits and/or deficiencies of this application. If, by the date of the next hearing, the Applicant can provide the Board with sufficient evidence to make the negative findings contained in this report positive, and should the Commissioners consequently decide to approve this proposal, then the folloWing motion is suggested: I move that the Eagle County Board of County Commissioners Approve File No. ZS-OOllO, incorporating Staff findings, as modified this day, with the following conditions: 1) That this Special Use Permit shall not run with the land, but rather shall be for the operation of the Gabriel Foundation Animal Pet Care Facility on this site only, as described, presented and otherwise modified by the Boa.rd of County ComIIlissioners this day. 2) That within 30 days of the signing of the resolution approving this file, the Applicant shall submit an application for a building permit to remedy the building occupancy violation of the existing steel frame building. 3) Tha.t within 14 days of the signing of the resolution approving this file, the Applicant shall submit an application for an Individual Sewage Disposal System designed to accommodate the uses proposed for this property . 4) Thatproperly oriented and sOUl1d proofed cages, utilizing technology and construction consistent with that recommended in the report submitted by Western Slope Pro Audio (ApriI19, 2004) be incorporated into planned site improvements, and that said cages be installed on the property no later than September 30, 2004. 5) That all improvements proposed to mitigate sound impacts and required to resolve building code violations shall be completed no later than November 31, 2004. 6) That the time birds shall be allowed in the outdoor cages shall be immediately limited to a period from lOam to 4 pm each day. An exception to this condition is made for small bitds utilizing the small bird flight cage located on the north side of the steel frame building. 7) That operating procedures related to the handling of bird waste and the cleaning of bird cages, as specified in the Gabriel Foundation Operations Manual subIIlitted June 22, 2004, but as amended to include the provision that all wash water from indoor and outdoor cages be directed to the site's ISDS system, shall be strictly adhered to. 7/13/2004 19 8) . That operating procedures designed to minimize the potential for disease transmission, as specified in the Gabriel Foundation Operations Manual submitted June 22, 2004, shall be strictly adhered to. 9) That operating procedures related to the health, safety and welfare of any member of the general public entering on or visiting this property, as presented in the Gabriel Foundation Operations Manual submitted June 22, 2004, shall be strictly adhered to. 10) That all material representations made by the Applicant in submitted materials and in public meetings shall be adhered to and considered conditions of approval, unless otherwise amended by other conditions. Mr. Simonton stated that the applicant had provided all ofthe information that had been requested at the previous meeting on June 29, 2004. The contntissioners were also provided with a revised set of conditions should approval be given to this file. Staff had been approached in November of 1998. The information was provided to the proposed purchaser of the property in 1998 that indicated that a special use perIIlit would have to be issued. The primary concerns continue to be the noise generated by the birds, intensity of use on a small space, the portion of the lot that exists in Eagle County and use of structures that had not been approved. The county line is also of concern, as it is indeterIIlinate on this property. He indicated that Peter Sulmeisters from the Engineering Departn1ent could address questions about this issue. He informed the board that the first condition addresses this issue as well. It will rely on assessor's offices of Pitkin and Eagle Counties to provide the demarcation of that property line. The space available is small and it would seem likely that the 10 parking spaces would be inadequate on some occasions. The lot is non-conforIIling and yet is surrounded by other lots that are also non-conforming. (Board had hard copies of the presentation which wasn't working) He reviewed the hard copy of the slides. He showed the property lines and the site plan with parking spaces provided. Because of the fact that this is a new use there aren't any land use regulations that would address parking requirements. Staff doesn't have verification from a third party professional about the noise mitigation solution offered by the applicant. Staff has condition #2 that would require that prior to recordation of a resolution approving this file. Staff also doesn't know what it would take to bring the existing building up to code. The applicant has indicated that if the application is approved, they would obtain a building permit for the new building, then they would move operations out of this building temporarily so that repaits and upgrades could be made to bring this building up to code. Several conditions have been created to address this issue and a drop dead date of April 1, 2005 for completion of new building has been set. The occupation of the existing building would continue for approximately another 8 months. Another condition is related to the outdoor flight cages which would require them to be built by January 1,2005. A condition would identify the times of day when the bitds would be allowed in the outdoor cages that reflects the operations manual. Staff does not have any conditions related to continued use of the building or the septic