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HomeMy WebLinkAbout2.0 BOCC Staff Report 12.03.2007• • Exhibits for Fleetwood Two -Family Dwelling Public Hearing held on December 3, 2007 AtoZ) A Mail Receipts B Proof of Publication C Garfield County Zoning Regulations D Garfield County Comprehensive Plan of 2000 E Garfield County Subdivision Regulations F Staff Memorandum G Application H Email from Resource Engineering dated 11/19/07 / REQUEST • • BOCC 12/03/07 FJ PROJECT INFORMATION AND STAFF COMMENTS Special Use Permit (SUP) for a Two - Family Dwelling in the ARRD zone district. APPLICANT Jennifer and Paul Fleetwood LOCATION 735 Heather Lane, Parcel 5, Christeleit Views Subdivision in Spring Valley SITE DATA 5.41 acres ACCESS CR 115 (Red Canyon Road) WATER Well (Basalt Water Conservancy District) SEWER ISDS EXISTING ZONING ARRD I. REQUEST The Applicant requests approval from the Board for a Special Use Permit for a Two -Family Dwelling which is defined in Section 2.02.21 of the Zoning Resolution of 1978, as amended as the following: A building containing two dwelling units. [Commonly referred to as a Duplex.] II. PROJECT DESCRIPTION The Applicant owns a single-family dwelling in Christeleit Views Subdivision located between Carbondale and Glenwood Springs, east of State Highway 82 in Spring Valley. The Applicant wishes to construct an addition on the single-family dwelling to include a living area, garage, kitchen, bedroom, closet and bathroom. The primary purpose of this addition is to take care of a relative at the property. Because this unit is attached to the primary residence, the Zoning Resolution defines this new configuration as a Two -Family Dwelling, more commonly called a duplex. To that end, the Applicants would like to serve the additional unit with water, sewer, and electricity from the primary dwelling. 1 • • III. SITE DESCRIPTION As mentioned above, the subject lot contains 5.41 acres and is located in Christeleit Views Subdivision located between Carbondale and Glenwood Springs, east of State Highway 82 in Spring Valley. The subdivision was approved and recorded in July, 1995. The illustrations below are (left) the County Assessor's map showing the subject parcel in red and (right) an aerial of the subdivision from Google Earth. IV. REVIEW STANDARDS & STAFF COMMENTS Special Uses are subject to the standards in Section 5.03 of the Zoning Resolution. In addition, the proposed use shall be consistent with Garfield County's definition of a Two - Family Dwelling listed in Section 2.02.21 of the Garfield County Zoning Resolution. Staff has provided the standards in bold italics below followed by a Staff Response. 1) Utilities adequate to provide water and sanitation service based on accepted engineering standards and approved by the Board of County Commissioners shall either be in place or shall be constructed in conjunction with the proposed use; Staff Finding The Applicant would like to provide water, sewer, and electricity to the addition from the primary dwelling. Presently, the existing residence is served by an individual well and septic system on the parcel. The well was approved as part of the water required for the entire Christeleit Views Subdivision where each of the five lots in the subdivision had a well which was augmented by a Basalt Water Conservancy District Contract. That contract (No. 207) allowed for an Accessory Dwelling Unit (ADU) on each lot. Staff contacted Resource Engineering as they are the District Engineer for BWCD which provided the following comments that demonstrate the water contract can serve the additional unit. 2 • • "BWCD Contract Nos. 127 and 205 are in the name of Christeleit Subdivision Homeowners Association, which includes both the Christeleit and Christeleit Views �S Subdivision. Contract No 127 is for Lots A, B, C, D, and E. Contract No. 205 is for tr) Lot F,rhichwas further subdivided into the 7 Lots of Christeleit Views. Contract ,;� 205 covers the in-house use for 14 single family units (2 units per lot characterized as a single family home and a detached ADU) and 14,000 square K feet ofJrrigation (2000 square feet per lot)." "You asked the question about whether the detached ADU was assumed to be a full single family home equivalent or a fractional equivalent. The engineering basis for the contract assumes the ADU to be a full single family home equivalent in terms of water use. Therefore, an attached ADU (or DUPLEX according to County Code) would be covered by the BWCD contract." Regarding wastewater, the existing dwelling has an approved ISDS permitted by Garfield County in 1995 and was constructed when the residence was built by the former owner, Troy Terrell, and has a septic tank capacity of 1,000 gallons. This existing system was designed to serve three bedrooms. The new additional unit contains 1 additional bedroom which requires a system be designed to handle 1,250 gallons. Prior to issuance of a Special Use Permit, the Applicant shall need to upgrade the septic system and obtain approval from the Building and Planning Department. 