HomeMy WebLinkAbout2.0 BOCC Staff Report 10.18.2004• •
Exhibits for Wilks Exemption Public Hearing held on October 18, 2004
Exhibit i. etter
Exhibit
A
B
Mail Receipts
Proof of Publication
C
Garfield County Zoning Regulations of 1978, as amended
D
Garfield County Comprehensive Plan of 2000
E
Garfield County Subdivision Regulations of 1984, as amended
F
Staff Memorandum
G
Application
H
Email from the County Road and Bridge Department dated 9/23/04
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BOCC 10/18/04
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PROJECT INFORMATION AND STAFF COMMENTS
REQUEST Exemption from the Definition of Subdivision
APPLICANT Maria Gloria Wilks & Edward Jacob Wilks
REPRESENTATIVE Stuver, LeMoine & Burwell
LOCATION W1/2 SE1/4, Section 34, Township 5 South,
Range 92 West of the 6th PM (approximately 2
miles west of Silt, north of I-70)
SITE DATA 81 acre parcel (approximately)
WATER Shared Well
SEWER Individual Sewage Disposal System
ACCESS CR 233 (Silt Mesa Road)
EXISTING ZONING ARRD
ADJACENT ZONING ARRD
I. DESCRIPTION OF THE PROPOSAL
The Site: The property is generally located approximately 2 miles west of Silt and approximately 1
mile north of I-70 in the Silt Mesa area. The property's topography is undulating with steep hillsides
as well as relatively flat and fenced pasture areas. The Silt Pump Canal, located within an 80 -foot
wide easement traverses the lower half of the property. A single family residence which has been
converted to an Accessory Dwelling Unit (ADU) and various agricultural outbuildings as are located
north of the canal and a single family residence is located south of the canal. Both portions of the
property have direct access from CR 233. Both residences share an existing well and each has an
individual sewage disposal system (ISDS) for wastewater.
The Proposal: The Applicant proposes to formally split their 81 acre property into two lots (Lot A
having 70.86 acres and Lot B having 10.6 acres) stating that the Silt Pump Canal (located in an 80 -
foot wide easement that traverses the property) effectively splits their property into the two lots and
as a result prevents joint use of the property.
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II. REFERRAL COMMENTS
Staff referred the application to the following agencies / County Departments for their review and
comment. Comments received are attached as exhibits and incorporated into the memorandum where
applicable:
a) City of Rifle: No objections to the proposal. (Exhibit I)
b) Rifle Fire Protection District: In the application
c) Town of Silt: No comments received
d) Garfield County Road and Bridge Department: (Exhibit H)
e) Garfield County Vegetation Management Department: No comments received 0141. k -
III. RELATIONSHIP TO THE COMPREHENSIVE PLAN
The subject property is located in Study Area II and is designated as "Low Density Residential" on
the proposed land use district map of the Comprehensive Plan which suggests an overall density of
2 acres per dwelling unit or greater. The proposal, if approved, will result in an overall density of 40
acres per dwelling unit which is consistent with the suggested Comprehensive Plan density.
IV. MAJOR ISSUES AND CONCERNS
A. Subdivision Regulations. Section 8.52 of the Garfield County Subdivision Regulations
states that "No more than a total of four (4) lots, parcels, interests or dwelling units will be
created from any parcel, as that parcel was described in the records of the Garfield County
Clerk and Recorder 's Office on January 1, 1973. In order to qualify for exemption, the parcel
as it existed on January 1, 1973, must have been larger than thirty five (35) acres in size at that
time and not a part of a recorded subdivision; however, any parcel to be divided by exemption
that is split by a public right-of-way (State or Federal highway, County road or railroad),
preventing joint use of the proposed tracts, and the division occurs along the public right-of-
way, such parcels thereby created may, in the discretion of the Board, not be considered to have
been created by exemption with regard to the four (4) lot, parcel, interest or dwelling unit
limitation otherwise applicable. For the purposes of definition, all tracts of land thirty five (35)
acres or greater in size, created after January 1, 1973, will count as parcels of land created by
exemption since January 1, 1973."
