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Land Use Code Comments

Introduction

Public Comment on the County Land Use Code is the first item on the agenda of the monthly joint work session of the Board of County Commissioners and County Planning Commission. The work session is normally held on the second Wednesday of each month beginning at 6:00 PM in the County Commissioners Hearing Room, 200 West Oak Street, Fort Collins. However, scheduling conflicts sometimes result in different work session meeting times, so citizens are advised to call the County Planning Department (498-7683) to confirm the work session date.

The process used by the County to receive and consider these comments on the County Land Use Code is as follows:

• Citizens are asked to be brief and to the point-to state what the problem/concern is that they have with the County Land Use Code or what they would like to see the Code do more of, and their suggested changes if they have them. This citizen comment portion of the BCC/PC work session agenda is intended to last 30 minutes maximum so the other agenda items can also be completed. When a citizen makes a comment, this is considered Stage 1 of the process.
• Board of County Commissioners/Planning Commission members may ask questions of the citizens for clarification.
• If the problem/concern has already been addressed by a Code amendment, the citizen will be so informed at the meeting.
• The problem/concern or the suggested code change will not be discussed by the BCC/PC at this time. Instead, staff will research the matter and bring back a draft County Response (Stage 2) at the next BCC/PC work session, or as soon thereafter as staff resources allow. Following direction from the BCC/PC at this second work session, staff will present the final County Response (stage 3) to the comment at the following BCC/PC work session.
• No additional citizen comment will be taken by the BCC/PC at the Stage 2 or Stage 3 discussions. The Stage 2 and Stage 3 discussions are intended to formulate a County Response to a comment, not to take more citizen input.
• Citizens making comments are advised that they should call the County Planning Department (498-7683) to find out the date of the BCC/PC work session at which their comment will be discussed (Stage 2 or 3).
• Citizens may call the Planning Department or check the County's website (www.larimer.org/planning) for the final County Response.

Citizen Comments and County Response

Citizen Comment:

Lyle VanHorn recommended that the Land Use Code be amended to allow land divisions for family members without having to go through the Land Division Process outlined in the Code and the County should not apply wetland regulations to land that is not under the jurisdiction of the federal government. (June 4, 2002 BCC/PC work session)

County Response:

In 1972 the governor signed Senate Bill 35 which is the state statute that deals with subdividing property. In part, that statute gave the County Commissioners the authority to "exempt" property from the definition of subdivision. From 1972 to 1985 we had regulations that addressed these "exemptions". The original intent, as we understand it, was primarily to allow land divisions for family members. Since we are obligated to apply all regulations equally to all property owners, the intent of the original regulation was lost. For several years we approved more lots through the "Exemption" process than we approved by actual subdivision. The "Exemption" lots were approved without any significant review and we created many problems with access, drainage, utilities, schools and other factors that get addressed in the land division review process.

In 1985 the Commissioners approved a new process called a Minor Residential Development. This process allowed the creation of up to four lots through an "Exemption" process. This process required a more detailed review of each proposal but it did not require a recommendation by the Planning Commission. The original intent was to make it easier for families to divide property but there is no basis in the law to require the lots to be transferred only to family members. The real estate community used this MRD process to create many four lot "subdivisions" without the detailed, comprehensive review necessary to address transportation, drainage, access, schools and other health and safety issues. Doing one four-lot MRD in a neighborhood probably has little impact on the area but several of these projects in the same section can have as much, or more impact, on a neighborhood as a large subdivision.

When we discussed the Land Use Code with the Planning Commission and the referral agencies, such as utilities, schools, etc. we determined that a comprehensive review of all land divisions is really necessary given the rapid growth and development of Larimer County. New lots originally intended for family members will, in all likelihood, eventually be sold to non-family members. The issues surrounding land divisions (traffic, drainage, utilities, etc.) have nothing to do with who owns the land. To accomplish this level of review the County Commissioners decided that all land divisions would be treated equally and would be subject to the same process, whether the application is for two lots or two hundred lots. Larimer County is sympathetic to the plight of farmers and families who want to provide for family members but there is the larger issue of providing responsible review of land divisions that affect all the residents of the County.

Wetlands are a natural resource, identified in the Master Plan, that must be protected. We included the definitions used by the Army Corps of Engineers and the Fish and Wildlife Service. The County commissioned a study by a recognized expert from Colorado State University to identify wetlands and help write the Code language. The wetland regulations are based on sound scientific research and are the minimum standards necessary to protect the resources. It was determined that having local control is better than relying on federal agencies to dictate how we will deal with the resources that are important to the citizens of Larimer County.

County staff directed to take no further action on this matter. (July 10 BCC/PC work session)

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Citizen Comment:

Richard Norris asked why detached guest quarters are not allowed and if there was any input from property owners when the Code was written.

(June 4, 2002 BCC/PC work session)

County Response:

Guest quarters have been a code enforcement issue for many years. Too many of these facilities have been converted to rental properties over the years. Having what amounts to a second dwelling on a lot basically doubles the density in a given area and is contrary to the intent of zoning.

The Code was adopted after several years of discussion. There were land use symposiums attended by hundreds of landowners before the Master Plan was adopted. The Code was redrafted several times after numerous meetings in various locations around the County. We heard that folks wanted to be able to provide for guests and family members but they understood the problems associated with detached structures for this purpose. With this information the County Commissioners approved the Guest Quarters regulation. The thinking was that if an addition to a dwelling was permitted with a separate living area, it would be less likely that the guest quarters would become a rental. Having one main entrance and having the guest quarters in close proximity to the rest of the dwelling is a good compromise that allows guests to be accommodated with less probability of a rental situation. The Guest Quarters regulation is in some ways less restrictive than the old Zoning Resolution that allowed Guest Houses. Guest Quarters can have a kitchen which makes it better for family members who want to be on their own but still have the security of family close by. We never allowed kitchens in Guest Houses because of the rental situation but it is no mean trick to add a microwave and a hot plate and create a kitchen after the structure is built and inspected.

Amending the Code to allow guest houses would require much discussion and a public out reach program that would require many meetings and a lot of staff time. The issue would have to be prioritized by the Planning Commission and the Board of County Commissioners.

County staff directed to take no further action on this matter. (July 10 BCC/PC work session)

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Citizen Comment:

William Kipp expressed concerns about the short term rental of a single family dwelling in his neighborhood. He has filed complaints with the code enforcement officer and has been told that short term rentals are not permitted. Now the County Attorney has interpreted the Code to allow short-term rentals. How can this happen? (June 4, 2002 BCC/PC work session)

County Response:

Code enforcement is often not an exact science. Definitions and regulations often must be interpreted based on the circumstances. When Mr. Kipp was informed that short-term rentals are not permitted, that information was based on the interpretation that had been used for many years. The interpretation was that the Code did not allow short-term occupancy of single family dwellings. This was based on the definitions of "dwelling, single family" and "resort cabin". The interpretation had never been tested in court so we kept using it. We discussed the interpretation with the County Attorney who indicated that we should probably consider some Code amendments if we want to prevent short term rentals but the current Code language would not work. Amending the Code to prevent short term rentals would involve a significant public out reach with a lot of meetings and staff work. The issue would have to be prioritized by the Planning Commission and Board of County Commissioners.

Following later discussion, the Board of County Commissioners directed staff to draft and propose amendments to the Land Use Code that would clarify that short term rentals of single family homes are allowed. (July 22, 2002)

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Citizen Comment:

Col. V. H. Wilson wrote a letter that was presented by Commissioner Bender. The letter raised the issue of requiring recreational vehicles located in RV parks to be currently licensed and readily movable. These requirements lead to expenses for insurance and repairs to make the RV's road-worthy. Col. Wilson feels this is an unreasonable requirement for folks on limited incomes that choose RV living. (June 4, 2002 BCC/PC work session)

County Response:

Vehicle registration is a state requirement. Since RV's are intended to be occupied on a short-term basis and are also intended to be operated on the highways, registration should be required. A small portion of the registration fees comes back to the County to be used for County services. Requiring registration is not intended to fill the County coffers since the amount that comes back to the County is very small. The state requires insurance before a vehicle can be registered so this issue needs to be directed to the state.

In RV parks the intent was always to permit short term occupancy. They are reviewed and approved according to standards that are crafted to address the issues of short term occupancy. Larimer County never intended to permit long term or permanent occupancy of recreational vehicles. We amended the Land Use Code at the request of RV park owners and some long-term residents to allow longer term occupancy. The recreational vehicles need to be readily mobile in the event of an emergency such as a flood or fire. The design of RV parks and the high density occupancy makes it necessary to address emergency concerns. Mobility is the best way to address these concerns.

County staff directed to take no further action on this matter. (July 10 BCC/PC work session)

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Citizen Comment:

Tom Bender, on behalf of Janet Michaud, asked how the Sign Code dealt with the current signage at a residence on Hwy 287 south of Fort Collins pertaining to abortion. (July 10 BCC/PC work session)

County Response:

The Sign Code allows a sign of up to 15 square feet in the FA-1 zoning district. The Sign Code infers that the allowed signage is for identification purposes (Sec. 8.7.3.F) only. The staff's work program includes initiation of work on Sign Code improvements this Fall. Staff is directed to take no further action on Sign Code amendments at this time, but include that work in the larger Sign Code improvement project beginning this Fall. (August 14, 2002)

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Citizen Comment:

William Kipp asked how a single family dwelling gets converted to a Bed and Breakfast or a Resort Cabin. How will the County deal with existing situations? (September 11, 2002 BCC/PC Work Session)

County Response:

"Bed and Breakfast" and "Resort Cabin" are uses listed in certain zoning districts with limitations on the use which determine if the use is allowed by right or needs to be approved through a process, such as, Special Review. If an existing dwelling is located in a zoning district that allows the use by right the property owner would need to do a Site Plan Review to determine if the property can meet the technical standards in the Land Use Code. If the Site Plan is approved the property owner may need to obtain a building permit if there are modifications needed to accommodate a use where the public is invited to the property. There may be requirements under the Americans with Disabilities Act (ADA) or other building code requirements. If the use requires Special Review, approval must be granted by the County Commissioners before Site Plan Review or a building permit could be approved.