system. Letters sent to the .applicant on January 9, 2004 indicated that members of the public are not allowed in the building. Negative findings include possibility of disease transmission and ground water contamination. A new septic system is proposed, however. He indicated that the operations manual is a good document, but includes inconsistencies related to the current plan. There is a condition that addresses these inconsistencies. Mr. Simonton stated that Terrell Knight; attorney Hal Dischler, representing the applicant; Ray Merry from Environmental Health; Joanna from Pitkin County; Dan Stanek from the building department; Peter Sulmeisters, projectmanager; and Dianne Mauriello, attorney are all present. Chairman Stone asked if there had been a request from a realtor as to whether or not this property w&uld need a special use permit. Mr. Simonton stated that in 1998 a letter was sent to the realtor who was trying to sell the property. It was related to the realtor that a special use permit would be required to operate a bird sanctuary. There is no proofthat the realtor informed the applicant of the situation. He clarified that it was the judgment ofthe Development Review team that domesticated animals includes birds and would recognize the scope of the Gabriel Foundation. Joanna Shaffner, Zoning Officer for Pitkin County was also present for the meeting. Terrell Knight, planner for the applicant, spoke to the board. He stated that he presented a notebook to staff in which answers to questions that have arisen were included. Mr. Knight stated that the first issue is Pitkin County - he stated that if the file is approved the applicant has committed to rectifying the issues with Pitkin County. The existing buildings happen to be in Eagle County. The issue of the Eagle County line is a state matter. He stated that if the line changed the applicant would be willing to live with the first condition for approval. He explained that Julie Murad was not able to be present due 7/13/2004 20 to health problems, but she had written a letter that is included in the packet. He stated that there is a history of compliance as opposed to non-compliance. Ms. Murad stated that she felt she had a valid operation and then applied for a Special use permit, after receiving a violation notice. Mr. Knight stated that he had been asked at the previous hearing to provide information and informed the board aboutthe proposed solutions, such as "highway sound barriers" to these requests. He spoke about the sound-proofing plan. He stated that there is no standard for sound barriers or sound walls or noise control. Commissioner Gallagher asked what was required for the site in question to solve the problem of the noise; a 27 foot wall or a 6 foot wall, etc. Mr. Knight stated that the applicant was proposing an architectural solution to the problem. Bruce Barth, project architect spoke to the board. He stated that the theory is to create a solid wall around the building envelope and to enclose the solid wall with a roof structure to focus the sound inward and contain it within the courtyard. Currently an buildings are open on all sides and the roofs are not insulated. Commissioner Gallagher asked whether the concrete barrier is no longer an option. Mr. Knight stated that concerning the existing building and following the recommendation of staff to bring it up to code immediately, the applicant is still willing to do so. He recommended that the operation move into the new building and then rectify the problems with the old building. The steel has been purchased and on- site already. The sittiationwith the outside cages being partly in the setback, they would move thOse first and insulate the backs and roof to bring cages into conformance imIl1ediate1y. They want to make sure that immediate life safety iSSUeS are met. . The building was built under a different building code. They are committed to meeting every condition and code that is in place today. ConSiderable dialog was had with each of the neighborS and personal discussions with the immediate neighbors. The septic system was analyzed and recommendations were received for increasing capacity. The applicant is willing to address the problems with the septic system immediately. He believes that the applicant has addressed all issues satisfactorily. The record of violation from Pitkin COUl1ty was in the applicant's file. Mr. Knight was. asked to and did provide a building permit site location for the cage. The regulations are different in Pitkin and Eagle County. The applicant had subIIlitted licenses and background for applicable licensing requirements. They have not violated those licenses; They would seek a special use permit as they have no alternative. Regarding the county line, he felt that Eagle COUl1ty and Pitkin County staff had addressed the issue. 