2) Street improvements adequate to accommodate traffic volume generated by the proposed use and to provide safe, convenient access to the use shall either be in place or shall be constructed in conjunction with the proposed use; Staff Finding The purpose of the additional unit is to provide a living space for a relative to be in close proximity to the family. The additional traffic generation produced by this new use will be very limited so as to not require any additional upgrades to the County Road System. 3) Design of the proposed use is organized to minimize impact on and from adjacent uses of land through installation of screen fences or landscape materials on the periphery of the lot and by location of intensively utilized areas, access points, lighting and signs in such a manner as to protect established neighborhood character; Staff Finding The Applicant provided a set of plans / building elevations that show the addition will not result in a negative visual impact on the neighborhood. This property is a larger 5 -acre property and this use will only result in a minimal enlargement of the existing single- family dwelling. V. SUGGESTED FINDINGS 1. That proper public notice was provided as required for the hearing before the Board of County Commissioners. • • 2. That the hearing before the Board of County Commissioners was extensive and complete, that all pertinent facts, matters and issues were submitted and that all interested parties were heard at that meeting. 3. That for the above stated and other reasons, the proposed Special Use Permit for a Two -Family Dwelling is in the best interest of the health, safety, morals, convenience, order, prosperity and welfare of the citizens of Garfield County. 4. That the application is in conformance with Section 5.03 of the Garfield County Zoning Resolution of 1978, as amended. VI. STAFF RECOMMENDATION Staff recommends the Board of County Commissioners APPROVE the request for a Special Use permit to allow a Two -Family Dwelling for a property located at 735 Heather Lane, Parcel 5, Christeleit Views Subdivision in Spring Valley, Garfield County with the following conditions: 1. That all representations made by the Applicant in the application, and at the public hearing before the Board of County Commissioners, shall be conditions of approval, unless specifically altered by the Board of County Commissioners. 2. Any physical changes to the Two -Family Dwelling may require a building permit from the �-.. Garfield County Building Department. 3. All lighting associated with the property shall be directed inward and downward towards the interior of the property. 4. Prior to issuance of a Speec! 6'c; P the Applicant shall upgrade the septic system and obtain approval from the Building and Planning Department. (-2___. ' 1 // & 17)5 1 / 1 '-' 5 7 5" kut-) 4' R,�, Z IIS -4 --(4- -IA.5��t50 l z '7 5. -b4 © .i51iiy �, -1- 4 Fred Jarman • • Page 1 of 1 \II°\ From: Michael Erion [MErion@resource-eng.com] Sent: Monday, November 19, 2007 3:00 PM To: Fred Jarman Subject: BWCD - Christeleit Subdivision Fred: This email letter is a follow up to your inquiry about the October 4, 2007 RESOURCE Memorandum from Melody Morris to Jennier Fleetwood. Resource Engineering, Inc. is the District Engineer for BWCD and Melody Morris is the account and contract administrator. BWCD Contract Nos. 127 and 205 are in the name of Christeleit Subdivision Homeowners Association, which includes both the Christeleit and Christeleit Views Subdivision. Contract No 127 is for Lots A, B, C, D, and E. Contrcat No. 205 is for Lot F, which was further subdivided into the 7 Lots of Christeleit Views. Contract No. 205 covers the in-house use for 14 single family units (2 units per lot characterized as a single family home and a detached ADU) and 14,000 square feet of irrigation (2000 square feet per lot). You asked the question about whether the detached ADU was assumed to be a full single family home equivalent or a fractional equivalent. The engineering basis for the contract assumes the ADU to be a full single family home equivalent in terms of water use. Therefore, an attached ADU (or DUPLEX according to County Code) would be covered by the BWCD contract. Please call if you have any questions or need additional information. Regards, Michael Michael Erion, P.E. Water Resources Engineer (970) 945-6777 Voice (970) 945-1137 Facsimile www.resource-eng.com 'RESOURCE The information contained in this e-mail is PRIVILEGED AND CONFIDENTIAL information intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone and delete the original message from your system. Thank You. 11/26/2007 Please Reply To: 201 North Mill Street, Suite 102 Aspen, Colorado 81611 (970) 925-9393 Fax (970) 925-9396 VIA HAND DELIVERY • • NEILEY & ALDER ATTORNEYS RICHARD Y. NEILEY, JR. EUGENE M. ALDER JOHN F. NEILEY November 29, 2007 6800 Highway 82, Suite 1, Upper Level Glenwood Springs, Colorado 81601 (970) 928-9393 Fax (970) 928-9399 Garfield County Board of County Commissioners c/o Garfield County Planning Department 108 86' Street Glenwood Springs, CO 81601 Re: Paul and Jennifer Fleetwood Application for Special Use Permit — Lot 5 Christeleit Views Subdivision, 0735 Heather Lane, Glenwood