April 29, 2011

Horse limitation raises questions
Woodside HOA requests clarification of 2008 amendment to land-use regulation

Laurie Allen
Correspondent
 

HOA MEETING
Bob Banks (in the yellow shirt in the center), president of one of the three homeowners associations at the Woodside Park subdivision near Pine Junction, is shown in this April 9 photo at an HOA meeting held at Shepherd of the Rockies Lutheran Church in Bailey. Among other issues, Banks and the meeting attendees discussed the 2008 changes to Park County land-use regulations regarding the number of horses allowed per lot. (Photo by Laurie Allen/The Flume)

A land-use regulation amendment in 2008 that lowered the number of allowed horses to two from four on Park County lots of less than 10 acres has raised a stir in the Woodside Park subdivision near Pine Junction.

Questions about the change in the land-use regulation, or LUR, came to the fore at an April 9 meeting of the homeowners association for units two, three and four of Woodside, which has miles of horse trails and is partly in Park County and partly in Jefferson County.

"This is a big deal that affects a lot of people," said Bob Banks, president of the HOA, at the April 9 meeting. "We have people that have four horses."

The HOA members expressed concern about issues such as property values declining due to the smaller number of horses allowed per lot.

The change in the LUR on horses has raised questions concerning the reasons for the change in the first place, whether adequate notice on the proposed change was provided for practical purposes, and how the LUR will be enforced for people who already had more than two horses on their property in terms of their rights to a continuing legal non-conforming use, also known informally as "grandfather" rights.

The 2008 LUR amendment on horses, signed in November 2008, amended LURs passed in 2005.

The new LUR, which can be found on the Park County website at www.parkco.us, Section 5-701 of Animal Regulations, states the following for Residential Zone Districts:

1. Horses and 4-H project animals are the only type of Large Livestock permitted in the Residential zone district. The maximum number of horses allowed on a lot in the Residential zone district is two. The lot must have one acre of open space for each horse. Any lot smaller than ten acres created after August 23, 2003, may not contain horses.

Last fall, roughly two years after the amendment had been signed, Banks became aware of the change, which doesn't apply to unit three in Woodside, since that is in Jefferson County, but does apply to units two and four, since they are in Park County.

There are roughly 180 homes in units two and four and roughly 45 in unit 3. Woodside also has unit one, which has its own HOA, and units five and six, which have their own HOA.

Banks discovered the change in the animal LURs when Woodside's Architectural Control Committee was doing research regarding the maximum number of animals allowed by Park County land-use regulations because one particular lot had as many as 10 llamas on it.

The issue of the LUR change was briefly discussed at a Woodside HOA meeting in the fall of 2010 but it was decided to table the issue until the HOA's spring meeting, which was scheduled for April 9.

In the meantime, Banks had contacted The Flume to see if notice had been properly given for the planning and county commissioner meetings held in 2008 concerning the change. Banks also expressed concern about the reasons behind the change in the first place.

Reasons for the change

The Flume sent a letter of inquiry to Park County Developmental Services Coordinator Tom Eisenman requesting more information about the possible reasons for the LUR change. He replied:

"Since 2003 there has been lengthy dialogue with Planning Commission & BOCC related to horses on residential lots. I am not aware of any documentation related to this.

"In my tenure, the county has had a number of complaints related to horses on small acreages. Most of the complaints were related to soil erosion & run off onto adjacent lots, poor manure clean up on the lot & close proximity to adjacent wells," he said in the April 11 email.

"We only keep written complaints for one year if there was no litigation. Since 2005 most of the complaints we get are trash & abandoned vehicle issues. We have no written documentation that you are speaking of," concluded Eisenman's email.

This email was forwarded to Banks, who - along with several members of the Woodside community who reside in Park County and are horse owners - have voiced concern over the 2008 LUR amendment.

At the April 9 Woodside HOA meeting, after more discussion, the HOA agreed that there was not enough information available about when and why the LUR change was made to be able to discuss things further.

Banks said that he would look into the issue further and make every effort to obtain more information about how and why the change came about. After that information is gathered, he said, the group could then move ahead and decide if the issue is something that should be pursued further.

In a follow-up interview on April 26, Banks said that on April 11 he sent one letter to Eisenman, one letter to County Attorney Lee Phillips, and one letter to the three commissioners. As of April 26, he said, he had not received a response from any of them.

Once he gets a response, he said, he will take the response to the five member architectural control committee, of which he is a member, and the seven-member HOA board. Then the issue might be raised at a special meeting of the HOA or at the HOA picnic meeting on Aug. 6, he said.

Grandfathering

In February, Banks did get some information about the "grandfathering" issue that is associated with the LUR change. What happens with the horse owners who already own three or four horses?