'They have not claimed grandfathered use with the building code for the fOUl1dation. He stated that Coral Dillon is here and would like to speak about her efforts to speak to the neighbors about this operation. Coral Dillon, administrative assistant with the Gabriel Foundation, stated that she spent the better part of three days in January trying to contact neighbors about the operation. During the three days she only found one person at home, who had not yet decided about the issue. She stated that numerous people they spoke to in the neighborhood had indicated that they had no objection and many had no opinion. On January 9 and 10 she held neighborhood meetings about a mile away from the facility. Flyers were placed on each home and phone calls were made to attempt to inform neighbors about the meetings. Following the meetings she sent out 45 e- mails and 31 flyers inviting discussion and questions through e-mails, faxes, or visits to the office. Mr. Knight stated that this attempt to communicate with neighbors was made early in the application process. The original intent of the applicant is provided in letters to the board from the applicant. The foundation does not have a history of violation, rather of history of conformance. He wanted to discuss the recommendation for an independent sound study. The applicant is very willing to meet this condition. He spoke about the parking situation and that the applicant felt that 10 spaces would be more than adequate. The vast majority of the time there are fewer people there than 10 parking spaces coUld accommodate. He addressed the issues with the septic system and informed the board that very little water is used, but that the problems would be resolved. He spoke about the proposed schedule and the fact that he believes it is reasonable based on conversations with the builder. The builder stated that the outside cage work (sound barriers) could be done at the same time as the new building. He asked that the county be involved in a third party evaluation. COmIl1issioner Stone asked for public comment. There was none. He closed public comment. Commissioner Gallagher asked Joanna Shaffner from Pitkin County whether they considered this operation a kennel. Ms. Shaffner stated that they were willing to review the application as a kennel-with commercial use. Since the property is not conforming in size as a 10-acre parcel it could not be considered for commercial use. The flight cage is considered a structure that requites a zoning permit, but this permit was denied because the cage was in the setbacks. The use was being questioned. 7/13/2004 21 Mr. Simonton stated that this lot is also non-conforming for Eagle County because we require a 35-acre minimum for a resource parcel. Eagle County's schedules allow for a non-conforming lot to get a special use permit. Commissioner Gallagher asked Mr. Sulmeisters about the questionable location, although agreed upon, location of the county line. He asked if GIS couldn't determine the location of the line. . Peter Sulmeisters of Eagle County Engineering stated that the problem is in the definition of the county line. The Eagle County line goes to the north line of Pitkin County which goes to the south line of what was Summit County and 011 and on. County lines are determined based on the boundaries of the neighboring counties. What it would take to deterIIline the line is to establish a line with the cooperation of all counties associated, which would be a minimum of three, with this line and they would have to agree. The problem is that the line has never been established on the ground, and the description is vague. He went on to say that if counties would agree this type of resolution could happen. Commissioner Gallagher asked Mr. Merry to talk about the disposal of bird waste. Mr. Merry stated that the two issues had been resolved. The first is the waste water system problem and the solution would be a re-circulating waste water system that would knock out the nitrogen and bacterial contaminants. The rinse water from the bird cages is a very minimal amount. With the waste management and the way bitd wastes are captured, the hazard is greater to the employees than the public. The concern is psittacosis, a bird-borne disease, related to dry waste materials. The operating manual provides for wet cleaning processes to address this problem, and they bag and dispose of the newspapers that line the cages. Commissioner Gallagher asked about the fly cages and whether these would create a dry waste problem. Mr. Merry stated that wet methods for cleaning these cages would also be used in a similar manner. Commissioner Gallagher asked about comments from Basalt Rural Fire Department. Mr. Knight responded that his general comment about every standard and condition being met would cover these concerns. Commissioner Menconi asked Joanna Shaffner about the pattern ofthe Gabriel Foundation and their interactions with Pitkin County as far as cOlnpliance/non-compliance. Ms. Shaffner responded that the applicant waS red-tagged in 1998 when they were located in a veterinary clinic onHwy. 82. They were red-tagged because they had built a strUcture on the front yard without a permit, lOcated within the 200 foot highway setback and had expanded a nonconforming use. It was also an historic site, so there were compatibility issues. There were septic issues that were held to the property owners, not Gabriel Foundation. They were asked to vacate by October, 1999 and made representations that they would, and they did move within the time frame. She had not been aware that they had moved to the Emma site until recently, when this issue arose again. The applicants did not attempt to receive a permit for the outside cage. Commissioner Menconi asked about the relationship with the Gabriel Foundation. Ms. Shaffner stated that on the previous site, they were very compliant. Since last May, Pitkin County had sent 6 notices requiring that the cage be removed, but the applicant had not complied with these requests. The matter had been referred to the county attorney's office for further enforcement. Commissioner Menconi asked Mr. Knight and Mr. Simonton about the new conditions and how growth or limitations on growth could be addressed, if it was based on buildings or number of birds. Mi. Knight responded that the applicant had done planning to limit the number of birds, for a maximum number of 250. The perIIlit itself would represent the restriction. Commissioner