Staff Finding
[As a matter of background, the subject property is not eligible to subdivide the property using
the traditional exemption process because a portion of the parent lot, as it existed in 1973, has
already been the subject of an exemption that extinguished all 4 lots.]
However, the eligibility language within the exemption section of the subdivision regulations
contemplates the ability for a property to also be split even though all other exemption lots have
been extinguished. This language is presented here:
Any parcel to be divided by exemption that is split by a public right-of-way (State or
Federal highway, County road or railroad), preventingjoint use of the proposed tracts, and
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�,\ As noted above, the Applicant provided a copy of court papers from the US District Court for
` the District of Colorado which describes the Canal to be located within a legally defined right-
of-way and easement but the easement is not described as a public right-of-way for the use of
the general public. Therefore, based on the for • oing, Staff cannot assert with clarity that the Silt
Pum " • • is ri ' t-of-wa " for s u roses of Section 8.00 of the subdivision
regulations.
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the division occurs along the public right-of-way, such parcels thereby created may, in the
discretion of the Board not be considered to have been created by exemption with regard to
the four (4) lot, parcel, interest or dwelling unit limitation otherwise applicable.
Essentially, the language above points out that a property may, at the discretion of the Board, be
split if both of the following tests can be met:
1) The property is split by a public right-of-way; and
2) This right-of-way prevents joint use of the tracts.
Public Right-of-way Issue
The Applicant proposes that the Silt Pump Canal (a large ditch located within an 80 -foot wide
easement) is a public right-of-way that traverses the lower portion of the subject property. As
such, this Canal effectively splits the property into two lots as shown on the plat.
The Applicant provided some history of the property which indicated that the former owners
known as the Hills (prior to the Wilks) filed suit against the federal government (U. S. Bureau
of Reclamation) on the theory that the installation of the Silt Pump Canal across their property
was a "taking" without just compensation. They won the suit and the US Government was
required to pay the owners (the Hills) for the utilization of the property in connection with the
Silt Pump Canal ROW and for damages due to the actual construction. The Canal is located
within an 80 foot easement described in an appendix to the Federal Court Case Complaint (Tab
5). The Applicant has not provided a copy of the easement recorded in the office of the Clerk
and Recorder.
The main question here is whether or not the Canal is a "public right-of-way" as defined in the
subdivision regulations. The subdivision regulations (Section 8.52) specifically contemplate
public right-of-ways as public transportation corridors which are a state or Federal highway, a
County road, or a railroad. Section 8.52 does not include canals or irrigation ditches. Further,
while the Silt Pump Canal is located in an easement and described as a right-of-way, it does not
appear to be for the use of the general public.
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Prevents Joint Use
The Applicant states that the Canal prevents joint use of the property. However, the original
dwelling on the property (constructed in the early 1900s) has continued to serve as the main
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house on the property even after the Canal was constructed because of a bridge that was
installed over the Canal that provides the driveway access to that house. Since the construction
of the Canal in 1968, the Applicant has enjoyed unobstructed access across the Canal for 36
years.
Further, the present owners recently obtained a Special Use Permit to convert the original house
into an accessory dwelling unit (ADU) so that the owners could construct a larger dwelling unit
on the portion of land that lies south of the Canal. This dwelling unit has been constructed and
gains access from CR 233 on a separate driveway than the original house. By the very nature of
the definition of an ADU, it is accessory to another primary use which ties them together.
[Regarding the accessory dwelling unit on the property, a split would, by default, render that
dwelling a primary dwelling unit. Should the Board approve this Exemption request, the
resolution of approval would need to rescind or vacate the Special Use Permit and deem the unit
to be a primary dwelling unit on Parcel A.]
Regarding utilities / shared services, the application states that "...each home has been operated
independently from the other with no sharing of services." Actually, both dwelling units obtain
their potable water supply from the well which is located to the north of the Canal. The
waterline begins at the wellhead and crosses the Canal to provide water service to the newly
constructed house. Further, the tract and new unit south of the canal obtains irrigation water
from a different ditch located north of the Canal where the water is piped across the Canal. As a
result, there appears to be shared irrigation and potable water service between the tracts.