"'Legal non-conforming' would be the correct terminology, as opposed to grandfathering," reported Banks in a February email to The Flume.

"What has happened is that all of Park County Woodside Unit 2 and 4 lot owners, who had more than 2 (two) horses at the time the LUR change was adopted, are now considered 'legal non-conforming.' This means that applicable horse owners can keep the number of horses they had (obviously no more than 4 (four) as per our covenants) at the time the LUR change was made," Banks said in the email.

"However, as this number reduces due to a sale, death or by whatever means, that horse (or horses) cannot be replaced. Ultimately, the goal would be for all lot 2 and 4 owners, who have horses, to decrease their horse number to 2 (two) and become 'legal conforming,'" said Banks in the email. Banks added that he gathered this information from speaking with Eisenman.

However, according to Phillips, the county's attorney, the issue of legal non-conforming uses with regard to LURs is not all that cut-and-dried. In a Jan. 21, 2011, e-mail to Flume reporter Mike Potter, Phillips said:

"I'd have to think about whether a particular number of horses (as opposed to the keeping of horses in general) is a non-conforming use. We'd probably like to make that call in the context of real rather than hypothetical facts. The courts don't give "advisory opinions" and that's probably a pretty good policy for lawyers too."

However, such a stance may raise problems for people who own homes and are trying to sell them in Park County. If they have four horses and sell the property to a buyer, does the buyer have the right to have four horses?

Banks said that his understanding is that the new owner "would reset the clock for existing LURs," meaning that the new owner would only be able to have two horses. However, he noted, "That is what I need clarification on."

If the non-conforming use passes with the land and the new owner can have four horses, is there a time limit in which the new owner must act and have four horses on the property to preserve the use?

Banks said he has received no guidance in terms of time limits like that.

What if a current horse owner boards one of his horses over the winter somewhere else? Does the nonconforming use right drop to three horses instead of four?

"That's just it. We don't know," said Banks.

With respect to grandfathering (legal non-conforming uses) in proposed rezoning in downtown Bailey, in a separate Jan. 21 email, Phillips made it clear that a legal non-conforming use would transfer with a property when it was sold, so that the grandfather rights would not be terminated by a sale of the property.

But that opinion was with regard to rezoning and not with regard to the number of horses allowable under an LUR.

Possible action

Is it possible the Woodside members would ask the commissioners to revise the LUR?

That's unclear.

In an April 14 follow-up phone call to The Flume, Banks explained that he had written to Park County Planning and Zoning requesting any and all information as to the who, what, when, where and why the LUR change was made.

Notice

There have also been questions raised by Banks regarding whether sufficient notice on the topic was given in 2008 regarding the upcoming meetings by the planning commission and the board of county commissioners.

In a notice for the Board of County Commissioners meeting on July 17, 2008, and published in The Flume on June 20, 2008, the notice refers to discussion of "Animal Regulations Section 5-701 and Section 5-701B," but does not specifically mention horses. (See BOCCmeetingnotice as an attachment with this story at theflume.com.)

Even more obscure was the notice for the Planning Commission meeting on June 10, 2008, which was published in The Flume on May 16, 2008. In that notice it says that there will be "Discussion of Proposed Amendments to the 2005 Land Use Regulations," and it says more information can be obtained at the Park County Planning Department. (See that notice at theflume.com.)

In other words, in that notice, there is no mention even of animals and only mention of a discussion of land-use regulations - a very broad topic.

In an email, Phillips told The Flume that the notices were not only according to the letter of the law, but the spirit of the law.

At least with respect to the letter of the law, one other attorney agrees. Denver attorney Christopher Beall, who acts as a legal adviser for the Colorado Press Association, cited a Colorado Supreme Court decision, Town of Marble versus Darien, which gives local entities great latitude in the sufficiency of their notices.

Beall said in a March 5 email that "under both the decision in the Town of Marble case as well as the underlying language of the COML [Colorado Open Meetings Law], a notice that a county planning commission is going to be considering 'proposed amended to the 2005 land use regulations' strikes me as being well within the 'flexible' requirements for notice under the COML. The bottom line here is that public bodies are not required to be tremendously specific in their notices for the topics to be discussed at a public meeting."

Banks and other Woodside HOA members said at the April 9 meeting that they are eager to get more information so they can decide as a community what to do next.

In the meantime, Woodside's website, www.mywoodside.com, states their Covenant, Conditions and Restrictions, or CC&Rs, are currently being revised to comply with the Park County LURs.

Note: Mike Potter and Tom Locke (who lives in the Jefferson County portion of Woodside) contributed to this article.

MyWoodside Home Page