Menconi asked who owned the property. Mr. Knight responded that the property is owned by Julie Murad and the Gabriel Foundation is on a portion of the property. Hal Dischler stated that the Emma property is owned by a trUst on both sides of the county line. Commissioner Menconi asked what would happen in 10-20 years with regards to scale and size of the business and the ownership of the business if a special use permit would be issued. Mr. Dischler stated that the Special Use Permit would be issued to the Gabriel Foundation, without respect to who the owner of the property is. Commissioner Menconi stated that his question is related to future size and scope and transferable rights related to the Special Use Permit. He wondered if a Monkey foundation would be allowed to have 250 monkeys. Mr. Simonton responded that the special use permit is tied to the land and is specific to the type of operation.' He emphasized that the permit included only 250 birds. The assumption is that the facility design will support 250 birds. Commissioner Menconi asked about future sale of the property and uses that would be allowed. 7/13/2004 22 Mr. Simonton stated that a kitchen such as this facility will have is typically associated with an accessory dwelling unit, which would require a special use permit. These issues would have to be worked out in the future or modified. Mr. Knight stated that this permit would be specific to the Gabriel Foundation. If they vacate the lot, the use would revert to those approved without special use permits. Commissioner Menconi asked about Ms. Murad's vision in the situation that she is unable to continue the operation. Mr. Knight stated that Ms. Murad is the guiding force behind the foundation. Her goal is to do this as proposed, and he is not aware of any backup plans. Ms. Dillon stated that the property in Emma is solely the location for the bird aviary, and the administrative offices are being moved to Denver. The major portion of the foundation is not near this property. She stated that there were 154 bitds when the commissioners visited the site, and they have not been to the 250 bird mark in the past 2 Y:z years. Chairman Stone asked Ms. Shaffner what the concerns of impacts from a commercial use on a non- conforming lot might be related to the type of land use regulations that Pitkin County enforces. Ms. Shaffner responded that parking, traffic noise, and neighborhood compatibility are the primary concerns. Chairntan Stone asked for clarification on Pitkin County's regulations with special use permits. Ms. Shaffner had suggested to the applicants that they attempt to amend the code to allow for this type of use, but the applicant had not done so. Chairman Stone walked the board through the fmdings. He began on page six and the first fmding related to consistency to master plan. The fmding was both plus and minus. He asked for clarification. Mr. Simonton stated that the fmding centered on the environmental aspects, but since Mr. Merry had stated that he was satisfied, the finding would be changed to positive. Commissioner Menconi agreed that it is a positive finding. Co:rrth1issioner Gallagher stated that the ideathatresource is a 35 acre parcel and rather than having advantage of the 7 acres, in fact what is available is a 1.5 acre lot, because Pitkin County is not available. He does not find that the density of this operation is a good thing and hence doesn't have a positive finding with relation to the master plan. Chairtnan Stone agreed that the use was too intense for the property. The next finding was compatibility. The staff noted that this was a negative. Chairman Stone asked whether this finding had changed. Mr. Simonton stated that this was a difficult finding based on the fact that there are other uses that produce noise-such as the agricultural activities and highway noise, but based on the unique, screeching noise that the birds make made it incompatible-but that an independent noise study might change this finding. CommiSSioner Gallagher responded that highway noise is not the result of land use. The compatibility he believes is beyond noise, but also refers to use as agriculture. Agriculture is livestock and he believes this is not agricultural, but that this is a kennel to take care of birds and not livestock He believes it is incompatible with surrounding land uses. Coirtn1issioner Menconi stated that he believes it is compatible whether there are chickens, macaws or love birds. He stated that with the amount of expense that would be required for noise mitigation the noise would cease to be a factor. Chairman Stone stated he agreed with Commissioner Gallagher and the Planning Commission and did not believe this was compatible with surrounding uses. This seems to be a more intense use. He noted that the sound expert, Western Slope Pro Audio Inc. used the word "unbearable". These experts stated that the business should only be conducted in a heavy industrial use area only. He felt that comparing the bird sounds to other types of audio is not reasonable. Zone district: had a positive finding and as such did not need discussion. Design minimizes adverse impact: Mr. Simonton stated that some of these concerns were centered on the noise and findings were based on the impact of these noises. Based on the noise report, this could be a positive finding. Commissioner Menconi found this as a positive. Commissioner Gallagher stated that it had a positive potential but at present was negative. Chairman Stone agreed with commissioner Gallagher. 