,rrP\ Lastly, the portion of land where the Canal traverses the property is one fenced area presently
used for grazing of horses / lamas. The Canal is not fenced and the animals presently freely
,%fi` v1/4A cross back and forth across the Canal as well as drink directly from the Canal. In this way, the
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�a Canal has not prevented grazing of the entire fenced area as one lot.
Therefore, based on the forgoing, Staff cannot find that the Canal prevents joint use of the
property.
B. Zoning
The proposal meets the criteria of a two (2) acre minimum lot size as required by the A/R/RD
zone district. A split would not render any nonconformities regarding setbacks and existing
structures. Regarding the accessory dwelling unit on the portion of land south of the Canal, a
• •split would, by default, render that dwelling a primary dwelling unit. Should the Board approve
the Exemption request, the resolution of approval would need to rescind or vacate the Special
Use Permit and deem the unit to be a primary dwelling unit on Parcel A.
C. Legal Access
Legal access is presently provided from County Road 233 to both lots separately. Access to
proposed Parcel A crosses the Silt Pump Canal easement over a bridge and the access to
proposed Parcel B is a separately existing driveway off of CR 233. The County Road and
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Bridge Department reviewed the proposal and indicated that the two existing driveways were
satisfactory and no further improvements were necessary. The application included the
driveway permit provided for the new dwelling unit on proposed Parcel B directly off of CR
233.
D. Water
Domestic water for both of the proposed parcels is presently provided by an exempt well
(permit #234731) by the Division of Water Resources. This well permit states the well may
provide water up to two (3) single-family dwellings, fire protection, watering of domestic
animals, and"the irrigation of not more than one acre of lawn / gardens.
,,r Prior to the signing of the plat, all physical water supplies shall demonstrate the following:
a. That a four (4) hour pump test be performed on the well to be used;
b. A well completion report demonstrating the depth of the well, the characteristics of
the aquifer and the static water level;
c. The results of the four (4) hour pump test indicating the pumping rate in gallons per
minute and information showing drawdown and recharge;
d. A written opinion of the person conducting the well test that this well should be
adequate to supply water to the number of proposed lots;
e. An assumption of an average or no less than 3.5 people per dwelling unit, using 100
gallons of water per person, per day;
f. The water quality be tested by an approved testing laboratory and meet State
guidelines concerning bacteria, nitrates and suspended solids;
ti g. A water sharing agreement will be filed with the exemption plat that defines the
rights of the property owners to water from the well.
Because the Applicant will share this well and water between Parcel A and B, the application
includes a "Water Well Community Sharing and Maintenance Agreement" (tab 2) which
establishes the terms of ownership and maintenance for the well between Parcel A and B.
Further, the agreement states that the Wilks Subdivision Exemption Homeowners Association
shall be responsible for enforcing these terms. An easement around the well and the waterline to
Parcel B shall be legally defined and delineated on the plat as well as attached to this agreement.
E. Sewer
Each of the lots has an existing ISDS system serving the legally placed dwelling units. The
application does meet Sections 8:52 (D) and (E), which require a suitable type of sewage
disposal, in compliance with the applicable local and state environmental health regulations.
F. State and Local Health Standards
Colorado Department of Public Health & Environment ISDS standards require the County to
issue an ISDS permit for all such systems installed in the County. Each of the ISDS on the
property appears to be in compliance with the State and County ISDS regulations.
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G. Drainage
The parcel to be created by exemption, in its natural state, does not appear to be prone to
flooding or other drainage problems. Site specific investigation prior to issuance of any
additional building permits may be required.
H. Fire Protection
The application included a letter from the Rifle Fire Protection District which acknowledged
that the property is within the District boundaries and will be served and indicates the following
concerns:
1. Posting of Address: Addresses are to be posted where the driveway intersects the County
road. If a shared driveway arrangement is used, the address for each home should be
posted to clearly identify each address. Letters are to be a minimum of 4 inches in height,
1/2 inches in width, and contrast with background colors.
2. Access Roadways: Driveways should be constructed to accommodate the weights of
emergency apparatus in adverse weather conditions.
3. Defensible Space: Combustible materials should be thinned from around structures so as
to provide a defensible space in the event of a wildland fire.
