May 29, 2009
Still no decision on rezoning Elk Falls Ranch
The public hearing held on May 21 by Park County's Board of County Commissioners to rezone the Elk Falls Guest Ranch opened and closed with procedural controversy, and no decision was made on the requested rezoning, which was continued until June 4.
The 206-acre ranch is located north of Pine Junction, with access off U.S. 285 at Shaffers Crossing.
At the hearing three audience members asked Commissioner Dick Hodges to recuse himself from the hearing. The request was made because Hodges had testified before the Park County Planning Commission in support of the rezoning in the spring of 2008.
That application from Vera and Drayton Dunwody, was withdrawn before it was heard by the commissioners. Hodges was elected in November 2008 and took office in January 2009. The application was re-filed with the county in February.
Hodges said 600 feet of his residential property (in Woodside Park) borders Elk Falls Ranch. He said he had not discussed the current rezoning application with the applicants, the Dunwodys.
Hodges also said the fact that he had testified in favor of the rezoning last year would not affect his decision now. "As a commissioner, I have a different role than I did last year as a private citizen," he said.
Still, opposition to Hodges participating in the decision-making was voiced.
"It has an appearance of impropriety. It is a serious conflict for you to decide on the application. I request that the integrity of these proceedings be preserved," Elk Falls subdivision resident Fred Wells said.
County Attorney Lee Phillips concluded Hodges could hear the case because Hodges had stated he had no ex parte (one-sided, with the other party absent) discussions about this application and he had not pre-judged the hearing.
Commissioner Mark Dowaliby then stated that he had heard the case as a planning commissioner in 2008 and that he could be impartial at the hearing.
Phillips said both commissioners could not be recused because the board needed two members to conduct a hearing. Phillips also said the "rule of necessity" states that if no one else can hear a case, then conflicts have to be ignored.
Commissioner John Tighe said that if Hodges recused himself, that would leave two commissioners hearing it, and the application would be denied if one voted against it. He said the Dunwodys could object to having it heard by only two commissioners.
The Dunwodys were not asked if they would consent or object to the application being heard by two commissioners.
The hearing proceeded with all three commissioners seated.
After public comment and the applicants' rebuttal, Phillips stated that lots of testimony and documents had been provided during the hearing.
"Any judge would take time to review and deliberate. I recommend that you schedule the deliberations and decision for another day," said Phillips.
Tighe asked if it had to be continued to a day certain, and Phillips said it could be continued to a tentative date.
Continuation was initially set for June 11 because that was the first Thursday all three commissioners initially thought they would be present to deliberate on the application.
Vera Dunwody said they would be unavailable on June 11.
"That's not a problem. There will be no more public comment," said Phillips.
He said the Dunwodys would not be allowed to speak at the continuation, just as a court judge wouldn't take comments during a judge's deliberations. He said the Dunwodys did not need to be at the deliberations.
After the meeting, Vera Dunwody spoke to Phillips. Since conditions are being proposed for the rezoning, the Dunwodys wanted to be present to discuss conditions or to withdraw the application if the conditions were too restrictive.
"That's just the way it is," Phillips said.
He also said that if the Dunwodys didn't like the outcome, they could take the case to court.
(In past application hearings where The Flume was present, part of the procedure included the commissioners asking the applicant if he or she voluntarily agreed to proposed conditions of approval. At times, conditions were modified if the applicant didn't agree.)
About 15 minutes after the meeting, Hodges told The Flume that the continuation date had been changed to June 4 from June 11. Hodges said that Tighe realized he was not available on June 11, instead of June 4, as he had said in the hearing.
On May 26, the commissioners' office confirmed the date of the continuation is June 4 at 10 a.m.
Vera Dunwody said that the ranch had been inexistence as a guest ranch since 1878 and presented an article from The Flume written in 1898 that said the ranch was "quite the tourist resort." At that time, it consisted of more than 2,000 acres.
She said the owner developed Blocks 1 and 2 of the Elk Falls subdivision in the mid 1900s to bring more guests to the ranch.
In 1966, it was sold to the Elk Falls Development Co., which developed Block 3 of the subdivision.
Then 1,000 acres of the ranch was sold to Colorado State Parks, and that acreage is part of the new Staunton State Park, which is scheduled to open in 2012.
Elk Falls Development continued using the remaining 206 acres as a membership- only guest ranch and recreation area. The company sold it to the Dunwodys on Jan. 21, 2008, for $2.1 million.
In January 2009, the ranch was listed as a Park County Historic Landmark by the commissioners.
Vera Dunwody testified that the property has a lodge/banquet hall and four cabins that can accommodate up to 90 overnight guests and approximately 340 indoor guests. Sixty-five parking spaces are available around those structures. All five buildings are on the small peninsula of land on the northeast side of the property.
The area is surrounded by residential homes.
Elk Creek runs west to east through the property below County Road 1184, known as Elk Creek Road. The road provides access to Elk Falls subdivision properties north of the guest ranch.
On the eastern half of the ranch south of the road are a barn and corral, pond, two pavilions and the concrete slab of a third pavilion that no longer exists, five picnic areas and a ball field. Five restrooms are located in the outdoor recreation areas. Sixty-seven parking places are around the barn and pond, with another 41 near the pavilions, picnic areas, and ball field.