As a result of the County Attorney's interpretation of "Short Term Rentals" based on the current language in the Land Use Code we are contemplating amendments to the Code to make it clear that a single family dwelling can be rented on a nightly or weekly basis. The amendments may also include modifications to the definitions of "Resort Cabin" and "Bed and Breakfast" to make them consistent with the interpretation.

Existing, legal uses cannot be eliminated by a change in the Land Use Code. If a use was legal before we amend the Code but is no longer permitted as a result of the amendment the use becomes non-conforming. Section 4.8 of the Code addresses non-conformities. Non-conforming uses are allowed to remain in place but they cannot be expanded, extended or changed in character without a variance approved by the Board of Adjustment. If the use is subject to Special Review we would not recommend that a variance be granted but instead the use should come into conformance by obtaining Special Review approval. (October 9, 2002 BCC/PC Work Session)

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Citizen Comment:

William Kipp asked if Special Review is required for a single family dwelling in the O-Open Zoning District to use the property for a use that requires Special Review. (October 9, 2002 BCC/PC Work Session)

County Response:

Yes: The Land Use Code specifies that require Special Review approval in the O-Open Zoning District. (November 13, 2002 BCC/PC Work Session)

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Citizen Comment:

William Kipp asked what criteria have been applied to require Special Review for the conversion of a single family dwelling to a resort cabin in the Big Thompson Canyon in the last 36 months? (October 9, 2002 BCC/PC Work Session)

County Response:

There have been no conversions of single family dwellings to resort cabins in the Big Thompson Canyon in the last 36 months. Had someone applied to do so, the review criteria would have been those listed in Section 4.5.3, Review Criteria for Special Review. (November 13, 2002 BCC/PC Work Session)

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Citizen Comment:

Evelyn King raised an issue with setbacks and the current process for granting variances. The occurrence of most concern is where setback distances from creeks and roads are such that all homes along the creek or road are considered nonconforming. This means that any citizen wanting to make improvements to their property are essentially "punished" by the requirement that they must pay a fee and go through the setback variance process. They may also have to pay to have documents prepared and they incur unnecessary time spent with staff, as well as, their attendance before the Board of Adjustment. I want to believe that the Code requirements are in place to add value to the community; however, I find these particular requirements to be much more punitive than enhancing which probably "invites" individuals to avoid the process altogether, and may result in discovered zoning violations down the road.

My proposed solution if to change Section 8.17.3 to read:

"The Planning Director may grant minor variances in writing from setback requirements whenever the variance is no greater than the current nonconformance, or up to 90% of the required setback, after finding the proposed setback is consistent with the intent and purpose of this Code. The Planning Director's decision may be appealed to the Board of Adjustment."

It should be noted that the Planning Staff may propose denial of any variance they do not feel meets the intent and purpose of the Code and my proposal has no impact on when that is done.

Staff may want to change Section 4.6.1 Purpose (Zoning Variances) to include something about nonconforming situations, since the Code appears to have been written primarily from the new development point of view.

I hope you can find a way to get this change through quickly and for the County to end this particular form of punishment upon those citizens who simply want to improve their property. (January 30, 2003 BCC/PC Work Session)

County Response:

Setback requirements are not adopted to punish anyone. Setbacks are intended to address issues of safety, for the property owner as well as the motorists, aesthetics and future right of way needs. The Code includes some allowance for additions to buildings that do not meet current setbacks, as well as, a minor variance procedure through which the Planning Director can grant up to a 10% variance.

Setbacks from County roads and state highways are related to the classification of the road. Higher classifications require greater setbacks because of anticipated traffic volumes, traffic speeds and the need for wider right of ways. There may be some standards we could adopt to grant more relief administratively but staff would not recommend any situation where the setback variance is up to 90% of the required setback. This would put the building in the right of way.

This is an excellent topic for future work sessions with the Planning Commission and County Commissioners. With the help of the Engineering Department, we should discuss the alternatives and how they might affect the adopted Transportation Plan. Engineering has some criteria they use when making recommendations on proposed setback variances. These criteria might help develop Code amendments to address the concerns raised above. This item will be included in the list of potential Code amendments to be discussed at future work sessions with the Planning Commission and Board of County Commissioners. (March 25, 2003 BCC/PC Work Session)

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Citizen Comment:

Evelyn King presented some concerns about Guest Quarters, Section 4.3.10.F.

History:

1. Guest Houses were listed a Uses by Right in the original Zoning Book.
2. Recent changes allowed guest quarters in basements and added language regarding the required fees.

As Accessory Structures and Uses, Guest Quarters are currently appropriately subordinated from the Main Structure by the 40% square footage limitation.

There is significant confusion about the meaning of two requirements for Guest Quarters:

1. What exactly is meant by the words, "providing one main entrance"? All single family dwellings typically have one main entrance, as well as other entrances. I do not believe it is the intent of the Code to force guests through "one main entrance".
2. What exactly is meant by the words, "must be connected by an enclosed passageway"? If a breezeway is constructed can it be considered enclosed if the upper roof structure includes and enclosed area? It is not believed that the intent of the Code is to force one specific architecture feature at the exclusion of other, perhaps better, possibilities.

With those thoughts in mind, I propose the following changes:

1. The single family character of the structure must be maintained by providing one set of utility meters and one address for the property.
2. 2. An addition to an existing single family dwelling to accommodate guest quarters must be architecturally compatible with the existing structure. Guest quarters may be placed in the basement area.

(January 30, 2003 BCC/PC Work Session)

County Response:

Guest Quarters is a new concept for Larimer County. After working with the regulation for three years it is time to review this part of the Code. This item will be included in the list of potential Code amendments to be discussed at future work sessions with the Planning Commission and Board of County Commissioners. (March 25, 2003 BCC/PC Work Session)

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The following comments are from the Land Use Code Citizen Technical Monitoring Committee Report.

All comments were made at the January 20, 2003 BCC/PC Work Session and the County Response was made at the March 25, 2003 BCC/PC Work Session.

Category 1 - Policy / Procedure:

Comment:

Subdivisions: Section 21.1d Violations:

...buyer must resolve violation

Clarify "buildability" - offer a definition to "buildability" and "legal parcel" (legally subdivided).

Committee - The County Code and website should probably identify what agency is responsible for regulating real estate fraud and offer a phone number or way to reach that agency.

County Response:

State law defines the term "subdivision" and County regulations are based on the state law. The County does not "require" the buyer to resolve anything. A person who buys an illegal parcel has a number of options ranging from suing the seller to attempting to get approval through the County subdivision process. When it is clear that the buyer did not intend to subvert the subdivision regulations the County Commissioners have allowed an application to be submitted for a minor review process, such as a Minor Land Division, to legally create the lot.

The Land Use Code includes a definition of "legal lot" that is based on state law and previous and current subdivision regulations. Buildability has many factors involved including slope, flood plain, geology, setbacks, access, etc. which are too numerous to include in a definition. An illegal lot is not buildable because the County would not issue a building permit in that situation.

Information about other enforcement agencies is not appropriate in the Land Use Code. The County Commissioners or County Manager should be consulted to determine what information they think is appropriate on the County web site.

Comment:

Why does the County recognize a parcel as "legal" for tax purposes, but not for subdividing and building permits? Title companies should offer "legal lot certifications"...

County Response:

The County Assessor is obligated under state law to track the ownership and value of each parcel or lot for the purposes of assessing property taxes. If a deed is properly executed and recorded, the Assessor will process the deed without determining if the lot is legal or not. The Planning Department is charged with the enforcement of the state subdividing law and we are generally unaware of the property transfer until someone applies for a building permit. There is not sufficient staff for the Planning Department to review every deed that is recorded in the Clerk's office. The Planning Department offers a "legal lot certificate" for a fee of $50 to cover the cost of the staff time for research. The County cannot require title companies to offer a service which they are not qualified to perform. Legal lot determination is ultimately based on state statute, the Land Use Code and an opinion from the County Attorney.

Comment:

Don't punish the victim of real estate fraud...

County Response:

The County does not seek to punish anyone. We have obligations under the state statutes to adopt and enforce subdivision and zoning regulations. We cannot ignore the fact that a lot is created illegally, while at the same time processing applications for subdivisions that are submitted pursuant to the regulations. We try to make the process as simple as possible but we need to have certain information submitted for review.

Comment:

Assessor's plats / records should be noted as not necessarily legal representation of a legal lot...is there some type of disclosure that can be made?

Committee - a disclosure on all assessor plats seems to be a good way to keep the county out of trouble and would make good customer service sense.

County Response:

The Planning Staff has discussed this issue with the Assessor. A disclaimer has been added to the information that can be printed from the Assessor's Tax Information available on the County web site. The Assessor has posted notification signs in the office to indicate that all parcels may not be legal building sites. Adding a disclaimer to the Assessor's maps is being discussed.

Comment:

Mobile Home Section 18.2.1 a & b:

Additions required before C.O.??? How can one accomplish this?

Committee - The Mobile Home Section of the Code is an area that needs great discussion and consideration. We understand that this is already on the staffs' radar screen

County Response:

Staff agrees that the manufactured home section of the Code (Section 18) needs to be revised and updated. The referenced sections are the result of a Board of Adjustment decision made in 1970. Folks have been complying with the requirements ever since, so it can be done. The additions are only required on single wide models so one can avoid the requirements by buying a double wide or modular. The additions are required primarily for aesthetic reasons. Having a pitched roof, shingles and some sort of siding other than aluminum sheeting, along with some area added to the structure, gives the appearance of a dwelling rather than a mobile home. The actual Board of Adjustment decision was on an interpretation request which asked, "When is a mobile home not a mobile home?" The Mobile Home Resolution in effect in 1970 and the current Land Use Code indicate that mobile homes (single-wide Manufactured Homes) should be located inside mobile home parks. The Board of Adjustment was basically saying if the unit complies with the standards they established, it is no longer a mobile home and does not need to be in a mobile home park.

Comment:

Minor applications:

Why so much paper required for minor applications? (35 sets of copies for example). Can this be streamlined?