Springs, Colorado Dear Commissioners: This office represents Kathy and Dieter Cantrup, the owners of the real property located at 0745 Heather Lane which is immediately adjacent to the above -referenced property, located within the Christeleit Views Subdivision. My clients have received notice that Paul and Jennifer Fleetwood (the "Applicants") have applied for a special use permit seeking approval for the construction of a two-family residential building on their property. For the reasons set forth herein, my clients oppose this application. A two-family dwelling is a use permitted only by special review within the underlying zone district. Special review procedures are governed by Garfield County Zoning Resolution section 9.03 which requires compliance with the Supplementary Regulations contained in section 5.03 of the Resolution. The Applicants cannot comply with these requirements. Zoning Resolution section 5.03(1) requires the Applicants to demonstrate that there are "utilities adequate to provide water and sanitation service based on accepted engineering standards ...." To address this requirement the Applicants have attached to the application the subdivision' s water allocation contracts. These do not demonstrate an adequate supply of potable water to serve a second residence on the property. Indeed, the subdivision itself, through its Covenants, limits the number of residential units on each lot to one dwelling only precisely because of concerns regarding the availability of an adequate supply of potable water. Christeleit Views Subdivision is comprised of seven lots and shares its water with Christeleit Subdivision, which is comprised of five lots. Both subdivisions rely on a water system comprised of one well, which does not provide an adequate physical supply of water to allow two dwelling units per lot. The Applicants have not obtained approval from the subdivision boards that are in charge of and govern the water supply. Nor have the Applicants provided any engineering reports that establish the required level of adequacy of water service. • • Letter to Garfield County Board of County Commissioners November 29, 2007 Page 2 Zoning Resolution section 5.03(3) provides that the Applicants must demonstrate that the "design of the proposed use is organized to minimize impact on and from adjacent uses of land through installation of screen fences or landscape materials on the periphery of the lot and by location of intensively utilized areas, access points, lighting and signs in such a manner to protect established neighborhood character." The Applicants cannot comply with this section of the Zoning Resolution. The established character of the neighborhood is that of single family residences. The Covenants of the subdivision require every owner to obtain prior approval of new improvements from the subdivision Architectural Control Committee. The Covenants mandate a consideration of "the effect of any proposed improvement on the viewplane of any adjacent or neighboring property." The Applicants have not obtained Architectural Control Committee approval for their plans as submitted with the special review application. Those plans, if constructed, would completely block the Cantrup's views of Mount Sopris, one of the premier characteristics of the subdivision, in direct violation of the subdivision's Declaration of Protective Covenants. The Declaration of Protective Covenants expressly prohibits any uses other than one single family dwelling and associated outbuildings per lot. Duplex structures, accessory dwelling units, guest houses and other residential uses in excess of one single family dwelling unit per lot are prohibited. The special use proposed by the Applicants is not allowed within the subdivision. While the Cantrup's do not expect Garfield County to accept responsibility for enforcement of private subdivision covenants, nonetheless the Commissioners should not grant an affirmative right to an Applicant that violates such covenants. The result of the approval of this application would be that the Cantrups and the homeowner's association would be placed in a position of having to seek judicial enforcement of the Covenants in circumstances where the Applicants cannot demonstrate their entitlement to special use review approval. The Fleetwood's application for special use approval does not comply with the requirements of the Garfield County Zoning Resolution. The requested approval expressly violates the Covenants of the homeowners association in which the Applicants' property is located. Therefore, the Cantrups respectfully request that t application for special use approval be denied. V i t ly yours, N E & ALDER Richard Y. Neiley, Jr. RYN/agk Cc: Kathy and Dieter Cantrup Christeleit Views Subdivision Homeowner's Association Paul and Jennifer Fleetwood DISTRICT COURT, GARFIELD COUNTY, COLORADO Court Address: 109 Eighth Street Glenwood Springs, CO 81601 (970) 945-5075 Plaintiffs: KATHY CANTRUP and DIETER CANTRUP and CHRISTELEIT VIEWS SUBDIVISION HOMEOWNERS ASSOCIATION, a Colorado non-profit corporation, v. Defendants: PAUL FLEETWOOD and JENNIFER FLEETWOOD Case Number: 