4. If available, the District would like to work with the owners to develop a dry hydrant in
the area for fire protection use.
I. Easements
Any required easements (drainage, access, utilities, etc.) will be required to be shown on the
exemption plat. This includes easements that describe the location of the well, water line, and
irrigation water line shared between both parcels. The Applicant shall also record the documents
that established the Silt Pump Canal Easement so that its recording information can also be
noted on the plat.
J. School Impact Fees
The Applicant shall be required to pay a $200.00 school site acquisition fee for the newly
created lot, prior to the approval of the exemption plat.
K. Other Issues
Section 8:60 (I) requires the following statements be placed as plat notes on any subdivision
exemption plat and other plat notes are standard for rural areas:
1. "Control of noxious weeds is the responsibility of the property owner."
2. "One (1) dog will be allowed for each residential unit and the dog shall be required to be
confined within the owners property boundaries."
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3. "No open hearth solid -fuel fireplaces will be allowed anywhere within an exemption.
One (1) new solid -fuel burning stove as defied by C.R.S. 25-7-401, et. seq., and the
regulations promulgated thereunder, will be allowed in any dwelling unit. All dwelling
units will be allowed an unrestricted number of natural gas burning stoves and
appliances".
4. "All exterior lighting shall be the minimum amount necessary and that all exterior
lighting be directed inward and downward, towards the interior of the subdivision,
except that provisions may be made to allow for safety lighting that goes beyond the
property boundaries".
5. "Colorado is a "Right -to -Farm" State pursuant to C.R.S. 35-3-101, et seq. Landowners,
residents and visitors must be prepared to accept the activities, sights, sounds and smells
of Garfield County's agricultural operations as a normal and necessary aspect of living
in a County with a strong rural character and a healthy ranching sector. Those with an
urban sensitivity may perceive such activities, sights, sounds and smells only as
inconvenience, eyesore, noise and odor. However, State law and County policy provide
that ranching, farming or other agricultural activities and operations within Garfield
County shall not be considered to be nuisances so long as operated in conformance with
the law and in a non -negligent manner. Therefore, all must be prepared to encounter
noises, odor, lights, mud, dust, smoke chemicals, machinery on public roads, livestock
on public roads, storage and disposal of manure, and the application by spraying or
otherwise of chemical fertilizers, soil amendments, herbicides, and pesticides, any one
or more of which may naturally occur as a part of a legal and non -negligent agricultural
operations.
6. All owners of land, whether ranch or residence, have obligations under State law and
County regulations with regard to the maintenance of fences and irrigation ditches,
controlling weeds, keeping livestock and pets under control, using property in
accordance with zoning, and other aspects of using and maintaining property. Residents
and landowners are encouraged to learn about these rights and responsibilities and act as
good neighbors and citizens of the County. A good introductory source for such
information is "A Guide to Rural Living & Small Scale Agriculture" put out by the
Colorado State University Extension Office in Garfield County."
Ah 1,1411,
V. STAFF RECOMMENDATION
Staff recommends the Board deny e application as proposed due to the inability to make a finding
that determines the Silt Pump Canal 1) qualifies as a public right-of-way and 2) preventsioint use of
the tracts that comprise the Applicant's property. Therefore, Staff finds that the application does not
comply with Section 8:52 of the Garfield County Subdivision Regulations of 1984, as amended,
which is stated here:
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"No more than a total of four (4) lots, parcels, interests or dwelling units will be created from
any parcel, as that parcel was described in the records of the Garfield County Clerk and
Recorder's Office on January 1, 1973. In order to qualifyfor exemption, the parcel as it existed
on January 1, 1973, must have been larger than thirty five (35) acres in size at that time and not
a part of a recorded subdivision; however, any parcel to be divided by exemption that is split by
a public right-of-way (State or Federal highway, County road or railroad), preventing joint use
of the proposed tracts, and the division occurs along the public right-of-way, such parcels
thereby created may, in the discretion of the Board, not be considered to have been created by
exemption with regard to the four (4) lot, parcel, interest or dwelling unit limitation otherwise
applicable. For the purposes of definition, all tracts of land thirty five (35) acres or greater in
size, created after January 1, 1973, will count as parcels of land created by exemption since
January 1, 1973."