Committee - Does the County have the ability to accept electronic files yet? If so, can a customer be given the option to file their plans electronically instead of making all of those copies?

County Response:

The number of copies of an application is driven by the number of referrals that must be sent out, not by the type of application. The Planning Commission and County Commissioners expect referral comments on applications. The referral process is partly driven by state law but primarily done in order to carry out a thorough review of the proposal. If we don't send out adequate information to referral agencies how can we expect them to comment?

The County is not currently set up to accept electronic applications. We are constantly upgrading and revising our application processes but we do not have a time table for adopting such a system. If we accept electronic files we would have to reproduce the number of hard copies needed for the referral process. This would require more staff and a larger printing budget. Very few of the referral agencies are able to accept electronic referrals. Until they are, we need to have sufficient copies submitted to meet the referral requirements of the Code.

Comment:

Concern over what happens a in Larimer County and how it adversely affects properties that border on County boundaries:

For instance, the change from 1du/20ac to more dense allowances like 1du/2ac...

Creates a negative impact especially on Agricultural uses and rights. Does Larimer County have a "right to farm" clause that could be included on plats?

Committee - This is an instance of an "unintended consequence" that affects neighbors of Larimer County properties and could cause farms and ranches to be most negatively impacted. The "small lot mentality" or "urban versus rural mind set" that is supposedly carried with many home buyers when they buy a "ranchette" or a developer proposes a clustered subdivision adjacent to a large farming or agricultural operation. We would like for the Board of Commissioners and Planning Commission to be aware of this issue and discuss it further.

County Response:

Larimer County has, for several years, included all sorts of disclaimers on subdivision plats. Notes concerning odor, flies, dust, noise, etc. from agricultural operations have been consistently noted on plats. Now these notes also appear in the disclosure notice that is recorded with every plat. This issue has been discussed repeatedly over the years. When we have zoning that allows agricultural uses and residential uses in the same district, conflicts are built into the system. One property owner has a site zoned FA-Farming and feels he has the opportunity to subdivide for residential lots and the neighbor, also zoned FA-Farming, feels he has the right to farm his land. Both are correct. There is no unintended consequence but rather it is left unaddressed due to the basic principle of leaving the County zoning as it is.

Comment:

Dual Access requirements for subdivisions (>600' streets) not appropriate on the "plains" of the eastern County.

County Response:

Is this an issue of connectivity or emergency access? This Comment came up in the series of Code amendments discussed several months ago. The consensus of the Planning Commission and County Commissioners was to leave the standard in the Code and make a determination on a case-by-case basis. There are issues of public safety, efficiency of building a road system and convenience of travel for residents of the area and service vehicles.

Comment:

Section 5.2.5 Applicability of density:

When public utilities are available...is unwritten (example "O" versus "FA1")...can we create "transitional densities"?

County Response:

Density is determined by zoning. Some zoning districts allow more density when certain utilities are used by a development. Changing density would require a rezoning or an amendment to the current zoning districts. Staff was instructed, at the outset of the Code adoption process, to leave zoning alone. It would probably take an amendment to the Master Plan before a change in zoning or zoning districts could be considered.

Comment:

Expansion of Cluster Development guidelines: A suggestion was made that Larimer County look at the way Gunnison County's Large Parcel Incentive Process works on site-sensitive areas...allowing for more than one cluster within a site to address unique characteristics that may have limitations: severe and unstable slopes, flood plains, concentrated drainage patterns, scenic view corridors, wildlife habitat, etc. Gunnison County is supposedly able to preserve scenic and environmental values while allowing a landowner to economically benefit while still meeting the requirements of open space conservation...

Committee - Sounds good to us!

County Response:

If this sounds good to the Committee it might be because the Gunnison County regulation is modeled after the same legislation that enabled the Rural Land Use Process that is in our Code. Both the Conservation Development and Rural Land Use Plan guidelines allow more than one cluster if the site design factors suggest that such an arrangement of lots makes sense.

Comment:

Variances / Board of Adjustment: In an effort to relieve applicants of excessive paperwork and fee paying is it possible to amend the Variance process (section 4.6 Zoning Variances) to allow the Planning Department to approve variance requests in instances where the Planning Department agrees with the request, and has no conditions? A list of situations where conditions would be required could be added to the Code and would still be required to go to the Board of Adjustment.

County Response:

The Planning Department does not know if it agrees or if there will be conditions until after a full application is submitted and the review is complete. We need an application to refer to various agencies, depending on the nature of the variance request, to determine if there are issues to be addressed. We are obligated by the County Commissioners to recover 50% of the cost of processing land use applications, thus a fee must be paid. We already have some limited ability under the Code to grant minor variances (up to 10% of the requirement). Any more than that probably should be handled by amending the requirement. Staff is reviewing variance applications to see if there is a recurring problem that needs to be addressed through a Code amendment, such as setback variances on county roads. Issues like setbacks from County roads involve more than just the Land Use Code. County road setbacks are established through the transportation plan which would have to be amended to reduce the setback requirements or to change how they are applied.

Comment:

Landscape Requirements: Will the County be reconsidering their landscape requirements for all types of developments in order to be more conscientious of the drought and our arid climate? Could landscape requirements be amended to allow much greater flexibility in the types of plants, trees and shrubs used that are drought tolerant and less water dependent? Could the County offer some type of incentive for projects that would like to incorporate Xeriscape?

Committee - This is a very important issue that should be addressed immediately.

County Response:

Landscape Regulations and the Drought

Since the adoption of the Land Use Code, Section 8.5 (Landscaping) has included xeric standards and requirements. At no time has Larimer County required any applicant to use plant materials that do not meet the standard in Section 8.5.9. H. 1. This standard mandates the use of native, adaptive and drought tolerant plants. It applies to all commercial and industrial projects, and to the common areas of subdivision and some Conservation Developments as well. Finally, Larimer County does not regulate landscaping on single family residential lots.

Staff has worked with a numerous developers and designers over the past 3 years to promote xeric design approaches. Staff comments provided to applicants are very detailed as to plant selection and placement that promotes xeric design. Staff often suggests alternative plant materials might be more appropriate for use because of site specific conditions. For example, several designs have called for aspen trees in the sunny, exposed sites along the Front Range. The aspen, being a mountain, riparian tree, is not appropriate for these areas, and requires much more water to remain healthy. Such suggestions are often needed because many landscaping plans presented for review are done by individuals with no formal training in landscape design. However, the Land Use Code does not require that landscape plans be prepared by professionals, even though the issues involved can be very complicated.

In addition, the Land Use Code does not allow the use of plants that consume high amounts of water, such as Kentucky Blue Grass, in any areas where the landscaping standards apply. It is important to note that some developers require the use of this water-consuming turf on the residential lots within their projects, as part of their covenants. Staff believes residents should have the option to choose grass species that meet the native, adaptive and drought tolerant standards, as part of a xeriscape plan, if they prefer this approach.

Finally, the "Larimer County Plant List" provides detailed information on plants that are appropriate for use in Larimer County. Not all of the plants listed are considered native to this area, but if they are used in the proper context they can still be an effective element in a xeric design. As of January, 2003, visitors to the County web site have downloaded nearly 8000 copies of the Larimer County Plant List and the Landscaping Guide. The Landscaping Guide offers detailed information or xeric design approaches as well. In addition, the Planning Department has sold over 100 copies of these documents for the cost of printing at $9.00 for both, as a service to the public.

Category 2 - Customer Service:

Comment:

Subdivisions: Section 21.1d Violations:

...buyer must resolve violation

Suggestions to improve that section -

Prevention of Fraud: County web page of "common obstacles and pitfalls" of buying rural land.

Quality Customer Service: County staff should offer good, helpful information and not withhold helpful insight.

Committee - The new customer advocate (ombudsman) position should help the area of helpful information, but will require countless hours of training and education about the way the County departments do things before being truly effective at this.

County Response:

The Planning Department is always looking for ways to improve the information available on our web site. There are pitfalls in trying to warn prospective buyers of all the potential problems they may encounter. We will prepare an addition to the web site with some of this information and ask the County Attorney to review it before we publish. We believe the County staff is very helpful and informative. Sometimes we are unable to anticipate all the questions that a customer should ask and we can only answer the questions asked. We have hired, and are in the process of training, a customer advocate.

Comment:

Legal Descriptions: County staff needs to be conscious of what (type) they are requesting when they ask for one...heed surveyor / engineers hesitation.

Committee - This is an issue of Meets & Bounds versus Lot Block, etc. when it comes to the type of legal description being asked for. Is there a standardized way in which the County would like to see legals written? Can the County Surveyor educate appropriate staff and board members as to the different types of legal descriptions and the necessity for each?

County Response:

Staff is not sure what the question is. There are reasons to use different types of legal descriptions in different situations.

Comment:

"Consumer" needs a definitive roadmap / flow chart of how to use the county planning and building process...

too many things are left unwritten and are brought up far too late in the application / planning process - especially for the non-professional land developer.

County Response:

We have flow charts for our major processes and we will continue to develop/refine them as needed. Each section of the Code includes a subsection on "process" and the processes are spelled out in Section 12. There are often issues that come up during the review of a preliminary plat or a final plat that cannot be anticipated. Professional developers understand this problem and generally deal with it pretty well. Amateur developers are caught off guard and blame staff because we did not anticipate the problem and warn them of it. Development review is a complex process that involves many agencies, each of which has its own details to examine.

Comment:

Late comments from staff to change something on a plan...a flow chart would help alleviate many eleventh hour rush and expense.

County Response:

Staff cannot control when we get responses from referral agencies. Court cases have determined that recommendations from referral agencies are valid even if they are received after the established deadline. A flow chart will not prevent the receipt of comments late in the process.

Comment:

Manner in which the County staff implements the Code - Different staff offer different opinions and interpretations of the Code language and is quite unpredictable...