7/13/2004 23 Design minimizes environmental impact: Mr. Simonton stated that the operational manual addressed these concerns but with Mr. Merry's testimony the finding would be changed to a positive. Commissioner Gallagher and Menconi concurred positive Chairman Storte concurred positive. Impact on public facilities: positive and no discussion. Site development standards: positive and negative findings. Mr. Simonton stated that the sensitivity on the parking is based on no availability for parking on the Pitkin County side for special eventS. The 10 spaces would be adequate most of the time. Handicap spaces and turnaround space for delivery trucks may have to be included. Environmental impact related to waste disposal can be positive. Noise and vibration standards lack verification from third party sources that they will work. Water quality standards, sanitary sewer, and drainage can be a positive based upon Mr. Merry's statements. Commissioner Gallagher felt this was negative because lack ofinfotrtlation from applicant about parking plan or a traffic flow sketch. There is a proposal but no expert opinion as to whether it would work. Commissioner Menconi was positive on this finding. Chairman Stone agreed with Commissioner Gallagher. The last finding, sight development standards, was positive and did not need discussion. Mr. Simonton stated that the building had not been reviewed by the fire department prior to the applicant knowing whether this would be approved; there might be additional issues, such as access issues and parking iSsues involved. Mr. Knight responded to the negative findings to which the board agreed. He spoke about consistency with the master plan: He stated that this is fraught with judgment and always is. He believes that it is compatible because these birds are judged to be domesticated animals in a zone district that has numerous domesticated aIl.imals, based OIl. a staff report in 1998. He acknowledged that owner should have gotiena special permit back in 1998. Chairman Stone told Mr. Knight that he couldn't use the staff report from 1998 selectively-that if he used it he would also have to accept the other information that was provided to the applicant in 1998 and that indicated a special use petIIlit would be required. Mr. Knight spoke of compatibility and that this is well under site coverage for almost all zone districts. They could actually build more on the site. Some comments concerned the design of the buildings; as they were agricultural in nature and not overwhelming in size. He felt the concerns had been addressed.. He highlighted the location ofthe cage and clarified that the applicant had agreed to move the cage to resolve the issue and meet the sound standard. The applicant has no desire to put a lot of money into the property to have it violate the noise standards again. He believes they ate compatible with surroUl1ding land uses. He believes the parking spaces are adequate as well, and they will live by the standards, even if it means no on-site tours. He spoke about truck turnaround and trash trucks and the fact that they would plan for these issues. They have tried to make the foUrtdation appropriate for the area. He believes that when the new building and sound barriers are in that the operation will meet the noise requirements. All onsite and offsite environmental impacts will be dealt with. He stated that he was pleased with the Planning Commission's findings even though the vote was against approval of the application. He believes that as a whole they have proven the appropriate and proper use for the area. Mr. Dischler spoke about the noise issue and wondered if getting a third party study would do any good. He wondered, if that study satisfied the two commissioners who were concerned about the noise, would they change their views to positive? Commissioner Gallagher stated that the lack of an acoustic expert's opinion is the reason that he had to maintain the finding as negative. Other lack of information from the applicant should not require the commissioners to find a positive. Mr. Dischler stated that if the file were continued so that these issues could be addressed it might be helpful. Commissioner Gallagher stated that he would consider tabling the application to some date certain if there were commitment on the part of the applicant to deal with the remaining issues. Chairman Stone stated that the noise isn't the only issue. He referred to page 5 of the request for supplemental information, and its consistency with the Master Plan. He wondered whether, if the Gabriel Foundation had gone about this in the right way without having had 6 violations, his decision would be the same. The sound question would probably have come up. The same expert opinions would have been requested. Hedread from the document that Mr. Knight provided the board, about the wide variety of animals accommodated by the area. He spoke about countryside land plans providing transition area between more densely populated areas 7/13/2004 24 and less densely populated areas. He spoke about the Mid Valley Community Plan's most important goal being preservation ofthe rural character ofthe Roaring Fork Valley. This goal is to be accomplished through a variety of policies such as encouraging agriculture, low light levels, clustered structures, and open space. He doesn't believe that this project is "Colorado rural in nature". He stated that he believes the Gabriel Foundation's work is wonderful but is in the wrong place. Mr. Knight disagreed with the incompatibility, as they meet many of the requirements, such as clustering and being 300 feet back from the county road with open space. Commissioner Stone stated that he is only looking at the Eagle County portion ofthe Roaring Fork Valley