2008 CV 357 Div.: Ctrm: Whitsitt & Gross, P.C. Timothy E. Whitsitt 320 Main Street, Suite 200 Carbondale, CO 81623 Phone Number: (970)963-6363 FAX Number: (970)963-6667 E-mail: whitsittAroaringforklaw.com Atty. Reg. #: 05962 TRIAL SUBPOENA The People of the State of Colorado: Fred Jarman, Garfield County Planner 108 8th Street, 4th Floor Glenwood Springs, CO 81601 You are ordered to attend and give testimony at trial in the captioned matter filed in the District Court of Garfield County, at the Garfield County Court Room located on the First Floor of the Garfield County Courthouse, 109 8th Street, Glenwood Springs, CO 81601 at 9:00 a.m. on Tuesday, April 14, 2009, as a witness for defendants Jennifer and Paul Fleetwood. Dated: March 23, 2009 Respectfully submitted; WHI _ITT & GROSS, P.C. By:_ Timo h E. itsitt Attorney ' or efendants JENNIFER and PAUL FLEETWOOD DISTRICT COURT, GARFIELD COUNTY, COLORADO Court Address: 109 Eighth Street Glenwood Springs, CO 81601 (970) 945-5075 Plaintiffs: KATHY CANTRUP and DIETER CANTRUP and CHRISTELEIT VIEWS SUBDIVISION HOMEOWNERS ASSOCIATION, a Colorado non-profit corporation, v. Defendants: PAUL FLEETWOOD and JENNIFER FLEETWOOD Case Number: 2008 CV 357 Div.: Ctrm: Whitsitt & Gross, P.C. Timothy E. Whitsitt 320 Main Street, Suite 200 Carbondale, CO 81623 Phone Number: (970)963-6363 FAX Number: (970)963-6667 E-mail: whitsittna,roaringforklaw.com Atty. Reg. #: 05962 RETURN OF SERVICE STATE OF COLORADO COUNTY OF Declare under oath that I served this Trial Subpoena in this case to, Fred Jarman, on in County, Colorado, on , 2009, at the following location: at Time ❑ by handing it to a person identified to me as the defendant. ❑ by leaving it with the defendant who refused service. ❑ by leaving it with designated to receive service for the defendant. ❑ I am over the age of 18 years and am not interested in nor a party to this case. ❑ I attempted to serve the defendant on occasions but have not been able to locate the defendant. Return to the plaintiff is made on Subscribed and sworn to before me this day of , 2009, in County, State of Colorado. Notary Public* Date ❑ Private process server ❑ Sheriff, Service $ *Notary should include address and expiration date of commission. Mileage $ County TIMOTHY E. WHITSITT whitsitt@roaringforklaw. com ERIC J. GRoss* ejg@roaringforklaw.com .Also admitted in Massachusetts WNITSITT & GRASS, P.C. LAWYERS 320 MAIN STREET, SUITE 200 CARDONDALE, COLORADO 81623 TELEPHONE: (970) 963-6363 FACSIMILE: (970) 963-6667 March 24, 2009 ADRIENNE C. ROWBERRY arowberry@roaringforklaw.com CHERYL A. HASSELBRING Paralegal cheryl@roaringforklaw.com Mr. Fred Jarman Garfield County Building Dept. 108 8th Street, 4th Floor Glenwood Springs, CO 81601 RE: Kathy Cantrup; Dieter Cantrup and Christeleit Views Subdivision Homeowners Association, Garfield County District Court Case No. 2008 CV 357 Dear Mr Jarman; Enclosed please find a subpoena which commands your attendance in Garfield District Court as a witness for Paul and Jennifer Fleetwood in the above captioned matter. Also enclosed is a check in the amount of $7.55, which represents a $2.50 witness fee as set by Colorado statute and a $5.05 mileage fee as set by the IRS. Please feel free to contact either myself or Tim Whitsitt if you have any questions regarding this matter. Yours Truly, WHITSITT & GROSS, P.C. By: Enclosures Jeanne Hayes Legal Assistant 109 1 THE COURT: I wonder if you could step this 2 direction and then I will ask you to raise your right hand. 3 THE WITNESS: Very good. 4 FREDERICK A. JARMAN, 5 called as a witness by the Defendants, having been duly sworn, 6 testified as follows: V THE COURT: All right. Please have a seat. 8 DIRECT EXAMINATION 9 BY MR. WHITSITT: 10 Q. Good afternoon. Would you state your full name 11 and your work address, please? 12 A. My name is Frederick Alexander Jarman, and the 13 work address is 108 8th Street, Glenwood Springs. 34 Q. What's your current occupation, Mr. Jarman? 5 A. I'm the current Director of the Building and 16 Planning Department for Garfield County. 17 Q. Give us, if you will, just a real brief summary of 18 your training and experience in community planning and zoning. 19 A. I have a -- an undergrad degree from Virginia in 20 Political Science, moved on to a Master's Degree in Community 21 Regional Planning. 22 From there I served for a private consultant in 23 Oregon. Came here since 2000, working in the public sector 24 with the City of Aspen, and then the last six years with 25 Garfield County. 110 1 Q. Six years with Garfield County? 2 A. That's correct. 3 Q. All in the same position as Director of Community 4 Planning? 5 A. Various planning positions. I've been Director 6 since 2006. 7 Q. Okay. In that work history and in your current 8 job, do you have -- ever have any occasion to deal with 9 subdivision covenants? 10 A. Yes. 11 Q. And in what context? 12 A. Garfield County, through the context of 13 subdivisions requires that a subdivision put in place 14 Covenants, Conditions and Restrictions. Those are viewed by 15 our office and then ultimately reviewed by the Board of County 16 Commissioners. 