BOARD OF ADJUSTMENT MINUTES MARCH 13, 2000

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1 BOARD OF ADJUSTMENT MINUTES MARCH 13, 2000 The regular meeting of the Routt County Board of Adjustment was called to order at 7:00 p.m. Board members Frank Roitsch, Trevor Robins, Tom Fox, Ken Solomon and Pam Bentley were present. Steve Moore and Steve Jones were absent. Chris Brookshire, Planning Technician was also present. Sarah Katherman recorded the meeting and prepared the minutes. Mr. Bert Appell, former Board of Adjustment member, made a brief statement of thanks to the Board, adding that he very much appreciated the time spent as a Board member. APPELANT: REQUEST: Francy Lundberg Variance to build on a non-conforming lot and bring an existing residence into conformance, pursuant to Section 5.6 of the Routt County Zoning Resolution. LOCATION: W1/2 NW1/4 NW1/4 of Section 33 in Township 7 North, Range 84 West. Following Mr. Fox's introduction and review of the Board of Adjustment process, Mr. Doug Waggoner, the contractor representing the appellant, outlined Ms. Lundberg's plan to build an attached garage onto the existing residence. The lot is non-conforming, and although the house was built in 1978, a non-conforming lot variance was not issued at that time. The garage will meet all required setbacks. Ms. Brookshire stated that she had received several phone calls regarding the petition, but they were mostly from people who mistakenly thought that the petition was for permission to build a new home. Once they were informed of the actual proposal, they had no concerns. Ms. Brookshire stated that she had no idea why a variance had not been granted when the building permit for the house was issued in There were no questions from the Board of Adjustment. MOTION Mr. Solomon moved to approve the petition to bring the lot into conformance, pursuant to Section 5.6 of the Routt County Zoning Resolution, with the following findings of fact: 1. The non-conforming lot was created legally (prior to adoption of Subdivision Regulations on August 7, 1972). The property was divided in The proposed structure will not create a public safety hazard. 3. The proposed structure will not create a public health hazard. 4. All other relevant requirements of the Zoning Resolution are met. The existing home and barn/garage meet setback requirements. This approval is subject to the following conditions: 1. The building shall comply with all applicable requirements of the Routt County

2 Environmental Health and Building Departments. 2. All other requirements of the applicable zone district shall be met unless a variance from those requirements is granted by the Routt County Board of Adjustment. 3. Construction of the proposed structure on this parcel of land shall be activated within one year or this approval shall become null and void. Ms. Bentley seconded the motion. Friendly Amendment Chairman Fox offered the friendly amendment to strike condition 3, given that the lot has been brought into conformance and the garage structure does not require a variance because it meets all other requirements. Ms. Bentley accepted the friendly amendment. Mr. Roitsch seconded the amendment. The motion passed 5-0, as amended, with the Chair voting yes. APPELLANT: Dennis and Monica DeMara REQUEST: Variance to build on a non-conforming lot pursuant to Section 5.6 of the Routt County Zoning Resolution. LOCATION: Lot 18, Steamboat Hills Subdivision, located at Whiskey Hill Lane. Mr. DeMara reviewed his plan to build a home beginning in the spring of He stated that the home would have a main floor of approximately 2000-sq. ft. and an unfinished basement of approximately 1800 sq. ft. The house will meet all of the required setbacks. Mr. DeMara stated that he had previously spoken with the neighbors, who indicated they were okay with the proposed placement of the home. Mr. DeMara stated that there is a watershed that runs through the property, but that no construction would take place in that area. He indicated the watershed on a plan of the property. Mr. DeMara stated that he would work with Mr. Mike Zopf, Director of the Environmental Health Department, to determine the exact location of the septic system and leach field. He stated that during run-off, the area in question contains approximately 6 inches of water and is dry the remainder of the year. Ms. Brookshire demonstrated where the swale is on photos of the site. She stated that she had visited the site, but could not determine much because of the snow. Mr. Roitsch asked about the concerns of the neighbors regarding the waterway. Mr. DeMara stated that he had chosen the proposed location of the house in response to their concerns. He also stated that he planned to dig a ft.-deep well, and that he did not think it should effect the watershed. In response to a question from Mr. Robins, Mr. DeMara stated that there were 4 or 5 houses built in the subdivision. He stated that they were on Lots 15, 17, 9, 19 and maybe 13. He reviewed the setbacks of the proposed home and stated that he had chosen to locate the well to the west of the proposed house because he was concerned 2