The Dunwodys are in the process of restoring the buildings and bringing them up to current code. They are requesting the rezoning from residential to agricultural in order to bring the property into compliance with the current county land-use regulations.
The property was zoned residential with the first zoning map in 1974.
The ranch will be used for four months out of the year because the buildings are not winterized, according to the Dunwodys.
The ranch has been operating as a non-conforming use in residential zoned property because it was operating before Park County adopted land-use regulations and zoning districts, according to a letter from Development Services Director Tom Eisenman.
The letter states the ranch can continue operations as long as the occupancy and uses are not increased.
The Park County Planning Commission recommended approval with 12 conditions, including "no substantial increase in use or occupancy of the existing structures" and "no new structures are allowed without approval by the BOCC. Pavilion #3 may be relocated."
Therein lies the zoning application's controversial nature for some residents and the board of directors of Elk Falls Property Owners Association.
Testimony by 13 residents at the May hearing revolved around the occasional outdoor use of the property for the past 30 years, impacts to homeowners if the Dunwodys are allowed to operate at full capacity, and incompatibility of the proposed rezoning with the surrounding residential area.
Elk Falls subdivision resident Wells said that the Elk Falls Guest Ranch really ceased to exist after the lodge burned in the 1950s.
Using a PowerPoint presentation, Elk Falls subdivision resident Christine Groves showed pictures of the existing buildings. She said the barn had not been used for agriculture since the 1950s and occupation of three of the four cabins (used as residences) had been limited to four people. The fourth cabin has been vacant. The lodge has not provided for overnight guests or dining. The kitchen license expired in 1970. The road is 18 feet wide.
Most were opposed to the scale and scope of the Dunwodys' proposal, which they said would increase traffic and noise in the quiet subdivision. Some were concerned about uncontrolled alcohol use because the Dunwodys testified that they would not apply for a liquor license but would allow guests to bring their own alcohol to the property.
Some asked the commissioners to limit the uses of the property, the number of events and guests at each event, outdoor lighting, the rebuilding of pavilion 3, noise levels, and hours of operation, with outdoor use stopping at 6 p.m. No outdoor amplification of music or event speakers was requested.
Requests were made that the Dunwodys build a private road through the property for access to events instead of using Elk Creek Road. The Dunwodys said that was a possibility.
Many were concerned about large commercial use of the property for lodging and dining after Staunton Park opens to the public.
One person testified that residential use of the property would create less impact to the subdivision.
Park County Planner John Deagan said the property could possibly be divided into 15 to 20 home sites due to the terrain and riparian areas.
Nine residents testified in favor of the rezoning, saying that the Dunwodys were increasing the value of their homes by preserving the property as open space that could be used by residents and by restoring the buildings. Most said they had personally used the property while owned by Elk Falls Development and plan to continue using it for recreation. Some said that noise had not been a problem on the property or the Dunwodys' adjacent property in Jefferson County, where activities also take place. Those testifying said that the Dunwodys were good neighbors.
Activities have included such things as fishing, ice skating, corporate and family retreats and picnics, weddings, horseback riding, wildlife watching, hiking, and social gatherings.
The Dunwodys said they currently monitor all noise from the property during activities, and they played a tape showing that noise at the road was less than noise they said was recorded from the road during parties at resident houses.
The commissioners asked several questions to ascertain possible impacts and possible mitigation.
The commissioners' deliberations and decision on approval, approval with possible conditions, or disapproval will be held on June 4 at 10 a.m. in the commissioners meeting room in Fairplay.
The commissioners approved a rezoning of a 200-acre parcel known as the King Coal mine site from agricultural and residential to conservation/recreation.
The county purchased the parcel from the Tarryall Creek Ranch, formerly known as the Cline Ranch, for the purpose of building a public shooting range. It is south of Como, with access off County Road 15.
The Colorado Division of Wildlife and South Park Shooting Association are partnering with the county in the project.
Bill Van Gundy of the shooting association said that DOW will design the range. It will be funded by DOW and the county's Conservation Trust Fund. The range will be open to the public for a fee.
Van Gundy said the range will be developed to look like the settlement area did during the 1800 mining operations.
Duke Marsh, an association member and certified military weapons instructor, said people from other areas are champing "at the bit to get up here."
A separate law enforcement range will attract officers from other jurisdictions as well. The Park County Sheriff's Office will use it for training and practice, according to Undersheriff Monty Gore.
"It could be a real economic boost to the South Park area as people come here to use the range," Gore said.
A county conditional use permit is also required before construction of a shooting range can begin.
The commissioners approved a contract with Hydrokinetics for $18,000 to investigate the feasibility of a water well or wells at the Burland Meadows Fields owned by the county. The Land and Water Trust Fund will fund the contract.
A 99-year lease agreement with Park County Search and Rescue was signed for $10 per year for property the county is leasing from North-West Fire Protection District. Search and Rescue plans to construct a building to provide better service to the western part of the county.
A contract was signed with the State Historical Fund to complete a structural assessment on the Trout Creek Ranch. Park County Historic Preservation Director Linda Balough did not respond before press time to a Flume request for more information, including location, pictures and the significance of the property.
Also approved were the Human Services client payroll for February and March, a Public Health nursing contract, and Women Infants and Children and traumatic brain injury contracts.
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