17 Q. Now, it's my understanding, and correct me if I'm 18 wrong, that the Garfield County Commissioners, or you in your 19 position, don't enforce subdivision Covenants? 20 A. That's correct. With one caveat. And that is 21 only if the Board of County Commissioners finds a specific 22 condition that they request be placed into Covenants, then 23 they have the ability to enforce that specific Covenant. 24 Q. And you're aware this afternoon we're -- this case 25 that we're here for is in -- deals with property in the 111 1 Christeleit Views Subdivision? Are you familiar with that 2 subdivision? 3 A. Yes. 4 Q. Have you also had an opportunity on occasion to 5 review the Covenants of the subdivision? 6 A. Briefly. 7 Q. Okay. Are you also familiar -- or do you recall 8 an application by Paul and Jennifer Fleetwood, filed in 2007, 9 for County approval in relation to their lot in the 10 Christeleit Views Subdivision? 11 A. Yes. 12 Q. And I'il refer you -- there's a white loose-leaf 13 binder in front of you that's an exhibit book. If you'll flip 14 to Exhibits 5 and then 6. Is the white one there? 15 A. No. I've got a black one. 16 Q. It's hiding under here. That's why. Can you 17 identify Exhibits 5 and 6? 18 A. Exhibit 5 is the Special Use Permit Application 19 form, the front cover of that form, followed by the typical 20 application submittal requirements that the County requires. 21 And then Tab 6 includes the supporting submittal narrative 22 submitted by the Fleetwoods it looks like here, in response to 23 the application requirements. 24 Q. And now what is your understanding of what the 25 Fleetwoods were trying to accomplish? What were they applying 112 1 for? 2 A. They -- in -- the way it was presented to us was 3 they were hoping to construct an addition to their house so 4 that their mother could live with them, within that location. 5 They originally had requested approval for an accessory 6 dwelling unit, and then that was amended for that of a duplex. 7 For a two-family dwelling. 8 Q. And why was that? 9 A. The -- it was our understanding that what they 10 wanted to do was to have that structure as a part of their 11 main house to do that. The County's definition of an 12 accessory dwelling unit is only a detached structure, so if 13 you're going to make an addition to your house, that is 14 actually called a two --family dwelling by structure. So you 15 have two units within the shell of one building. 16 Q. Okay. And so was it the direction of the 17 Community Development that they -- in order to do what they 18 wanted to do, they had to file for this Special Use Permit? 19 A. That's correct. 20 Q. And they did so. Were you involved in the 21 processing of that permit? 22 A. Yes. 23 Q. And is -- does the County have any requirements 24 with respect to proof of water supply in order to process a 25 permit like this? 113 1 A. Yes. 2 Q. Explain briefly what is involved there. 3 A. Generically the County has two requirements, one 4 being that it's a physical water supply that could support a 5 -- an additional unit, that being typically 350 gallons per 6 dwelling unit. And that's -- the calculation basically runs 7 that it's 100 gallons per person per day, based on a 3.5 8 person household. So there's the 350. 9 And then the legal supply is -- even more importantly 10 here, that there's proof that there's a legal supply of -- 11 adequate legal supply of water. 12 Q. Did you undertake that evaluation with respect to 13 the Fleetwoods' application? 14 A. Yes. 15 Q. And what was the -- your determination? 16 A. We determined that -- based on what we understood 17 from the well production that there was certainly water 18 capacity there. The main question that really arose was the 19 fact that the legal supply was not characteristic of the legal 20 documentation in place for the well. 21 We looked at the Basalt Water Conservancy District 22 contract that was in place, and read from that that there was 23 adequate -- more than frankly, adequate water, legally, to 24 serve what their proposed use was. 25 Q. Okay. And what -- you know, getting to the bottom 114 1 of it, what was the element or what was the thing that the 2 Fleetwoods wanted to do that forced them to file anything with 3 the County? Any kind of a permit application at all? 4 A. Well, if I understand your question right, in 5 order to have a second dwelling you've got to prove out these 6 things. The County's zoning requirements require a Special 7 Use Permit to do anything -- to add an additional unit onto 8 your lot. Whether that's an attached dwelling or not, both of 9 which require a Special Permit review. 10 Q. And they proposed to add, as a part of this 11 addition, if they were just adding an addition, a bedroom, 12 bathrooms, they wouldn't have needed any requirement [sicl, 13 correct? Any permit? 14 A. The -- not a Land Use Permit. They certainly 15 would need Building Permits. 16 Q. A Building Permit. 17 A. But not Land Use Permit. 18 Q. Not a discretionary Land Use Permit. 19 A. That's correct. 20 Q. But in fact, beyond adding bedrooms, bathroom, 21 they were proposing to add a kitchen, were they not? 22 A. That's correct. 