3 that if it were located on the east side of the lot the well might create problem for Lot 19. The well on Lot 19 is located to the east of Mr. DeMara's lot. Ms. Brookshire reported that she had received a request from one of the neighbors, Mr. Kish, that the applicant be required to have the setbacks checked by a registered surveyor, and that he protect the road bed during construction and repair it if any damage occurs. He also requested assurance that the well and springs in the vicinity would not be damaged. Mr. Fox asked about the road to the site. Ms. Brookshire responded that the road has been there for many years, but is only minimally maintained. She stated that the road is considered a public use road for emergency vehicles, but that is has not been dedicated to the County. She clarified that the road is privately maintained. There was some discussion of the status of a private road within a subdivision. Mr. Fox stated that although the issue is not applicable to the current petition, the Board of Adjustment should have the internal subdivision road issue clarified. Public Comment Mr. Lance Romick, owner of Lots 16 and 17, stated that his primary concern is the protection of the watershed and infiltration gallery known as Warren Spring #1. He read a letter that he had submitted to the listing broker of the property in April of 1996 regarding the existence of the watershed and stating that prospective buyers should be informed of this and other issues pertinent to the parcel. Mr. Romick noted that he shares the infiltration well with Mr. Rex Keller, who owns Lot 15. He stated that Mr. Tom Sharp, a water attorney, had stated that the source of the water for the well was legally protected 550 feet upstream from the well. Mr. Romick added that affluent waste is a great concern, particularly during spring run-off, and the location of the leach field on the property was of critical importance to the protection of the watershed. He also noted that there was no road maintenance agreement in place. The road, which is only minimally improved, lacks proper drainage. Mr. Romick presented to the Board aerial photographs of the property and demonstrated the location of the drainage and the natural catch basin into which it flows. He stated that any surface water in area collects in a surface well. The well consists of a 5' X 5' square block. Mr. Romick clarified that infiltration occurs both above and below the surface. He stated that he owns two thirds of the well and Mr. Keller owns one third. Mr. Romick stated that the turbidity and quality of the water was affected by Mr. Kish's recent construction on Lot 19. Mr. Romick suggested that a drainage ditch might be constructed to contain any contaminants and keep them from reaching the watershed. He stated that he is concerned not only with contaminants from the construction of the home, but also with home and garden contaminants such as pesticides, herbicides, cleaning products and petroleum products. He also suggested that if the homesite were moved slightly to the northwest it might be in a location off the ridgeline that would drain away from the watershed. He stated that he was unsure if this suggested homesite location would encroach on the required setbacks. 3

4 Mr. Romick stated that snow drifting on the site was apparent and offered that the proposed driveway location would be a headache for the DeMaras. Mr. Romick stated that he was also concerned with the location of the leach field, and suggested altering its proposed location. He summarized his requests that the homesite be adjusted to protect the quality and quantity of the watershed and that the leach field are located as far as possible from the drainage area. Mr. DeMara stated that he appreciated Mr. Romick's comments. He stated that he had worked with a civil engineer on the design of the proposed home to ensure that all drainage from the site would be diverted away from the watershed. He stated that he was somewhat concerned with the grade of the driveway that would be required if the homesite were moved as suggested by Mr. Romick. He stated that the site he has proposed is as far as it is from the road to minimize the driveway grade. Mr. DeMara stated that he had spoken with Mr. Zopf about the location of the leach field. He reported that Mr. Zopf did not think there would be a problem with running it parallel to the driveway. Mr. Romick noted that constructing the house would entail a considerable amount of excavation. He suggested that a straw berm might help to prevent sediment and other contaminants from entering the watershed during construction. He noted that Mr. Kish had not constructed any berms during the construction of his home, but added that he is not right next to the watershed. Regarding the availability of water, Mr. Romick reported that his property contains two dry wells and that Lot 19 also has a dry well. He advised Mr. DeMara to drill test holes, and added that because the area sits on rather difficult stratification, even at 500' there are often quantity problems. Ms. Carly Romick offered that she had found leeches in the field. Mr. Romick expressed concern that livestock and pets could also affect the drainage, and requested that all animals be kept away from the watershed. He noted that horses gravitate to the shade and will stand in water if they are allowed to do so. Mr. DeMara stated that the entire property had once been used for agricultural purposes. In response to a question from Mr. Roitsch, Mr. Romick stated that the turbidity and taste of the water were affected for approximately 4-6 months as a result of the Kish construction. Mr. Romick reported that he had put in a holding tank on his property, approximately 12' down. He stated that it was alluvial cobble down that far and that there was a great deal of clay throughout the site. He stated that the clay is what caused him to be concerned with the outcome of the perc tests. He expressed concern that the affluent would stay just below the surface and follow the topography down the drainage and into this water source. Board of Adjustment Comments Mr. Fox noted that the request is for a variance to build on a non-conforming lot and that there are other agencies that have jurisdiction over issues of sanitation and water 4