County Response:

The Planning Staff is constantly comparing notes, so to speak, on how to handle various situations dealing with the Code. When official interpretations are made by the Planning Director they are disseminated to all staff and memorialized in a computer folder that is available to all staff. During the Code adoption process staff was encouraged to write a code that is flexible and not too rigid. Flexibility breeds various interpretations. While a person might get a couple different interpretations, both of them might be valid. The Planning Staff always strives for consistency but not at the price of stifling creativity. If someone wants a final "interpretation" they can always ask the Planning Director and if that is not satisfactory, the decision can be appealed to the Board of Adjustment or the Board of County Commissioners. Staff is working on the Permits Plus computer system to enable us to add notes about customer contacts on any given parcel. Also, staff training is expanding to help avoid incorrect interpretations of the Code.

Comment:

Confusion and interchangeability of terminology...CD - Standard Subdivision - Rural Land Plan - Sketch Plan - Concept Plan, etc.

County Response:

Any technical manual relies on terminology. If we don't identify specific processes by a unique name how can we discuss them? This can be confusing for those who don't use the process very often but imagine our confusion if we did not specifically identify the process we are trying to discuss. The terminology is not interchangeable and it should not be.

Comment:

Is there an in-house policy for County Planning staff to "share" interpretations (or precedents of interpretations) of the Code with one another? What is the process that the County uses to communicate issues like this with one another?

Committee - The ability for staff to keep a log or journal of these types of discussions could be very helpful in the ongoing education of veteran staff members as well as newcomers (staff and elected officials/policy makers).

County Response:

Answered above.

Comment:

Coordination with other reviewing agencies: Is it possible, in an effort to streamline the County review process, that a customer could have the option of hand carrying and meeting with non-County review agencies (the fire department, Cities, water districts, etc.) to get their plans reviewed and approved rather than wait for the County Planning Department to forward the necessary sets of plans and follow up?

Committee - This could be a good option for the professional consultants that are familiar with the process to try. It would certainly reduce the workload for County staff and just might speed things up some.

County Response:

When the Code was adopted we included a Concept Review process that allowed the applicant to do the "leg work". We have found that the professional developers have consistently avoided this process in favor of the Sketch Plan Review because they preferred to have the planning staff do the work. The Planning Department is constantly reviewing the referral process for ways to improve and streamline it. Referral agencies look for our site data sheets and know who to call if there is a question. Having a few folks do their own referrals will confuse the agencies because the consistency will be lost. There really needs to be a central point of contact so everyone knows what is happening with a project. The Planning Staff is reviewing the role of planners as project managers in an effort to have a consistent process for all applications. Leaving referrals up to the applicant will cause significant delays. We did find some delays in the referral process and they have been fixed. The longest delay for a send out to referral agencies after an application is received is eight days. Many are done much faster than that.

 

Category 3 - Code Related Issues:

Comment:

Mobile Home Section 18.2.1 a & b:

"standard siding / roof" - needs to be defined.

Committee - Once again, a long discussion regarding the Mobile Home Section of the Code needs to be held...

County Response:

Partly answered above. The issue that the Board of Adjustment decided was how to make a single wide mobile home more compatible with more conventional types of construction. Rather than dictate specific types of building materials the Board wanted to allow some creativity. The structure needs to look more like a house than a mobile home when the siding and roof are added.

Comment:

Boundary Line Adjustments process 5.5.1:

Code is very restrictive when easements are involved. Can the process be simplified for minor adjustments? (adjustment of an existing easement that is shown incorrectly).

County Response:

If an easement is shown on a recorded plat, the only way to change the easement is to change the plat. Plats must be approved and signed by the County Commissioners and a referral process is necessary to make sure that changing the easement will not cause any problems. Many folks think that an easement is just a line on a piece of paper but that line has legal implications for current and future property owners of the subject property and surrounding lots. What seems simple may not be so. The parties to whom the easement is granted must be consulted and give their consent to changing or deleting the easement.

Comment:

Accommodations Uses 4.3.6:

Can this section be expanded to include current types of categories and uses that fall into a Resort type development (use Keystone, Breckenridge and Vail as examples) including residential, golf and country clubs, retail, office space, health and beauty facilities, convention facilities, transit, lodging, and equestrian uses. In addition, could there be an incentive for affordable / employee housing within the development (perhaps by not including those units into the historical density calculations)?

Committee - An expansion of this section of the Code would certainly encourage a much greater mix of uses within that zone, and could in fact stimulate some very creative development to be proposed in areas appropriate.

County Response:

This would take a major Code amendment and would have implications for the Master Plan. The only place such a development could be approved right now would be in the Growth Management Areas. The Master Plan does not support rezoning in the rural areas for commercial type development. There is very little existing Accommodations zoning in the County. Much of it was around Estes Park but that is covered by the Estes Valley Code now.

Category 4 - Enforcement:

Comment:

Subdivisions: Section 21.1d Violations:

...buyer must resolve violation

Suggestions to improve that section -

Enforcement: Don't force landowner to remedy the violation...assist the landowner to remedy the violation and help enforce the Code for the next potential victim.

County Response:

Answered above.

Comment:

Enforcement of placement of pins on subdivisions...how can we get enforcement?

Committee - We recognize that state law requires the placement of the pins, but there is apparently no mechanism to enforce the law. We would like to suggest that the County implement a requirement for a Certificate of Staking at building permit stage so that the county has some recourse to follow up with the responsible party if / when it becomes aware that the staking never took place.

County Response:

We could adopt a Code amendment to require certification of the staking before any building permits are issued or before the plat is recorded. We would need advice from the County Attorney to see if the certification really gives us any recourse. State law already requires the staking of lots prior to sale. Building permit might be too late in the process. We might not get a building permit on a lot for ten or 20 years after the plat is approved. Any enforcement activity needs to be discussed with the County Commissioners because if we adopt a requirement we need to make sure we have a way to follow up and enforce it. We do require a surveyor's certification for setbacks if a proposed building is within five feet of the property line or the edge of a building envelope. This has helped the Building Inspectors with the setback inspections.

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Citizen Comment:

John Clarke suggested that the Land Use Code should be amended to allow public golf courses and other public uses to be operated in the residual land in a Conservation Development (October 11, 2004 BCC/PC Work Session)

County Response:

Conservation Development is a "Rural" form of development. Inside Growth Management Areas development is done through the Planned Land Division process. A public golf course development, which includes a residential component, can be accommodated with a rezoning to PD-Planned Development if the master plan for the appropriate municipality indicates this sort of development is acceptable. This discussion will concentrate on development in rural areas, outside Growth Management Areas.

The Code currently restricts the uses in residual land to those uses that are agricultural in nature or strictly for the use of the residents of the Conservation Development. This restriction on the use of residual land is the result of the Master Plan discussions concerning up zoning or down zoning the rural parts of the County. The agreement was that zoning would remain unchanged and development densities and intensities would be based on the existing zoning. Allowing public uses on residual land would result in a significant increase in the development intensity beyond that allowed by the existing zoning. The development would achieve a certain density that is allowed by zoning and the public use would increase the intensity of the use of the subject property, which is contrary to the Master Plan.

There are ways to accommodate a golf course or other public use in conjunction with a Conservation Development but the land used to accommodate the public use could not be included in the area used to calculate the allowable density for the Conservation Development.

Amending the Land Use Code to allow public uses in residual land would have to include a major policy decision resulting in an amendment to the Master Plan. The Guiding Principles and Implementation Strategies in Section 3.5 of the Land Use Code indicate that allowed uses and residential densities shall be based on the current zoning of the property (Rural Land Use LU-4). The Master Plan indicates that residential densities will not be increased through up-zoning. The Master Plan also indicates, in Section LU-5, that new subdivisions must include 50% to 80% open space for agricultural uses, natural areas and other undeveloped land uses. Public uses such as golf courses or stables would result in "development" in the residual land that is not contemplated by the Master Plan.

(April 19, 2004 BCC/PC Work Session)

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Citizen Comment:

Brian Schumm made two points:

1. Using the Whitman zoning violation as the example, Brian said that the County should have a written policy that clearly describes the rights of a violator (BCC had already declared it was a zoning violation) to make application for an approval (eg a special exception, special review, minor special review, rezoning, etc.) that would "cure" the violation, and what actions the County will take regarding code enforcement during the time period that the application is in process - and how long the County is willing to hold up code enforcement during that process. It seems that there appears to be no time limit on how long the County holds up code enforcement - a violator could stretch out the process for a very long time. In effect there is no County code enforcement in these cases.

2. IF the County does develop a written process (above), then the policy should say that a violator should be allowed to apply ONLY for an approval process that "cures" the specific code violation, AND NO MORE. Under the current approach, a violator can apply for a type of approval that goes far beyond simply curing the code violation, which is very likely to make the application/review/decision making process take much longer, thereby putting off code enforcement much longer. Once the violator gets (or doesn't get) the more simple approval that cures the code violation, they could THEN apply for some other approval, separate from the code violation/code enforcement issue.

(October 20, 2004, BCC/PC Work Session)

County Response:

Comment 1

The reason we don't have a policy (and perhaps shouldn't have a policy) is the "one size can't fit all" theory. There are instances where it would be reasonable and fair to allow the violation to continue while the person obtains whatever approval is necessary to cure the violation. For example, if the violation happened innocently-someone bought a piece of property with a small bicycle repair shop and just assumed the use was legal or perhaps was told by the owner or realtor that the use was o.k. Or, the violation is minor. Or, if the approval had been sought in advance there is virtually 100% certainty that it would have been approved. Or, where the cure is relatively minor and could be accomplished quickly. These type of factors would dictate in favor of allowing the violation to continue during the cure period. On the other hand, if the violation is major, is adversely affecting surrounding properties, will involve a potentially lengthy process to cure it and/or was the result of the owner knowingly disobeying the rules, these factors might dictate requiring the owner to completely cure the violation first and then seek whatever approvals are necessary to resume the use or obtain additional uses/development. Without a policy, the BCC is free to look at the specific situation and craft a solution that is fair and reasonable. With or without a policy, there are going to be times when in retrospect, it would seem a different course of action should have been taken.

All of this is a very long way of stating that it would be difficult to (1) draft a policy to cover every possible situation and give the BCC the flexibility needed to be lenient where appropriate and really crack down in other situations and (2) draft a policy that would be totally fool proof.

Comment 2

Same response. There are going to be times when it makes sense to combine two types of applications. (i.e., one to cure the violation and one to expand of further develop) and there will be times when it doesn't. It still makes sense to deal with these violations on a case by case basis and try to adopt a solution that fits the particular situation.