23 Q. And is it that kitchen element that puts them in a 24 different category? 25 A. Yes. We have held for a long, long time that -- 115 1 in fact I can say this, at least the last 20 plus years, the 2 kitchen makes a living space what we call sort of self - 3 sustainable so that you can have a space that functions 4 independently from another. So by adding the kitchen it 5 allowed a family unit per se, or someone to live independently 6 from another part of the structure. 7 Q. Did the Fleetwoods also in the course of their 8 application, submit information to you or to your Department, 9 with respect to reviews by the neighborhood association, by 10 the Homeowners Association? 11 A. I believe that's correct. 12 Q. I want you to turn at -- now to the black 13 notebook, the other one in front of you, to Tab T. 14 A. Okay. 15 Q. Do you have that open in front of you? 16 A. Yes. 17 Q. I want you to look at that document and see if you 18 recognize that. 19 A. I believe that this was tendered to us, to the 20 County, with the application materials for the -- for their 21 application. 22 Q. And can you give us a rough time frame in which 23 this -- that would have happened? 24 A. This looks to be in the fall of '07 when the 25 meeting took place, if I'm reading this right. And we 116 1 processed that application, if I remember correctly, at the 2 end of the year. 3 Q. And if you'll turn -- and I apologize for bouncing 4 back and forth -- in the white notebook there's a Tab 11, 5 Exhibit 11. 6 A. Okay. 7 Q. Do you recognize that document? 8 A. Yes. 9 Q. That's basically the Community Development's 10 acceptance of the Fleetwoods' application, confirming that the 11 application is complete? 12 A. Correct. 13 Q. And that would have been issued after you had 14 received this Exhibit T, all of the other application 15 information from the Fleetwoods? 16 A. That's correct. 17 Q. So you received Exhibit T, along with other 18 documentation some time before October 11th? 19 A. That's correct. 20 Q. Now, were you in attendance at the Board of County 21 Commissioners hearing on this matter on December 3=d? 22 A. Yes. 23 Q. What was the result of that hearing? 24 A. The Board of County Commissioners found that the 25 applicant had met the requirements that the County requires 117 1 and granted a Special Use Permit, with conditions -- it was an 2 approval with conditions -- for a two-family dwelling. 3 Q. And if you need reference, the white -- I want you 4 to look at the white notebook again, Tabs 12 and 13, which 5 have been admitted into evidence. Do you recognize those 6 documents? 7 A. Yes. 8 Q. And what are those? 9 A. Tab 12 is a letter that I authored to the 10 Fleetwoods that indicated -- it memorialized, basically, the 11 action that took place on December 3rd, that the Board had 12 approved the two-family dwelling application with those five 13 conditions. 14 And so it was basically a to-do list for them. 15 And then Tab 13 is a letter that included the actual -- it 16 looks like it's got both. It's got a copy of the recorded 17 Special Use Permit itself that was issued, as well as a copy 18 of the -- of Resolution 2008-10, that memorialized the action 19 of the Board. 20 Q. Okay. Now, at the hearing itself do you have 21 recollection of neighbors being in attendance and expressing 22 concerns about Covenant violations? About how this may 23 violate Covenants? 24 A. Yes. 25 Q. Was there anything done by the Commissioners or 118 1 added to this approval, to address that issue? 2 A. It -- in -- well, in my view, the response that -- 3 I think it was Commissioner Larry McCown had made the motion 4 -- was that because of the issue of the potential for sale of 5 a -- of the unit being created, which in theory, you're 6 creating a duplex or a two-family dwelling, one and the same, 7 that you could sell one unit independent of the other, for 8 sale in the free market. 9 To get to that issue, which was an issue that was 10 raised by members of the public who were adjacent property 11 owners, the -- Commissioners McCown recommended that a deed 12 restriction be placed on the property that basically said you 13 can't do that. You can't sell that unit independent of the 14 house. It will always be one salable lot and structure all 15 together. 16 Q. Indivisible. 17 A. So it could -- indivisible. Correct. 18 Q. Does that address the issue of -- in other words 19 is -- does this function like a duplex would function in any 20 other context then, with that deed restriction in place? 21 A. Not in the sense that you can't sell it. 22 Q. And that's going to be a permanent deed 23 restriction on it? 24 A. That's correct. 25 Q. When will that deed restriction be put in place? 119 1 A. It should be in place now. 2 Q. Okay. So it's a matter of getting the 3 paperwork -- 4 A. That's correct. 5 Q. -- completed on it? 6 A. Right. 