VI. STAFF RECOMMENDED FINDINGS
1. That proper posting and public notice was provided as required for the meeting before
the Board of County Commissioners.
2. That the meeting 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 exemption has been determined
to not be in the best interest of the health, safety, morals, convenience, order, prosperity
and welfare of the citizens of Garfield County.
4. That the application has not met the requirements of Section 8:52 (Exemption from the
Definition of Subdivision) of the Garfield County Subdivision Resolution of 1984, as
amended, finding that the parcel is not split by a public right-of-way and that the Silt
Pump Canal does not prevent joint use of the tracts that comprise the Applicant's
property.
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Fred Jarman
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From: Wendy Mead
Sent: Thursday, September 23, 2004 7:45 AM
To: Fred Jarman
Cc: Kraig Kuberry
Subject: Wilks Subdivision Exemption
EXHIBIT
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Good Morning Fred,
Kraig asked me to give you his comments on the Wilks subdivision exemption.
Kraig says if they are just dividing these parcels as shown on the maps, the existing driveways are okay.
If you have any further questions, please direct them to Kraig directly.
Thank you,
Wendy
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Fred Jarman
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From: Matt Sturgeon [msturgeon@rifleco.org]
Sent: Monday, September 20, 2004 2:14 PM
To: Fred Jarman
Subject: Wilks Subdivision Exemption
The city of Rifle has no comments regarding the Wilks Subdivision Exemption.
Thanks,
Matt
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EXHIBIT
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MEMORANDUM
To: Fred Jarman
From: Steve Anthony
Re: Comments on the Wilks Exemption
Date: October 14, 2004
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EXHIBIT
Thanks for the opportunity to comment on the Wilks Exemption. My comments are as follows:
Noxious Weeds
A. Inventory and mapping -Staff requests that the applicant map and inventory the property
for Garfield County Listed Noxious Weeds. There may be Russian olive and jointed
goatgrass on the property.
B. Weed Management -The applicant shall provide a weed management plan for the
inventoried noxious weeds. The County is particularly concerned about noxious weeds
found on irrigation ditch banks.
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GARFIELD COUNTY NOXIOUS WEED LIST
Common name Scientific name
Leafy spurge
Russian knapweed
Yellow starthistle
Plumeless thistle
Houndstongue
Common burdock
Scotch thistle
Canada thistle
Spotted knapweed
Diffuse knapweed
Dalmation toadflax
Yellow toadflax
Hoary cress
Saltcedar
Saltcedar
Oxeye Daisy
., Jointed Goatgrass
Chicory
Musk thistle
Purple loosestrife
Russian olive
Euphorbia esula
Acroptilon repens
Centaurea solstitalis
Carduus acanthoides
Cynoglossum officinale
Arctium minus
Onopordum acanthium
Cirsium arvense
Centaurea maculosa
Centaurea diffusa
Linaria dalmatica
Linaria vulgaris
Cardaria draba
Tamarix parviflora
Tamarix ramosissima
Chrysanthemum leucantheum
Aegilops cylindrica
Cichorium intybus
Carduus nutans
Lythrum salicaria
Elaeagnus angustifolia
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STUVER, LEMOINE & BURWELL, P.C.
ATTORNEYS AT LAW
120 WEST THIRD STREET
P. 0. BOX 907
RIFLE, COLORADO 81650
THOMAS W. STUVER
DANIEL D. LEMOINE
BARBARA C. BURWELL
October 18, 2004
Board of County Commissioners,
Garfield County
108 8th Street, Suite 201
Glenwood Springs, CO 81601
RE: Wilks Exemption Application
Dear Commissioners:
TELEPHONE 970 - 625-1887
FAX 970 - 625-4448
The Wilks are seeking to exempt the creation of a 10.6 acre lot from the remainder 70.86 acre
property. The Wilks seek the exemption under Regulation 8:52 for a lot which is split by a public
right-of-way preventing joint use. In the Staff Report, the Garfield Building and Planning
Department raises the issue of whether the Silt Pump Canal right-of-way which runs through the
Wilks' property is such a public right-of-way. We believe, however, that a reasonable construction
of the regulation would allow the exemption to qualify.