Planning Commission/Board of County Commissioner Direction to Staff:

Bring to a joint work session, as soon as can be scheduled, a draft code amendment that says that when deciding upon an application that would "cure" a code violation, PC and BCC shall give no consideration to investments already made in improvements.

(February 9, 2005 BCC/PC Work Session)

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Citizen Comment:

Brad Koontz submitted the following:

"It has come to my attention that the storing of boats and recreational vehicles in outside storage is a violation of the commercial zoning code according to the Land Use Code of Larimer County.

I would strongly support an amendment to the Land Use Code allowing outside storage of boats and recreational vehicles in commercially zoned areas.

By allowing commercial storage facilities to provide this service, the need to store these items in neighborhoods is relieved. Without this service, a great hardship would be placed on neighborhoods with covenants prohibiting the parking of boats and recreational vehicles in their respective by-laws. Even without restrictive neighborhood covenants, commercial storage facilities lend themselves to keeping neighborhoods free from the unsightly parking of boats and recreational vehicles on the streets or on your neighbor's driveway.

I own Fort Collins Dry Dock located at 3955 South Taft Hill Road. This property has been storing recreational items since 1986. At the present time, I have 125 Boats & Recreational items stored outside on my lot. If the amendment is not approved, these stored items would have to move elsewhere because of the Land Use Code Violations.

I would strongly urge you to support the amendment to allow outside boat and recreational vehicle storage in commercially zoned area. This just makes good common sense." (February 9, 2005 BCC/PC Work Session)

County Response:

We received a letter from Brad Koontz (see attached) concerning uses permitted in the C-Commercial Zoning District. Mr. Koontz operates an outdoor storage facility for 125 boats and recreational vehicles. We have notified Mr. Koontz that the use is not consistent with the uses permitted in the C-Commercial Zoning District and, in this case, the use is not consistent with a decision of the Board of Adjustment. When boat storage was approved on this site by the Board of Adjustment it was limited to the storage of boats that were being sold at the "Boat House" which was a commercial boat sales facility on the adjacent lot. Mr. Koontz would like to see the Land Use Code amended to allow outdoor storage as a permitted use in the C-Commercial Zoning District.

The original County Zoning Resolution adopted in 1963 was based on a model code that followed the "Euclidian" model that was first used in Euclid, New York. The concept was to segregate various types of uses so that an orderly pattern of development would occur. For instance, business and commercial uses are not allowed in the residential zoning districts. The subsequent amendments to the Zoning Resolution and the Land Use Code have attempted to continue that pattern.

The distinction between commercial and industrial uses is more difficult to define. There is generally an outdoor storage component of many of these uses and this accessory storage has always been permitted. Pursuant to the Land Use Code, these accessory storage areas for new uses would have to meet the screening standards that would be applied through the Site Plan Review Process. Outdoor storage as a principal use has always been limited to the I-Industrial Zoning District and, since about 1977, the use requires approval through Special Review.

Outdoor storage uses that are not associated with another use tend to conflict with many of the uses permitted by right in the C-Commercial Zoning District. Someone who builds an office/warehouse complex or a retail establishment in the commercial zone would probably not like to see a large, outdoor storage area on the adjacent lot or across the street. Segregation of conflicting uses has always been one of the goals of our zoning regulations.

If we review the County zoning map we find that most of our C-Commercial zoning is located adjacent to the arterial roads that provide major entryways into our communities. East Mulberry (Highway 14), South College (Highway 287), North Garfield and South Lincoln (Highway 287 in Loveland), Highway 287 north of Berthoud and County Road 54 G leading into Laporte is where most of the commercial zoning is located. Most of the I-Industrial Zoning is somewhat removed from these arterial roads.

Amending the Land Use Code to allow outdoor storage in the C-Commercial Zoning District would disrupt the goals which many of our communities have to maintain the attractiveness of these entryways. For instance, the East Mulberry Corridor Plan was predicated on the existing permitted uses in the C-Commercial Zoning District. Changing those uses would be detrimental to the effort that has been made to guide development along East Mulberry. Staff believes that other communities would have similar concerns if the Code is amended as suggested.

Outdoor storage as a principal use belongs in the I-Industrial Zoning District as a use that requires Special Review approval. This is consistent with the effort that has been made since the original zoning in 1963 to segregate similar uses in certain zoning districts.

Staff recommends that the Land Use Code not be amended to accommodate outdoor storage in the C-Commercial Zoning District.

This is Section 4.1.18 of the Land Use Code which lists the uses permitted in the C-Commercial Zoning District. Note that most of the uses with an outdoor storage or activity component require approval through the Special Review Process. Allowing outdoor storage as a principal use would not be consistent with the way this zone has been administered in the past.

4.1.18. C-Commercial

A.     Principal uses:

Agricultural

1.     Garden supply center (R)

2.     Livestock auction (S)

3.     Pet animal facility (R)

4.     Pet animal veterinary clinic/hospital (R/S)

5.     Livestock veterinary clinic/hospital (R/S)

Commercial

6.     Convenience store (R)

7.     Automobile service station (R)

8.     Carwash (R)

9.     Professional office (R)

10.     General retail (R/S) See section 4.3

11.     General commercial (R)

12.     Personal service (R)

13.     Takeout restaurant (R)

14.     Sit-down restaurant (R)

15.     Nightclub (R)

16.     Flea market (R/S)--See section 4.3 (use descriptions and conditions)

17.     Instructional facility (R)

18.     Outdoor display/sales (R)

19.     Clinic (R)

Institutional

20.     Health services (R)

21.     Hospital (R)

22.     School, public (L)

23.     School, nonpublic (R/S)--See section 4.3

24.     Rehabilitation facility (R)

25.     Jail/prison (S)

26.     Sheriff/fire station (L)

27.     Church (R)

Recreational

28.     Place of amusement or recreation (R/S)--See section 4.3

29.     Shooting range (R/S)--See section 4.3

30.     Membership club/clubhouse (R)

Accommodation

31.     Hotel/motel (R)

Industrial

32.     Enclosed storage (R)

33.     Trade use (R/S)--See section 4.3

34.     Light industrial (S)

Utilities

35.     Utility substation (L)

36.     Treatment plant (L)

37.     Commercial mobile radio service (R/S)--See section 16

38.     Radio and television transmitters (S)

39.     Water storage facility (L)

Transportation

40.     Transportation depot (R)

41.     Bus terminal (R)

42.     Truck stop (R)

43.     Transportation service (R)

44.     Parking lot/garage (R)

45.     Park and ride (R)

Changing the Land Use Code to address the illegal use is not the appropriate process in this case. The property owner has two other options.

The property owner can apply to rezone the property. Since this site is in the Growth Management Area for the City of Fort Collins, the appropriate zoning district would be PD-Planned Development. PD zoning is based on the City's Structure Plan and it would be very important for the City of Fort Collins to support the proposed rezoning.

The property owner can change the use of the site to a use that complies with the C-Commercial Zoning District. (March 29, 2005 BCC/PC Work Session).

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Citizen Comment:

Brian Schumm commented on the following:

• The County should improve its processes for enforcement of the Land Use Code. The goal of code enforcement should be to get code violations corrected in an expeditious manner rather than follow a path of variances, rezoning, special exceptions, etc. to make what is a violation into a legal use or legal situation. A stated purpose of the land use code is to maintain and enhance property values, which is being undermined when a code violation is allowed to continue.
• The County should, if it can, fine code violators, if they don't correct the code violation in a timely manner.
• When rezoning a property to PD-Planned Development, the County should provide a more comprehensive, definitive set of allowed uses and requirements, so that it is more like a zoning district and less like a variance or special exception.
• If the County must allow property owners to pursue a "cure" of the code violation through rezoning, special exception, variance or other remedy, the County should clearly spell out the acceptable parameters for doing so rather than let that process go on for an extended period, thereby prolonging the "harm" being done to the neighbors by the code violation. (March 2, 2005 BCC/PC Work Session).

County Response:

The Board of County Commissioners and County Planning Commission agree that the land use code enforcement function can and should be made more expeditious, and we will explore means to spell out the acceptable parameters for allowing a property owner to pursue a "cure" of the code violation as an alternative to correcting the violation. The potential for levying fines for non-compliance will be explored. The staff should take care to craft the content of future PD-Planned Development Districts such that they are as comprehensive and definitive as other zoning districts. (March 29, 2005 BCC/PC Work Session).

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Citizen Comment: The following anonymous land use code survey was received regarding the Transportation Capitalization Expansion Fee: In instituting this fee, it has rendered new small business owners helpless in starting their businesses off on a good foot. The fees are to be paid in full for a 20 year term regardless of how long they plan to be in the said space, and Larimer County is not promoting new growth from small business owners with this fee. It is unrealistic to expect a small business who is leasing a space to pay such fees. Make the building developer pay the fees since it is under their ownership. (February 17, 2006)

County Response:

The theory behind the transportation fees is that traffic increases as new construction activity occurs. The existing transportation system will have to be expanded over the next 20 years to accommodate this additional traffic. The cost of expanding the transportation system should be assessed against that new construction activity by collecting transportation fees at the time building permits are issued.

For new residential construction, the additional traffic that will be generated can be estimated reasonably well, since the traffic associated with a new residence usually falls within a relatively small range. For new commercial construction, the additional traffic is much harder to estimate, since different types of business generate very different amounts of traffic. For example, 10,000 square feet of warehouse space may generate very little traffic compared to 10,000 square feet of fast food restaurant space. For this reason, when the final use of new commercial space is not known at the time a building is constructed, an initial transportation fee is collected with the building permit for the "shell" of the building, and an additional transportation fee is collected with the building permit for the tenant finish when the traffic impact can be computed more accurately.

When a commercial space is "finished" for a tenant, the County has no way of knowing if that tenant will stay in the space two years or twenty years, just as we have no way of knowing whether the first owner of a new residence will occupy the house for two years or twenty years. Trying to create a system where the transportation fees are prorated over time and paid by owners or tenants based on length of occupancy is impractical. The County simply requires that the transportation impact fees be paid at the time a building permit is issued. Builders, building owners, tenants, leaseholders, etc. can determine who actually pays the fees based on the marketplace or on their own particular contractual negotiations. (April 12, 2006 BCC/PC Work Session).