property. He doesn't think the neighbors are enjoying their right to quiet enjoyment. Mr. Dischler stated that this comes back to the noise issue and wondered if the noise were mitigated, whether the problem would be solved or not. "Sometimes new uses are permitted in zone districts that people didn't think of, and this looks like one of those scenarios." Chairman Stone spoke about the problem of setting a precedent in terms of opening the door to other future land use applications. He did not want to set this type of precedent. He also wants to be a good neighbor to Pitkin County. Commissioner Gallagher asked how the number ofbitds and capacity of250 was reached. Mr. Knight stated that this was based on full capacity for the existing and new buildings, and it was given to him by the fOUl1dation. Commissioner Gallagher stated that during the site visit he asked if there would be increase. He was informed that there would not be an increase, but based on today's testimony, the increase would actually be around 60%. He asked if the site plan and proposal was based on the 250 capacity and what happens when the foundation gets more than 250 birds. Mr. Knight replied that the proposal was based on that capacity. Ifthey get close to capacity, they would then seek other refuge for the bitds. Coral Dillon stated that the purpose of the foundation is not to increase the number of birds on site but to find homes for the birds that they do have. They came up with 250 based upon the buildings, cages, etc. In fact, they have been reducing the nUmber of birds in the past quarter. CdmIIlissioner Gallagher asked if there would be a problem if a condition of approval limited the number of birds to 160 or 170 birds instead of 250 birds. Mr. Knight stated he would have to speak with the owner about that condition. Mr. Knight stated that he would have to get together with Mr. Simonton to schedule an independent study related to the noise. The applicant tequested that the file be tabled to September 7, 2004. Commissioner Gallagher reminded the applicant that the concerns are more than simply the noise. Ms. Mauriello reminded the applicant about the fees and penalties that would continue to accrue as the notices and violations are outstanding. Commissioner Gallagher moved that the Board of County Commissioners at the request of the applicant table File ZSOOll0 Ul1til September 7, 2004 at a time to be determined. ComIIlissioner Menconi seconded the motion. The vote was declared unanimous. The final issue for consideration was related to the letter to Congressman McGinnis. Chairman Stone had requested this information from Congressman McGinnis related to information in various newspaper articles in the Eagle and Roaring Fork Valleys. Passage of the bill would only begin the public process. Commissioner Menconi stated that he spoke to Mike Hess at Congressman McGinnis's office and staff members at Congressman Udall's office. He is in favor of the concept ofHR 4700, but doesn't know what the tradeoffs are related to the bill. It is his understanding that the bill states that it allows the forest service to sell off certain parcels at an appraised value to raise funds to consolidate their operations. He asked if this was correct. Chairman Stone stated that he felt this was correct. . Commissioner Menconi wondered about the need for expedience but related that he is in favor of the concept of the bill. He offered a rough draft of a letter he would be willing to send out today. He provided copies to the board. Chairman Stone asked whether he could blend the two letters so that some of his initial points would not be missed; such as the fact that this wasn't a surprise and the concept behind the bill being innovative. He suggested that further work be done in the next week. Commissioner Gallagher requested that this be worked on prior to next Tuesday. 7/13/2004 25 COmIl1issioner Menconi asked about the remainder of the schedule. Chainnan Stone clarified the schedule and the need for the tour of Berry Creek. Commissioner Menconi stated that the process with Berry Creek has been "Hey, while you're at it...". He wanted to get a global perspective about all of the policies and plans going forward. He would like to commit to a solid total plan for the property. He requested the rest of the story with regards to Berry Creek. Mr. Cunningham stated that he could review the progress to date using a site plan from the consultant and Peter Bergh. He directed the Commissioners to the list included in the packet that they had been given. He thought it would be really good to know where the future day care and recreation facility would be located for planning purposes. Commissioner Menconi asked about the needs for the child care facility. Mr. Cunningham stated that they were currently reviewing 10 designs from various firms. As soon as one is selected the entire process would begin. It has all been budgeted already. Chairman Stone stated that the site plan had not been completed and the goal is to maximize the use of the site. Mr. Cunningham stated that the number one issue is getting direction from the Board on the site plan. ComIIlissionerGallagher asked staffto show the site plan here, at the meeting, for review. It Was agreed that the CommisSioners would go out to the site and get a presentation on site. There being no~urther busine~,stq,:pe brought before the Board the meeting was adjourned until July 27,2004. ~~-;(~'/? .<;>;;.'" '0 '(~~2:;"i ,~. .. -.c~-,/t/1 ,- \.'.. .:'"~'if;:t'!'Y--, ~ () ~._ Attest: .f ;'.!o<. ;:,. ';.,-,-":;::::..'~' ~ ~ Cler 0 the Board;",';;;;> . ;'::i' Chairman. . , ~.,g~,.iit;f:w:~;it1i'i!i-~" 7/1312004 26