7 Q. So is -- in your understanding, is this unit given 8 the restriction, the condition that's on it, in any sense of 9 the word, a duplex unit? 10 A. It's only a duplex in -- if you look at the permit 11 that was issued it says "Two-family dwelling." So really, 12 even the term "duplex" is not a term that's even listed in the 13 Land Use Code per se, but as it functions, it functions as a 14 single-family house that has what we would typically call a 15 "mother -in --law apartment . " 16 It's -- you know, it's by sort of the precarious 17 nature of our Land Use Code that you can't even have an ADU 18 that is attached to a dwelling. That's really the reason we 19 went down this road with the applicants. It's a challenge 20 that not only -- in my view, that they've had a -- had to 21 wrestle with, but we're addressing that now. 22 But that's more than you probably wanted to hear. 23 But no. The answer is it doesn't -- as it's defined in the 24 Land Use Code, it does not function as a two-family dwelling. 25 Q. Thank you very much. 120 1 MR. WHITSITT: That's all the questions. 2 THE COURT: All right. Cross-examination? 3 MR. JOHN NEILEY: Thank you, Your Honor. 4 CROSS-EXAMINATION 5 BY MR. JOHN NEILEY: 6 Q. Mr. Jarman, let me turn to that last point first. 7 You testified that the Fleetwood residence as approved does 8 not function as a two-family dwelling. But in fact the only 9 distinction between this and any other duplex is that you 10 couldn't condominiumize is and sell the units to separate 11 owners, correct? 12 A. That's correct. 13 Q. Now, under the terms of the Land Use Code, this is 14 in fact a two-family dwelling, correct? 15 A. Yes. 16 Q. And the trigger point for that is the second 17 kitchen in the building? 18 A. Correct. 19 Q. And in fact you're aware that there are physically 20 two separate units on this property that are connected by a 21 garage, correct? 22 A. That's correct. Although I recall that part of 23 the -- and I may be wrong on this, but I thought there was a 24 hallway connection with a door, but I could be mistaken on 25 that. 121 1 Q. Now, in stating that this doesn't function as a 2 duplex or a two-family dwelling, you don't dispute the fact 3 that it can be rented to two separate families? 4 A. That's correct. 5 Q. Or that two separate families can live in there 6 whether it's rented or not? 7 A. That's correct. 8 Q. It doesn't have to be occupied by a mother-in-law, 9 it could be occupied by another family with two kids? 10 A. It could. I need to be clear though on this, and 11 that is the way that the hearing went before the Board of 12 County Commissioners, the Fleetwoods testified to the Board 13 that their intention was to put their family members -- their 14 mother, in that unit. 15 There wasn't any other testimony that said, "Oh, 16 by the way, we're going to put someone else in there." So I 17 just wanted to put that out there. 18 Q. Well, but the deed restriction doesn't limit it to 19 occupancy by a family member? 20 A. That's correct. 21 Q. And it doesn't limit it to the occupancy by 22 Jennifer Fleetwood's mother, correct? 23 A. Correct. 24 Q. And if the property were sold down the road to a 25 third party, that third party, regardless of the Fleetwoods' 122 1 representations to the County, could rent the extra unit to 2 anyone they wanted? 3 A. I believe that's correct. 4 Q. With respect to the water, do you know whether or 5 not the Fleetwoods actually submitted an engineering report 6 regarding the physical capabilities of the water system to 7 provide an adequate supply of water? 8 A. I don't believe there was an engineer report. 9 Q. And the Basalt Water Conservancy Augmentation 10 contract, I think as you testified, established the legal 11 basis for determining an adequate supply, correct? 12 A. That's correct. 13 Q. And would you agree with me that that document is 14 an augmentation plan that doesn't relate to the physical 15 capacity? 16 A. That's correct. 17 Q. Okay. 18 A. Yeah. 19 Q. In fact, before you can drill a well in certain 20 places you have to have your augmentation plan in place, and 21 one way of doing that is to buy a contract from the Basalt 22 Water Conservancy District? 23 A. Yes. 24 Q. Okay. 25 A. Yeah. 123 1 Q. Now, you testified that you briefly reviewed the 2 Covenants, and you were aware that single-family residences 3 were only permitted in the Christeleit Views Subdivision, 4 right? 5 A. In the Covenants -- 6 6 Q. Yes. 7 A. -- that's correct. 8 Q. And I believe the minutes reflect that you 9 reported to the County Commissioner and the County 10 Commissioners in essence confirmed that it's really not the 11 County's business to get involved in private Covenants? 12 A. That's correct. I believe I was fairly specific 13 in telling them the Covenants said that there was a 14 prohibition in place. 15 Q. The minutes reflect that -- 16 A. Good. 17 Q. 18 A. Perfect. 19 Q. And you'll agree with me that private subdivision 20 Covenants can be more restrictive in terms of uses, number of 21 units, etc., than the Land Use Code of Garfield County? 22 A. Yes. 23 Q. Okay. But I think your point to the Commissioners 24 was that the County doesn't get involved in enforcing the 25 private contract between individual property owners? 124 1 A. Right. 2 Q. You were at the December 3, 2007 meeting, and 3 would it be fair to say that quite a number of the owners in 4 the subdivision objected publicly to the proposal of the 5 Fleetwoods? 