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All of the following comments were made by Evelyn King on November 8, 2006

Citizen Comment: Why isn't the code amendment priority list and plan for review posted on the County's website? (November 8, 2006 BCC/PC Worksession)

County Response: The code amendment priority list is very important in guiding staff in the development of proposed code amendments. We are following it to the best of our ability. However, other factors also come into play in determining how staff time is allocated to work such as this. Therefore, the priority list, if on the web site, could be a source of confusion because staff time will, occasionally, be diverted to other matters by the County Commissioners or some event that occurs. For example, the County Commissioners have developed their work plan priorities for 2006-2007, which provides additional direction for staff work. The County Commissioner's 2006-2007 work plan included, "Investigate use of intra-county transfer of zoning density and/or intensity." The recent meetings spent on discussing an intra-county TDU program is in response to this. Writing code amendments is a deliberative process with a lot of give and take among staff, the County Commissioners and the Planning Commission. It is not possible to predict how long it may take to develop code amendments for a given topic, so a later priority item may actually get accomplished sooner than a higher priority item.

Obviously, any information we put out on the internet needs to be updated frequently and that takes a lot of staff time. Should we be processing code amendments or updating a website?)

Public participation is very important but it should come at a time when meaningful input can be given. Perhaps more important then the priority list is the actual agenda of these joint work sessions. Currently, the County Commissioners weekly agenda simply states "BCC/PC joint work session" and does not include the list of items to be discussed. The agendas for the joint BCC/PC work sessions will be provided to the County Commissioners office staff so they can begin to include that on the weekly posting of the County Commissioners agenda. (December 13, 2006 BCC/PC Worksession)

Citizen Comment: What happened to the priority list approved back on October 30, 2005? (November 8, 2006 BCC/PC Worksession)

County Response: Staff is still working off of that priority October 24, 2005 listing, copy attached.

Status of work items that were in progress on October 24, 2005:

-Home occupation amendment, adopted

-Transportation Plan-related amendments, including setback changes, adopted on Nov. 20.

-wildfire hazard mitigation procedures nearing completion (Jim Reidhead project)

-Value added agriculture and agri-tourism code amendments being prepared for public hearing (anticipated for January, 2007 PC)

-Large animal regulations pending upcoming public process

October 24, 2005 Code Amendment Priorities:

Item 1. Sewer Appeals. Completed

Item 2. Metro Districts. Completed

Item 3. Staff discretionary approvals. Partially completed-additional amendments are in the pipeline (to Planning Commission Dec. 20, 2006)

Item 4. Glare BCC/PC discussion completed. Direction: no code amendment needed.

Item 5. HB 1041 BCC/PC discussed this several times. Current status is that no further action to be taken unless/until initiated by BCC.

Item 6. Emergency Access: Staff work being performed. BCC/PC discussion to occur in early 2006.

Item 7. Junk and Rubbish Ordinance. Discussion to begin in early 2006.

Item 8. Storage issues. Currently being worked on and initially discussed on Nov. 8, 2006

Item 9. Communication Towers. Discussion to begin in 2006.

Item 10. Farmsteads. Discussion to begin in 2006.

Item 11. Subdivision road maintenance. Discussion to begin in 2006.

Additional code amendments completed recently or at public hearing stage:

-Rural Addressing Resolution amendments adopted and at public hearing stage

-Graffiti Ordinance at public hearing stage

-Various "housekeeping" code amendments

-setbacks in O and RE districts (adopted and at public hearing stage)

-final plat deadlines (adopted)

-review criteria for variances (adopted)

-parking spaces per ADA (adopted)

-requiring road paving to the edge of land divisions (adopted)

-update of group homes, per State Statutes (adopted)

-add "river rafting business" to O-Open district (at public hearing stage)

-administrative variance for setbacks from streams (at public hearing stage)

-administrative variance for setbacks from roads (adopted)

(December 13, 2006 BCC/PC Worksession)

Citizen Comment: Where is the Administrative Review that was promised? (November 8, 2006 BCC/PC Worksession)

County Response: An administrative variance process was adopted for setbacks in O-Open and RE-Rural Estate several months ago, and we are proposing an improvement to that approach by amending the setback requirement in O and RE (to Planning Commission on Dec. 20). We have just adopted (BCC, Nov. 20) an administrative variance for county road setbacks for existing buildings. We are also working on an administrative variance process for stream setbacks that will go to the Planning Commission on December 20, 2006. We have taken the administrative process about as far as we think we can. State law requires that there be a Board of Adjustment to consider zoning variances so we can't turn over all the authority to an administrative process. (December 13, 2006 BCC/PC Worksession)

Citizen Comment: Where is the variance review criteria amendment that was promised to make the criteria consistent with state law? (November 8, 2006 BCC/PC Worksession)

County Response: It is assumed that what is meant here is your earlier request to expand the criteria to include "extraordinary and exceptional situations or conditions" in Sec. 4.6.3.A as stated in State Statutes. The below amendment was adopted on Feb. 27, 2006.

Sec. 4.6.3.A states (as a review criteria):

A. There are special circumstances or conditions, such as exceptional topographic conditions, narrowness, shallowness or the shape of property, or other extraordinary and exceptional situation or condition of such piece of property; that are peculiar to the land or structure for which the variance is requested;

It appears that Evelyn wants the review criteria to include extraordinary and exceptional situation or circumstances of the property owner, not just of the property. Doing so would make our review criteria inconsistent with state law. Doing so goes beyond what the State Statutes say about review criteria---the Statutes say, "Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property....or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property...." (December 13, 2006 BCC/PC Worksession)

Citizen Comment: Why have we not deleted the limitation on expanding nonconforming buildings in Section 4.8? (November 8, 2006 BCC/PC Worksession)

County Response: Sec. 4.8.10. B states:

B. A non-conforming building or structure cannot be extended, expanded, enlarged or changed in character without the approval of the county commissioners except where the building is nonconforming only as to a required setback and the following conditions are met:

1. the proposed addition is not more than 25 percent of the square footage of the original building and is not more than 1,000 square feet;

2. the proposed addition is outside the required setback; and

3. No portion of the original building or the proposed addition is within the future right-of-way identified by the Larimer County Functional Road Classification or the Colorado Department of Transportation.

There needs to be some limit on expanding nonconforming buildings, otherwise there is no need for zoning setback requirements. The current code is much less restrictive than the original nonconforming regulations. We currently allow a building that is nonconforming with respect to setbacks to be expanded up to 25% or 1,000 square feet without a variance as long as the addition is outside the setback.

Non-conforming buildings are intended to eventually be discontinued. If there is no problem with buildings being built in the setback, then perhaps the setback requirement should be changed-making non-conforming buildings conforming. Many setback requirements are being changed (made smaller) with the current set of code amendments now in the public hearing stage (Dec. 20 Planning Commission). Also in public hearing stage is a code amendment that provides for an administrative variance for expansions of non-conforming buildings setbacks from county roads---this was based upon the notion that there are some types of expansions that are generally not a concern to the county, so an administrative variance process was appropriate. An administrative variance process for setbacks from streams is also at the public hearing stage-this could address some non-conforming buildings as well. Finally, code amendments are at the public hearing stage to change the setbacks for existing buildings in the RE and O districts, thereby eliminating their non-conforming status. (December 13, 2006 BCC/PC Worksession)

Citizen Comment: Why all the inequities in setback requirements among all the zoning districts? (November 8, 2006 BCC/PC Worksession)

County Response: A code amendment at the public hearing stage changes many setback requirements from county roads, and provides for an administrative variance for these setbacks as well. However, side and rear setbacks are not changing (except in the RE and O districts).

Various zoning districts were written to accomplish a variety of results. Generally, larger minimum lot size requirements should be matched with larger setbacks. But most of our zoning districts evolved from the small area zoning districts that were developed in the 1950's and most of these were based on a model zoning ordinances. Setback requirements differ by zoning district because all zoning districts are not the same. (December 13, 2006 BCC/PC Worksession)

Citizen Comment: What about the problems with setbacks from intermittent streams that staff promised to fix? (November 8, 2006 BCC/PC Worksession)

County Response: The proposed administrative variance process currently in the public hearing stage (to Planning Commission Dec. 20) will address most of the issues that come up with respect to stream setbacks. It is very important that we continue to protect buildings from flood hazards and protect streams and riparian areas from encroachment. There will be some inconsistencies from time to time because the USGS maps that we use were drawn years ago and new construction in the mean time has changed the landscape in certain areas. No system will be perfect but the imperfections can be addressed in the administrative variance process. (December 13, 2006 BCC/PC Worksession)

Citizen Comment: Why not reduce the cost of variances to be consistent with Fort Collins and Loveland application fees? (November 8, 2006 BCC/PC Worksession)

County Response: Some of the cities have chosen to underwrite the cost of variance applications to a greater extent than the County. The current policy of the County Commissioners is that an applicant should pay for a substantial portion of the cost of processing the application rather than shifting that burden to the general public. For various types of application reviews, there are varying benefits to the property owner and to the general public. Some types of application reviews benefit the property owner more than the general public, so the application fee is proportionally higher for the property owner. (December 13, 2006 BCC/PC Worksession)

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Citizen Comment:

Evelyn King made the comment that there should be a process whereby citizens can work with staff on the writing of code amendments, and that the public should know the status of code amendment work and the priorities for this work. (December 13, 2006 BCC/PC Worksession)

County Response:

The public will be informed about what code amendments are to be discussed at an upcoming joint BCC/PC work session by the work session agenda. The work session agenda is included in the County Commissioner's weekly public posting of its meetings.

It is not possible to accurately project agenda contents in advance due to the many variables affecting the agenda, including newly emerging issues, the need to continue discussions from previous work sessions, staff time to prepare an agenda item, etc. Providing the public with a preliminary schedule of upcoming agendas will only confuse matters and cause frustrations when actual agendas differ from projected agendas.