5 resources. He added, however, that criterion #3 concerning health hazards must be considered. He stated that the Board of Adjustment couldn t anticipate what would occur on the property after the fact, especially with regard to livestock. He noted that there is no way for the Board of Adjustment to restrict such uses. Mr. Roitsch expressed agreement, stating that the sole responsibility of the Board was to decide whether or not to grant a non-conforming lot variance and that the proper agencies should address the other issues. He noted that the appropriate professionals should handle the water and sanitation concerns. Mr. Solomon stated that he was sympathetic to the concerns of the neighbors regarding their water supply, but stated that the Board could not recommend that the homesite should be moved into the setbacks, as that would result in its not meeting all of the other requirements stated in the Zoning Resolution. If the homesite were moved such that it encroached into the setbacks, the applicant would have to re-apply. He also noted that Mr. Zopf had not indicated that a health hazard exists, and offered that the suggested conditions seem to address this concern. He reiterated that the primary purpose of the Board of Adjustment is to determine if the non-conforming lot application can be approved within the guidelines stated in Section 5.6 of the Zoning Resolution. Mr. Solomon stated that the application seems to fit within the requirements. With regard to criterion #3, Mr. Fox offered that the Board of Adjustment must rely on Mr. Zopf's letter indicating that the structure will not create a health hazard. He indicated that this issue should be put in Mr. Zopf's hands and that to deny the petition of the basis of criterion #3 would be to overrule Mr. Zopf. Mr. Solomon agreed. He noted that there are septic systems uphill from wells through out the County, although he acknowledged that it was probably not a good idea. Ms. Bentley agreed with the previous comments. She added that if he so chose, Mr. DeMara could opt to table the petition in order to consider adjusting the building site, but emphasized that the decision was his. She stated that if approved, the site would be subject to the plan as presented at tonight's meeting. Discussion Ms. Brookshire stated that the suggested condition to which Ms. Bentley referred could be changed. She asked whether the Board would approve the variance request if no site plan had been submitted. Mr. Roitsch replied that he would approve it, as did Mr. Solomon, who suggested that in that case conditions #4 and #6 might not even be valid conditions of approval. Ms. Brookshire stated that conditions # 5 and #6 had been suggested in response to the memo from Mr. Zopf and some concerns regarding possible erosion on the site. Mr. Roitsch suggested that the conditions could be changed from requirements to recommendations. Mr. Fox noted that sometimes too much information makes decisions more, rather than less difficult. Ms. Brookshire reported that when plans come through the Planning Department, they are checked to make sure that all setbacks are met, including the 50' waterbody setback. She stated that the swale could be considered a waterbody because it runs more than 60 days per year. She explained that if Mr. DeMara had a non-conforming 5

6 lot variance and later came in with his plans, which meet all setback requirements, his plans would be approved without a further hearing. If the plans indicated that the house were going to encroach within the setbacks, then the neighbors would all be informed and he would have to return to the Board of Adjustment for an additional variance hearing. In response to Mr. Roitsch's suggestion that it might be best to treat the application as if it had been submitted without plans, Ms. Brookshire stated that although she was sympathetic with the neighbors' concerns and acknowledged the importance of water related issues, it must be taken into consideration that the application is only for a variance to build on a non-conforming lot. Mr. Solomon stated that the regulations seem to indicate that a variance can only be granted with regard to a specific set of plans. He cited the Zoning Resolution. Ms. Brookshire suggested that there was an exception to this in Section 5.6. Mr. Robins stated that the application seemed in order with regard to the regulations and should be approved, although it may cause some difficulties for Mr. Romick. In response to a question from Mr. Fox regarding a well permit, Mr. DeMara stated that because well permits are only valid for one year, and they do not plan to begin construction until next spring, they have not yet applied for the permit. He added that they planned to apply for all of the necessary permits this summer, and the soils analysis will be completed as soon as possible this spring. Mr. Fox stated that the water issues and the adjudication of the well might be taken up with the Colorado Division of Water Resources. He noted that it was appropriate for the issue to be addressed by the authority that has jurisdiction over well related issues, particularly when the Board has received a letter from Mr. Zopf indicating that the proposed site plan could work. He suggested that the only thing the Board of Adjustment had to work with was the safety hazard criterion. He also noted that the well permit might not be granted. He clarified that even if the lot were brought into conformance, there is no guarantee that the other required permits would be granted. He emphasized that a Board of Adjustment approval should not create any assumptions on the part of the applicant regarding possible approvals or denials by other agencies. Mr. Roitsch asked if an approval of the non-conforming lot variance must specify that the site plan remain as presented, or whether there was a way to leave the site plan open to adjustment. Ms. Brookshire replied that the site plan could be left open and noted that the DeMara's had some room for adjustment within the required setbacks. Mr. Fox suggested that in order to allow some flexibility in the approval, condition 4 might specify that neither the house nor the leach field could be moved any closer to the drainage than currently planned. He also suggested that, with Mr. Zopf's approval, alterations in the site plan that moved the house farther from the drainage could be approved administratively. Ms. Brookshire clarified that the condition could require the applicant to return for an additional approval if the house or leach field is moved any closer to the drainage. Alterations in the other direction would not require any further 6