6 A. Yes. 7 Q. And their objection was based on impacts on views, 8 correct? 9 A. Yes. 10 Q. And the impact on the water system? 11 A. That's correct. 12 Q. The fact that the Fleetwoods, according to some of 13 the owners, had not received approval from the Architectural 14 Committee? 15 A. Correct. 16 Q. The fact that their proposal violated the 17 Covenants? 18 A. Correct. 19 Q. And both Paul and Jennifer Fleetwood were at that 20 meeting? 21 A. Yes. 22 Q. And they indeed responded to these objections by 23 their neighbors? 24 A. Yes. 25 Q. Okay. So you would agree with me that they were 125 1 aware of the neighborhood concerns? 2 A. At that meeting, that's correct. 3 Q. Okay. Now, when you looked at Exhibit T in the 4 black notebook, which is that document signed by Jennifer 5 Fleetwood that she had received approval from five of the six 6 homeowners that was -- that were in attendance at the 7 September 6, 2007 meeting, I think you said that that was a 8 requirement of the Land Use Code? 9 A. No, I didn't say that. 10 Q. Oh, okay. Maybe I misunderstood you. Why did 11 that have to be submitted to you with the -- for the 12 application to be complete? 13 A. It didn't. 14 Q. Do you know if that was in fact submitted with the 15 original application? 16 A. I don't know that. We -- and the reason for that, 17 we had a land use planner who was working on this prior to my 18 involvement. That planner has since left the office, so it 19 was a hand-off to me. And that's why you saw the signature 20 line on the technical compliance letter was a Christina 21 Montalvo and not myself. So -- 22 Q. But this Exhibit T would not have been required 23 for them to be in technical compliance to move forward with 24 their application, is that correct? 25 A. That's correct. 126 1 Q. Okay. So this could very well have been submitted 2 before the Homeowners -- or the Board of County Commissioners 3 meeting or at the Board of County Commissioners meeting? 4 A. Yes. 5 Q. Okay. So in that regard, if that document is 6 incorrect, if in fact those approvals weren't granted, that 7 wouldn't invalidate the permit from the County's point of 8 view? 9 A. That's correct. As I said before, this is not a 10 requirement of the Land Use Code. 11 Q. Okay. And finally, there's really three different 12 types of additional units that could be constructed on a lot 13 of this type. One would be a guest house, correct? 14 A. Correct. 15 Q. And that would be a detached unit? 16 A. That's correct. 17 Q. A second would be the ADU or accessory dwelling 18 unit, and that would be a detached unit? 19 A. Correct. 20 Q. So if the Covenants prohibited detached 21 residential units, then that could cause a problem with the 22 Homeowners Association. Not necessarily with the County 23 though? 24 A. Correct. 25 Q. Okay. And then finally you have what is the two- 127 1 family dwelling unit or the duplex -- 2 A. Correct. 3 Q. -- correct? And the County considers this a 4 duplex, notwithstanding the fact that there's a deed 5 restriction that says they can't sell the two unit separately? 6 A. Correct. 7 MR. NEILEY: Nothing further. Thank you. 8 THE COURT: All right. Redirect? 9 MR. WHITSITT: Thank you, Your Honor. 10 REDIRECT EXAMINATION 11 BY MR. WHITSITT: 12 Q. Mr. Jarman, forgetting the Fleetwoods' situation 13 for a moment, in fact anybody who has a spare bedroom in 14 Garfield County, can rent that bedroom out to a person or a 15 family? 16 A. That is not entirely correct. They -- I'd have to 17 look at my Land Use Code, which I don't have in front of me to 18 see, but there is a realm where you get into the rent for 19 compensation issue which is really a rooming/boarding house 20 scenario, and in some of those cases you'll have shared 21 kitchens and you have three or four bedrooms that those 22 scenarios would allow for rent. That is a specific use called 23 out in the Land Use Code, different from how a single-family 24 unit functions. 25 Q. Well, it would be possible for someone in the 128 1 Christeleit Views Subdivision, for instance, to rent out or 2 allow a family member to sleep in a detached office building 3 on their property, would it not? 4 A. Again, we really try -- the uses that we would see 5 -- that would prevail within the Land Use Code is a single - 6 family house as it functions used by right. It really does 7 not address a standalone unit outside of that single family 8 house. So if someone, for example, was renting the top of a 9 garage out to somebody else, we would probably see that as a 10 violation of the Land Use Code. 11 MR. WHITSITT: No further questions. Thank you. 12 THE COURT: All right. It doesn't appear that 13 there is any recross and therefore, you may step down. 14 THE WITNESS: Thank you. 15 MR. WHITSITT: Thank you, Your Honor. And unless 16 there's something further, can -- may we excuse Mr. Jarman? 17 MR. JOHN NEILEY: Sure. 18 MR. RICHARD NEILEY: Yes. 19 THE WITNESS: Thank you. 20 THE COURT: Thank you, sir. 21 MR. WHITSITT: Thank you. 22 THE COURT: You are excused. 23 (Witness stands down) 24 MR. WHITSITT: Your Honor, we'd call next, 25 Jennifer Fleetwood.