Citizen involvement in the drafting of code amendments will vary with the nature of the code amendment. For the drafting of most code amendments, the citizen involvement consists of the Planning Commission. Direct citizen involvement in code amendment drafting on a routine basis would not necessarily be productive or make the best use of time and staff resources. One of the issues with direct citizen involvement is that of balanced representation-which citizens would be included and which viewpoints given the greatest weight by staff? The general public can comment on proposed code amendments at scheduled public hearings of the Planning Commission and County Commissioners. From time to time, additional citizen involvement is solicited via focus groups or open houses; however, this approach is limited to the more controversial, complex code issues. (January 10, 2007 BCC/PC Worksession)

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Citizen Comment:

"Reduce the setback for intermittent streams to 50 feet. The 100 foot setback is very large for intermittent streams, and I have found no justification for such a large setback."

(Comment made to Kathay Rennels from Evelyn King 02/14/2007)

County Response:

The Engineering Department has reviewed this comment and has the following response:

The Land Use Code was recently amended to provide for an administrative setback up to 50 feet from streams. Sec. 4.6.7, adopted on January 22, 2007, enables the Planning Director to grant an administrative variance up to 50% of the required setback if the review criteria are met. The intent of this code change was to reduce the burden to the minimum necessary information, and the minimum necessary process.

If the change to not require administrative approval of a variance was made as suggested, a setback of 50 feet would apply in all cases. We agree that 50 feet is a sufficient setback in most cases. However, we would be reluctant to recommend approval of a reduced setback for all cases without review. We have several reasons for this position. The hydrologic character of the various "streams" varies tremendously, both in terms of the size of the upstream catchment and its hydrologic conditions. For example, some watersheds have rocky soil in which little infiltration of moisture would occur, while others have thick soil with heavy timber. Watersheds above 7,200 feet in elevation are less subject to intense thunderstorms.

For most lots in rural areas the need to vary the setback is not driven by lot geometry. Cases certainly exist where the 100 foot setback is insufficient as may be the case where there is a broad meadow.

(March 14, 2007 BCC/PC Worksession)

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Citizen Comment:

Comment made by Virginia Gilmore representing the local beekeepers association at the 3:00 PM, May 14, 2007 County Commissioner Land Use public hearing: The County Land Use Code makes no provision for conducting a bee keeping business on residential parcels. The City of Fort Collins has a bee keeping ordinance, and the County should adopt something similar.

A copy of the City of Fort Collins' bee keeping ordinance also is presented below, followed by my email correspondence with the city about that ordinance.

Regarding the current County Land Use Code as it pertains to bee keeping:

1. The definition of agriculture includes bees and apiary products.

Agriculture.  The production, keeping or maintenance, for sale, lease or personal use, of plants and animals useful to people. This includes but is not limited to forages and sod crops; grains and seed crops; dairy animals and dairy products; poultry and poultry products; emus and ostriches; livestock, including beef cattle, sheep, swine, horses, ponies, mules, llamas, alpacas or goats or any mutations or hybrids thereof, including the breeding and grazing of any or all such animals; bees and apiary products; fur animals; trees and forest products; fruits of all kinds, including grapes, nuts and berries; vegetables; nursery, floral, ornamental and greenhouse products; or lands devoted to a soil conservation or forestry management program. 

2. The definition of a farm is a parcel greater than 3 acres. This definition does not include bee keeping; however the definition of agriculture, in my opinion, should lead us to conclude that bee keeping would be allowed on a farm.

Farm.  Any parcel of land containing at least three acres used primarily for the commercial, soil-dependent cultivation of an agricultural crop; the raising of aquatic plants or animals; or the raising of livestock. This does not include feed lots, dairies, poultry farms, exotic animal farms or fur farms

4.3.1. Agricultural uses.

A.   Farm.  Any parcel of land used primarily for the commercial, soil-dependent cultivation of an agricultural crop, the facilities and storage necessary for the management of a commercial custom farming operation or the hauling of farm products, the raising of fish, plants or animals or the raising of livestock but not including feedyards, poultry farms or fur farms. 

1.   A farm may include a stand for the sale of agricultural products produced on the same farm premises. A permanent facility for the sale of agricultural products produced on the same farm premises must comply with all zoning requirements.

2.   A farm may include a farmstead as described in subsection 4.3.10 (accessory uses).

3. Farms are allowed in only some zoning districts: FA-1, FA, FO, FO-1, O, RE and AP.

4. In January, 2007 an inquiry was made by a property owner as to whether one may have bees and sell honey as a home occupation in a non-farm (parcel under 3 acres) situation. In response, the following interpretation was made by the Planning Director on January 30, 2007.

Sec. 4.3.10. B Home Occupations

Bee keeping, sale of honey and similar uses.

The definition of a home occupation does not specifically address uses such as the keeping of bees and the selling of honey produced on the premises in a non-farm situation. Interpretation: Bees are not livestock. Similar activities might also include the sale of fruit or vegetables produced or grown on the property, also in a non-farm situation. A non-farm situation would be when the parcel does not meet the definition of a farm, i.e. it is under 3 acres and the principle use of the parcel is, for example, residential. To qualify as a home occupation, ALL requirements for a home occupation must be met. On site retail sales of the honey or produce must be within the limitations of a home occupation, i.e. they must occur only within the on site retail sales event provisions. Sales of fruits or vegetables grown on the site would qualify as a home occupation only if the on site sales activity is limited to the retail sales event requirements. Sale of items that are perishable and would therefore have to be sold daily would not qualify as a home occupation since the on site sales activity would not meet the on site retail sales event requirement. Note: The preparation of food or beverage for sale or service to the public must first be approved by the County Department of Health and Environment. Date of Interpretation: January 30, 2007.

In other words, bee keeping and sale of honey could be conducted as a home occupation in a non-farm situation as long as all the requirements of a home occupation were met.

It should be noted that one of the criteria to be considered a home occupation is "The home occupation must not change the residential character of the lot...." Also, "Any noise, dust, odor, vibration, or light generated as a result of the home occupation must be below, at the property line, the volume, frequency, intensity, duration or time of day such that it does not unreasonably interfere with the enjoyment of life, quiet, comfort or outdoor recreation of an individual of ordinary sensitivity and habits."

The intent of the above two statements deals with compatibility of the home occupation with the neighborhood. In the case of bee keeping, this compatibility is not met when the bee keeping operation involves outdoor storage and becomes a nuisance to the neighbors.

Options For the County to consider are:

A. Keep the Land Use Code as is---allowing bee keeping on a farm (land over 3 acres in zoning districts allowing farms*) by right or in a (qualified) home occupation situation.**

B. Eliminate bee keeping as a home occupation** due to potential to be a nuisance to neighbors and thereby change the residential character of the area.

C. Allow bee keeping on a farm (land over 3 acres in zoning districts allowing farms) by right and, in those farming zone districts, allow on parcels less than 3 acres by minor special review.

D. Allow bee keeping on a farm (land over 3 acres in zoning districts allowing farms) by right and, in those farming zone districts, allow on parcels less than 3 acres via adoption of an amendment similar (perhaps changing lot size and/or other parameters) to the Fort Collins ordinance.

E. Allow bee keeping on a farm (land over 3 acres in zoning districts allowing farms) by right and in all (or to be listed in addition to farm zones) zoning districts allow on any parcel regardless of lot size by minor special review.

F. Allow bee keeping on a farm (land over 3 acres in zoning districts allowing farms) by right and, in all (or to be listed in addition to farm zones) zone districts, allow on any parcel via adoption of an amendment similar (perhaps changing lot size and/or other parameters) to the Fort Collins ordinance.

*zoning districts that allow farms are: FA, FA-1, FO, FO-1, O, RE, AP.

**a concern is that one would not know if the bees would be a nuisance to the neighbors, thereby changing the residential character of the area, until after the home occupation had been established. This creates an enforcement problem and the bee keeper has already invested money to establish the home occupation.

County Response:

Direction provided by the County Commissioners and Planning Commission at the June 6, 2007 joint work session:

1. Add "beekeeping" to the definition of a "farm".
2. Option F above. Develop a code amendment for consideration that is similar to the Fort Collins ordinance, but adjust for larger lot sizes. One does not have to own the bee hives on their property.

City of Fort Collins Ordinance

Sec. 4-228. Hives.

All bee colonies shall be kept in Langstroth type hives with removable

frames, which shall be kept in sound and usable condition.

(Ord. No. 72, 1989, 4-4-89)

Sec. 4-229. Fencing of flyways.

In each instance in which any colony is situated within twenty-five

(25) feet of a public or private property line of the tract upon which

the apiary is situated, as measured from the nearest point on the hive

to the property line, the beekeeper shall establish and maintain a

flyway barrier at least six (6) feet in height consisting of a solid

wall, fence, dense vegetation or combination thereof that is parallel to

the property line and extends ten (10) feet beyond the colony in each

direction so that all bees are forced to fly at an elevation of at least

six (6) feet above ground level over the property lines in the vicinity

of the apiary. It is a defense to prosecution under this Section that

the property adjoining the apiary tract in the vicinity of the apiary is

undeveloped property for a distance of at least twenty-five (25) feet

from the property line of the apiary tract.

(Ord. No. 72, 1989, 4-4-89)

Sec. 4-230. Water.

Each beekeeper shall ensure that a convenient source of water is

available at all times to the bees so that the bees will not congregate

at swimming pools, bibcocks, pet water bowls, birdbaths or other water

sources where they may cause human, bird or domestic pet contact.

(Ord. No. 72, 1989, 4-4-89)

Sec. 4-231. General maintenance.

Each beekeeper shall ensure that no bee comb or other materials that

might encourage robbing are left upon the grounds of the apiary site.

Upon their removal from the hive, all such materials shall promptly be

disposed of in a sealed container or placed within a building or other

bee-proof enclosure.

(Ord. No. 72, 1989, 4-4-89)

Sec. 4-232. Queens.

In any instance in which a colony exhibits unusually aggressive

characteristics by stinging or attempting to sting without due

provocation or exhibits an unusual disposition towards swarming, it

shall be the duty of the beekeeper to requeen the colony. Queens shall

be selected from stock bred for gentleness and nonswarming

characteristics.