7 approval if all the required setbacks would still be met. MOTION Ms. Bentley moved to approve the request for a variance to build on a non-conforming lot, pursuant to Routt County Zoning Resolution Section 5.6, with the following findings of fact: 1. The non-conforming lot was created legally (prior to adoption of Subdivision Regulations on August 7, 1972, or by exemption approval of the Board of County Commissioners). Steamboat Hills Subdivision was created in The proposed structure will not create a public safety hazard. 3. The proposed structure will not create a public health hazard. 4. All other relevant requirements of the Zoning Resolution are met. The applicant plans to comply with all other requirements of the zoning resolution. This approval is subject to the following conditions: 1. If approval is granted, the footprint and the leach field cannot be moved closer to the water source than what is indicated in the application with Board of Adjustment review and approval. 2. The building shall comply with all applicable requirements of the Routt County Environmental Health and Building Departments. 3. All other requirements of the applicable zone district shall be met unless a variance from those requirements is granted by the Routt County Board of Adjustment. 4. Construction of the proposed structure on this parcel of land shall be activated within 18 months or this approval shall become null and void. 5. During construction of the driveway, house and associated amenities, the applicant shall comply with the Routt County Guide to Water Quality Protection and Erosion Control. Mr. Robins seconded the motion. Friendly Amendment Mr. Fox offered a friendly amendment to add "provided proper engineering" to finding of fact 3. Mr. Solomon suggested that this would be a more appropriate addition to the conditions. Ms. Bentley suggested that this issue was already covered by the conditions of approval, but was amenable to adding the increased specificity. Mr. Roitsch agreed with Mr. Solomon that the addition was more appropriate to the conditions. Mr. Solomon asked how far it was appropriate for the Board to go. He expressed confidence that Mr. Romick would take his concerns to the Colorado Division of Water Resources. He also noted that Mr. Sharp had indicated that Mr. Romick may be able to protect the water source, and that that might be a subject of discussion between he and Mr. DeMara. Mr. Solomon stated that in granting approval of the non-conforming lot variance the Board of Adjustment must allow the other authorities, which have jurisdiction over the water issues, to deal with the problem. Mr. Fox clarified that he was trying to add the requirement that the Colorado Division of 7

8 Water Resources must be consulted, although he too was confident that Mr. Romick would do this. Mr. Solomon suggested that, if approved, staff would notify the Colorado Division of Water Resources of the concerns of the Board of Adjustment regarding Warren Spring #1. Mr. Fox added that this should be done prior to the submittal of a well application. Ms. Brookshire stated that she was uncertain how such a requirement would reflect back to staff regarding a building permit sign-off. Mr. Fox suggested that the 1996 letter Mr. Romick had quoted could be included as an exhibit to the approval. Mr. Fox stated that the well permit application requires the identification of the nearest watercourse. He expressed concern that the State might issue a rubber-stamp approval for this application without thorough consideration. Following further discussion, Mr. Fox withdrew his friendly amendment to add a reference to the Colorado Division of Water Resources. The motion passed 5-0, with the Chair voting yes. ADMINISTRATIVE REPORT Ms. Brookshire reported that the legal staff has been very busy, and had not had a chance to follow-up on the requests that had been made at the recent retreat. She also reported that the uncompleted landscaping issue would probably be handled through code enforcement, but she was not yet certain how the landscaping condition would be enforced. Mr. Solomon requested that staff verify the definition of a public roadway and clarify the requirement for specific plans stated in Section G relates to Section 5.6 regarding non-conforming lots. He also asked for a clarification regarding the setbacks required from private roads. In response to a question from Mr. Fox, Ms. Brookshire stated that although Mr. Robins has agreed to remain on the Board, his position is being advertised in the paper because he took over Bert Appell's spot. 8