RESPONSE TO TOWN'S FAQ?
Citizens Response to the Town Community Development’s July 3, 2018 “Fact Sheet About the Estes Park Mountain Coaster” (FAQs)
WHY DOES IT MATTER TO ALL HOMEOWNERS? Calling a commercial recreation development “residential” under a Park and Recreation
classification opens the door to similar commercial outdoor facilities in every residential zone.
Comments on some critical statements and omissions in the Town’s posting on the project (many citizens’ questions were not addressed):
- What is being proposed--
The Town describes the Coaster as less than 2000 linear feet, and therefore is shorter than other similar Coasters in North America.
This is irrelevant, as it is still a “commercial” use, not allowed in a residential zone. The description
is merely an attempt to deflect criticism of the potential for noise, traffic, lighting, etc.
- Property’s & nearby properties’ zoning--
The Town admits that MOST of the property around the project is the same as the site of the proposed development (RE-1, generally, no more than 1 residence
per 10 acre lot). The additional description of other nearby parcels as commercial zoning is intended to minimize the impact of the project on the openness
and residential character of the area.
- Commercial use in RE-1 zone--
The Town claims that the project fits 2 different use classifications – as a “Recreational Facility” under park and recreation use allowed
in residential zones, and the obvious classification as an outdoor commercial recreational establishment.
- The definition of Recreational Facility that the Town has chosen DOES NOT fit the project. That definition refers to nonprofit and public
facilities, and is clearly intended to allow open, noncommercial uses such as playgrounds or public tennis courts. This project is for
profit and a private enterprise.
- The definition of Commercial Recreation or Entertainment Establishment, Outdoor” is the ONLY definition that applies. It describes
“amusement parks” and “where tickets are sold or fees collected”, both of which relate to the proposed project.
- The Town explains that it has determined, despite the clear commercial component, that the project is acceptable as a residential “park” use. The
Town attempts to claim that the intensity of use does not rise to a full “amusement park”, and it is no more than Sombrero Stables’ current recreational use for trail rides.
Riding horses across residential property is compatible with residential character. Building and operating a ticket selling, commercial enterprise is completely incompatible.
Even if trail rides were occurring before the land was zoned RE-1, and is a permissible “nonconforming use”, the Codes do not allow an owner to then expand or change that use.
In other words, even if the trail rides are grandfathered as a “commercial” use that occurred before it was zoned residential, the owner cannot add another commercial use.
The owner of the undeveloped parcel and the Sombrero Stables is the same, and any owner of a residential parcel is free to give permission to a
business to cross their property. This also does not, nor should not, change zoning.
Additionally, intensity of use is not a criterion that can be used to circumvent the clear prohibition of a private commercial business on residential property.
The application clearly describes an amusement park facility, whether it is one ride or several, and intensity of use is irrelevant. By the Town’s argument,
the facility is not yet an amusement park, but the owners here could add another low intensity facility, then another, until the entire parcel is
clearly a full- blown “amusement park”. Additionally, in meetings with Community Development, the Town representative admitted that once the permit
with under 20 parking spaces was approved (thereby avoiding Planning Commission review), the owner was free to add as many parking spaces as they wanted
without a new permit or application. Based on those statements, it is foreseeable that approving one prohibited amusement facility could easily result in stair step approvals.
- The Town falsely claims the use definitions are vague, that both apply (when only 1 does) and also states that prevailing law requires the Town to choose
the definition that allows the owner the “free use” of his/her property.
The Town has ignored a clear Town Code provision that overrides this “common law” concept. Section 1.8 of the adopted codes expressly states that
if 2 provisions of the Code are in conflict, “the more restrictive provision shall govern” (emphasis added). Even if both definitions applied, the
Town has no choice but to follow the more restrictive commercial outdoor recreation definition. If that is the more restrictive definition, it
applies. If that definition applies, it is undoubtedly prohibited in residential areas, by the Development Codes. The factsheet clearly states that
the application of this use classification would result in denial of the application. It is assumed that the Town’s ignoring of Section 1.8 of the
Code is intentional, simply to allow this project to go forward.
- Public hearing--
The Town claims that no public hearing is required, because it falls below 20 added parking spaces, for which the Staff can make the final decision.
The Town is ignoring the other provisions of the Code that DO require Planning Commission review, for example, any “park and recreational facility”.
This explicit additional provision requires a Planning Commission review, as do certain major alterations, changes to parking configurations, driveways,
etc. that would reach the threshold for public hearing and Planning Commission review. In other words, the Town has cherry-picked one section of the Code
that avoids Planning Commission review, and ignored several others that REQUIRE a public hearing and Planning Commission review”
Note, however, this should not need to go the Planning Commission for the simple reason that it is a prohibited commercial development in a residential
zone, and the application should be denied in its entirety.
The objections to the lack of transparency are valid to the extent that the Staff has gone to extremes to avoid applying any Code provisions that might
require a public hearing and Planning Commission review. Most importantly, the Town has failed to mention the single biggest issue of concern that will
affect the entire Estes Valley Development district – the opening of the door to commercial recreational facilities in each and every residential zone
as a permitted use by right.
While it is true that the property lies outside the Town limits, and any appeals ultimate go to the County Commissioners, the Town has responsibility
for Code implementation within the Estes Valley Development zones. The Town’s Governing Policies clearly state that “The Trustees - not the staff –
bear full and direct responsibility for the process and products of governance” and in several places address the duty the Trustees hold to the
citizens to avoid unacceptable actions and situation and their accountability. The Code applications as described in the Town’s Factsheet are
erroneous and unacceptable.