(Ord. No. 72, 1989, 4-4-89)

Sec. 4-233. Colony densities.

(a) It shall be unlawful to keep more than the following number of

colonies on any tract within the City, based upon the size or

configuration of the tract on which the apiary is situated:

(1) One-quarter (*) acre or less tract size - two (2) colonies;

(2) More than one-quarter (*) acre but less than one-half (*) acre

tract size - four (4) colonies;

(3) More than one-half (*) acre but less than one (1) acre tract size -

six (6) colonies;

(4) One (1) acre or larger tract size - eight (8) colonies; and

(5) Regardless of tract size, where all hives are situated at least two

hundred (200) feet in any direction from all property lines of the tract

on which the apiary is situated, there shall be no limit to the number

of colonies.

(b) For each two (2) colonies authorized under colony densities,

Subsection (a) above, there may be maintained upon the same tract one

(1) nucleus colony in a hive structure not exceeding one (1) standard

nine and five-eighths (9 5/8) inch depth ten (10) frame hive body with

no supers attached as required from time to time for management of

swarms. Each such nucleus colony shall be disposed of or combined with

an authorized colony within thirty (30) days after the date it is

acquired.

(June 6, 2007 BCC/PC Worksession)

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Citizen Comment:

Request by Don Weixelman, Beaver Meadows Resort Ranch, as follows: " We respectively ask that the County Commissioners consider changing the code to one that is similar to the 8.7 sign code that was in the Larimer County Land Use Code adopted in the year 1999 and then change(d) to no off premises signs sometime later. We would like the size of the signs in all districts to be at least 32 square feet in size. Please advise us as to the result of this request."

(June 18, 2007)

County Response:

Off-premises signs have not been allowed in the O-Open zoning district since November, 1973, if not longer. All off-premises signs were prohibited by 1992. This prohibition was continued when the new Land Use Code was adopted in 1999. Prior to the sign code being updated in 2005 and being re-located to Sec. 10, the sign code was in Sec. 8.7 Signs. Sec. 8.7.3 stated, "The planning director can approve a sign permit only under the following conditions: F. Only those signs that identify a legal, principal use on the same lot with the sign are allowed."

The prohibition of off-premises signs is and has been a major principle of the County's sign regulations. This has resulted in a relatively sign-free landscape in the rural areas. If this policy were to change, the potential for sign proliferation in the unincorporated area is huge. With the County adoption of the new "Directional Sign" program, eligible businesses will have the opportunity for "way finding" that serves tourists and others not familiar with the County. For these reasons, the County has no plans to amend the Land Use Code to allow off premises signs.

(August 23, 2007 BCC/PC Worksession)

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Citizen Comment:

"...rewrite regulations and have a "box" on the permit indicating if there are covenants." "Before issuing a sales tax license or issue a building permit-have the applicant indicate if there is a HOA or not."

(June 2007)

County Response:

No comment on the sales tax license issue, since that is not a Land Use Code matter.

Regarding the building permit, having a box for the applicant to indicate whether there is a HOA or not would not accomplish anything. If there is an HOA, then what? County staff does not have access to HOA documents and even if it did, does not have the time or legal basis to research them as to whether the building being applied for was consistent with the covenants. If the applicant is aware of their being an HOA and covenants, checking a box on the building permit application does not accomplish anything. It is still a matter between the property owner and the HOA. Therefore, adding such a check box is not recommended.

(August 23, 2007 BCC/PC Worksession)

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Citizen Comment:

"When the county makes a regulation such as the number of employee(s) or the amount of business trips-it is very difficult-if the home business owner is not honest. Please continue to check in the evenings after the code enforcement officer is off duty."

(June 2007)

County Response:

Using number of vehicle trips or the number of patrons to a business as "thresholds" for approval of a home occupation is often problematic. Per Sec. 4.3.10.B.2.d, "Vehicle trips associated with the home occupation, except for retail sales events, will not exceed five trips in any one day" in order for the home occupation to be allowed by right. Home occupations by minor special review allow up to 10 trips in any one day. It is not practical to monitor the number of trips per day that actually occur. The County relies upon the property owner's word and staff's analysis of reasonableness on the number of trips that will occur. Complaints on actual trips are followed up on, but often difficult if not impossible to verify. Once a home occupation is established, effective enforcement of the "trip threshold" is very difficult. Staff is not available to monitor trips during off-duty hours, and the resources are not available to effectively monitor trips during regular work hours. Staff relies upon complaints regarding the number of vehicle trips. Even then, enforcement is difficult since the number of vehicles trips can vary widely over the course of a given time period, and the vehicle trips may or may not be associated with the home business. Effective code enforcement on the trip threshold issue can occur only when the trip threshold is violated regularly and to a great extent, and based upon reliable, irrefutable evidence. That is typically hard to come by.

(August 23, 2007 BCC/PC Worksession)

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Citizen Comment:

Request to Larimer County Commissioners to define and zone crematoriums under the County Land Use Code.

Citizen proposed definition:

"A crematorium is a structure that houses one or more crematories. A crematory is an incinerator, furnace, retort, or oven used for the purpose of cremation of human or animal remains." (Colorado Department of Public Health and Environment)

Citizen proposed zoning:

"Crematoriums are not accessory uses of funeral homes, funeral chapels, mortuaries, or cemeteries. All new crematoriums and/or crematories will only be permitted in Industrial zoned areas. Any applications for expansion of existing crematoriums and crematories in zones other than Industrial will require an application for a zoning change to Industrial zoning." (February 19, 2008)

County Response:

1. Under the "old" (pre-2000) comprehensive zoning resolution:

• cemeteries were by Special Review in the FA-Farming district
• cemeteries were defined as "a tract of land set aside for interring four or more dead bodies, including columbarium's, crematories, mausoleums, and mortuaries when operated in conjunction with and located on the same premises as the cemetery."

The Resthaven Memorial Gardens cemetery was given SR approval for the addition of a funeral home (without a crematory) in 1997. The commonly accepted definitions of "funeral home" typically include a crematorium. Since the cemetery and funeral home were both under a Special Review approval, the addition of a crematory was a request to amend the current Special Review approval.

B. Under the new Land Use Code (2000):

Cemetery: A land parcel set aside for interring four or more bodies, including columbariums and mausoleums when operated in conjunction with and located on the same premises as the cemetery.

Note: crematories and mortuaries (funeral homes) were removed from the pre-2000 definition of a cemetery. A search of planning term definitions reveals that a cemetery can be defined to include funeral homes or to exclude funeral homes. Funeral homes typically include crematoriums.

Crematorium: not defined

Funeral Home: not defined

General commercial: A facility for any commercial activity that is not of an assembly, manufacturing or industrial nature.

C. Light industrial: The secondary manufacture, assembly or packaging of products from previously prepared materials, including, but not limited to, electronic instruments or devices, food and beverage processing, scientific research and testing and commercial bakeries. 

D. General industrial: Any manufacturing or industrial use, including, but not limited to, heavy equipment storage and maintenance, asphalt and concrete batch plants, fuel alcohol plants, fuel bulk plants, slaughter houses, recycling facilities and ice and cold storage plants. 

G. Hazardous materials storage and/or processing: A facility for the storage, treatment, disposal, incineration or otherwise handling of any substance or material that, by reason of its toxic, corrosive, caustic, abrasive or otherwise injurious properties, may be detrimental or deleterious to the health of any person coming into contact with such material or substance. This use category includes the collecting, storing and/or blending of hazardous waste to be used as a fuel source or alternate fuel (see subsection 8.20). 

FA Farming

21.   Cemetery (S)

FA-1 Farming

22.   Cemetery (S)

FO-Forestry

15.   Cemetery (S)

FO-1 Forestry

15.   Cemetery (S)

O-Open

24.   Cemetery (S)

RE-Rural Estate

16.   Cemetery (S)

C-Commercial

11.   General commercial (R)

I-Industrial

11.   General commercial (R/S)

25.   Light industrial (R)

26.   General industrial (S)

31.   Hazardous materials storage and handling (S)

I-1 Heavy Industrial

5.   Light industrial (R)

6.   General industrial (S)

10.   Hazardous materials storage and handling (S)

Since the Land Use Code does not include funeral homes within the definition of a cemetery, one could argue that a new funeral home would fit under the definition of "general commercial" and currently require a C or I zoning district. Therefore, a funeral home would be an allowed use in the C or I zoning district. A crematorium could be considered as accessory to a funeral home and therefore be allowed, requiring only site plan approval, or, the code could be amended to allow crematoriums as part of or separate from a funeral home only by Special Review.

Clarification, rather than interpretation, is needed.

Options:

1. Keep cemeteries as now defined in the Land Use Code, excluding funeral homes. Then, add funeral homes to only the C and I zoning districts as uses allowed by right or by special review. Decide if crematoriums, defined as being accessory to funeral homes, are allowed by right in the C and I zoning districts (with site plan approval) or require special review approval (followed by site plan approval).
2. Amend the definition of cemetery to include funeral homes. This would mean funeral homes (in cemeteries) are allowed by Special Review in the FA, FA-1, FO, FO-1, O-Open and RE-Rural Estate districts. Specifically state that crematoriums are not allowed in the FA, FA-1, FO, FO-1, O-Open and RE-Rural Estate districts. Allow stand alone funeral homes (not in cemeteries) in the C and I zones by right or by special review. Clarify that crematoriums are allowed only in the C and I districts by right or by special review.

Recommendation:

Option 2. Amend the definition of cemetery to include funeral homes. This would mean funeral homes (in cemeteries) are allowed by special review in the FA, FA-1, FO, FO-1, O-Open and RE-Rural Estate districts. Specifically state that crematoriums are not allowed in the FA, FA-1, FO, FO-1, O-Open and RE-Rural Estate districts. Allow stand alone funeral homes (not in cemeteries) by right in both the C and I zones. Clarify that crematoriums are allowed only in the C Commercial and I Industrial districts by special review. Site Plan requirements would apply.

Direction to staff at the May 14, 2008 BCC/PC joint work session:

Bring forward a proposed code amendment following Option 2 above.