Regulation 8:52 states, in relevant part, "[A]ny parcel to be divided by exemption that is split by a
public right-of-way (State or Federal highway, County road or railroad), preventing joint use of the
proposed tracts, and the division occurs along the public right-of-way, such parcels thereby created
may, in the discretion of the Board, not be considered to have been created by exemption with regard
to the four(4) lot, parcel, interest or dwelling unit limitation otherwise applicable."
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' The language "public right-of-way (State or Federal highway, County road or railroad)" is
ambiguous in that the purpose of the parenthetical is unclear. If it is intended to limit the
\� interpretation to just those uses, why is a parenthetical used? Instead, the parenthetical should be
interpreted as illustrative of types of public rights-of-way, but not an exhaustive list of all possible
ksik rights-of-way which divide land uses. The Garfield County Building and Planning Department is
(.\ interpreting the parenthetical to limit public rights-of-way to only those that provide a public
transportation corridor for the use of the general public. (Report at 3.) Under the Department's
rb,\ interpretation, however, a railroad right -of way would not qualify as it is not for the use of the
general public; only those paying a fare are allowed to use the railroad right-of-way.
Another interpretation of the ambiguous language in Regulation 8:52 would be those public rights-
of-way that provide a continuous, physical presence on the surface of the property for the
transportation of individuals or commodities. This interpretation would include a railroad right-of-
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way as was specifically identified in the parenthetical. Further, it also would include the Silt Pump
Canal right-of-way as it is a continuous physical structure providing for the transportation of a
valuable commodity, water.
The Silt Pump Canal right-of-way also is a public right-of-way in that it is a part of the Colorado
River Storage Project, 43 U.S.C. § 620, et seq., authorized by the United States Congress under thej
Reclamation and Irrigation Act of June 17, 1902, 43 U.S.C. § 371, et seq. The Silt Pump Canal
right-of-way was authorized, constructed, and funded by the federal government as part of a
comprehensive scheme for the development of water to reclaim arid and semi -arid lands in 17
western states. Thus, although the Silt Pump Canal right -of way is not for the use of the general
public, by its very nature, it is for the benefit of the general public. The Silt Pump Canal right-of-
way is a public right-of-way under a reasonable construction of Regulation 8:52.
Additionally, the language "preventing joint use of the tracts" also is ambiguous. The Garfield
County Building and Planning Department is apparently strictly construing this language so that any
level of contact between, over, under or around the public right-of-way will show joint use and
thereby defeat the exemption. (Report at 4.) This interpretation leads to an absurd result in that
virtually no property split by a public right-of-way could ever qualify. For example, a rancher who
runs cattle or sheep across a county road from one pasture to another would not qualify. A farmer
who has culverts under Highway 6 & 24 for water runoff would not qualify. A rancher with
unfenced pastures in open range would not qualify.
Another reasonable interpretation of "preventing joint use of the tracts" would be to define joint use
as those circumstances in which the impact of the public right-of-way was incidental or de minimus
on the use of the property. For example, this definition would exclude those situations in which a
county road was essentially a dead-end road with little or no traffic, in which a canal was physically
small enough to step across without effort, or in which a physical structure was never built within
the right-of-way. Under this interpretation, the Silt Pump Canal which is approximately 20 feet
wide, at least 10 feet deep, and has water flows during the irrigation season and some of the winter,
does physically prevent joint use of the tracts. Further, any connection between the tracts through
the Silt Pump Canal is at the pleasure of the Silt Water Conservancy District, not the landowners.
Based upon the circumstances of the Wilks exemption application, which complies in every other
respect with the Garfield County regulations, the ambiguous nature of regulation 8:52 in
circumstances such as this, and the absurd precedent which will be made if the regulation is strictly
interpreted, we urge you to construe the language of Regulation 8:52 to allow this exemption.
Thank you for your attention to this matter.
Sincerely,
STUVER, LEMOINE & BURWELL, P.C.
Barbara C. Burwell
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