Board of Appeals Resolution 17-01RESOLUTION 17-01
TOWN OF AVON
BOARD OF APPEALS
WHEREAS, the Town of Avon Building Official issued Residential Building Permit #15012 in 2015,
then issued a Temporary Certificate of Occupancy on January 27, 2017 with a deadline of April 27,
2017, and issued a second extension of the Temporary Certificate of Occupancy on April 20, 2017
extending the deadline to July 27, 2017;
WHEREAS, the owner of 5705 Wildridge Road East submitted an appeal to the Avon Town Council,
acting as the Board of Appeals, on July 12, 2017 ("July 12, 2017 Appeal");
WHEREAS, the Avon Town Council, acting as the Board of Appeals in accordance with Section
15.06.010 of the Avon Municipal Code, held a hearing on August 8, 2017, and considered all evidence
submitted in the record, including but not limited to Town documents, correspondence between Town
and Owner and Owner's representatives, and public comments; and
WHEREAS, the Avon Town Council, acting as the Board of Appeals, considered the criteria in Section
15.06.020, Avon Municipal Code, in rendering its decision.
THEREFORE, BE IT RESOLVED BY THE TOWN OF AVON BOARD OF APPEALS that:
The July 12, 2017 Appeal is hereby DENIED based upon the appeal fails to be based on a claim that
the true intent of this Code or the rules legally adopted thereunder have been incorrectly interpreted, the
provision of this Code does not fully apply or an equally good or better form of construction is proposed.
The Board of Appeals finds that Title 15 of the Avon Municipal Code clearly states the timeframes
for Temporary Certificate of Occupancy and further finds that the correspondence from and with the
Avon Building Department officials did not mislead the Owner and that Avon Building Department
officials did not represent that additional extensions could be obtained, and therefore, no reasons exist to
grant an additional extension of the Temporary Certificate of Occupancy.
ADOPTED August 8, 2017 by the AVON TOWN COUNCIL, ACTING AS THE BOARD OF
APPE S
By: Attest•
Jennie Fancher, Mayor . Debbie Hoppe, Tow ler
acting as Chairperson of the acting as the Secretary of e
Board of Appeals Board of Appeals`
�o�aQo
MICHAEL DUNLEVIE PC
Attorney at Law
P.O. Box 5864
Eagle, Colorado 81631
July 12, 2017
Town Council — Board of Appeals
Town of Avon
P.O. Box 975
Avon, Colorado 80620
Re: Permit RBP #15012 — 5705 Wildridge Road East
Dear Council Members:
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The undersigned represents the Cathleen A. Conroy Family Trust ("Appellant") with regard to
the above referenced matter. This letter is to be received as my client's appeal of the "letter of
decision" of William Gray, Chief Building Official, Town of Avon (the "Letter").
In the Letter it is stated that "a violation will be issued if the project is not completed per
approved plans."
The Letter does not identify any current violation nor does the Letter make any determination
that any current use of the project is in violation of any code. At most the Letter says at some
future date a violation may occur if certain conditions occur at such future date. Despite that no
current violation is asserted, the Letter references Section 15.08.070 which states:
"Whenever any building or structure... regulated by this Code... is being used
contrary to the provisions of this Code, the Building Official may order such use
discontinued and the structure, or portion thereof, vacated by notice served on any
person causing such use to be continued."
Noting the specific language of the Code Section referenced in the Letter requires current use in
violation of the Code, the primary issue becomes is there any current use in violation of the
Code.
The answer to this primary question is no, there is no current use in violation of the Code.
Therefore the Letter and any determination or decision therein causing this Appeal is premature.
It is not appropriate for the Building Official to state a violation may occur in the future and the
party in question must appeal a decision of a future violation in advance of any violating
conduct.
Therefore at law the Board of Appeals should uphold the appeal in favor of Appellant by
determining the Letter as premature (no current existing violation).
850 Chambers Avenue, Suite 9, Eagle, Colorado 81631
Telephone: (970) 328-5450 — Telefax: (970) 328-5451
Also Licensed to Practice Law in California
Additional to the matter of the Letter's determination being premature, the Letter fails to note the
circumstances of the potential future violation have been created by the Town's building
department.
As can be seen from the attached chain of email messages starting July 23, 2016 when
Appellant's builder made the specific inquiry to the Town's building department about obtaining
a Temporary Certificate of Occupancy with the still to be completed driveway postponed. The
further messages detail the postponement was identified to allow subsidence to occur (settling)
and then install the driveway.
On September 25, 2016, Appellant wrote to Town Building Official Matt Pielsticker saying
Appellant's soils engineer provided the opinion recommending delay of the driveway
completion:
2018 timing vs. 2017 and he/ they also state that delaying paving is more
desirable than constructing a pavement section that will undergo excessive
settling.
On September 26, 2016, Town Building Official Matt Pielsticker replied to Appellant stating:
The Avon Municipal Code requires the following:
1) A material change application to go to pavers.
2) Inspections every 180 days to keep a permit active.
3) Completion of all exterior improvements (or bonding) prior to planning inspection
and TCO.
Just to follow-up, the driveway must be complete prior to CO. This permit can
get to TCO, with bonding, and inspections every 180 days.
The above was after the email communication from Building Official William Gray, dated
August 3, 2016 in which Mr. Gray stated:
Need to clarify this, because the driveway will not be finished, all the building
department can issue is a Temporary Certificate of Occupancy, if you are using a
bank this may not be enough to close, you should check on this. The TCO is good
for six months but can be extended for another six months if requested in writing.
The chain of email communications clearly shows the discussion of postponement of the
driveway and obtaining a Temporary Certificate of Occupancy ("TCO"). The Town clearly says
to Appellant a TCO can be obtained and with bonding, inspections every 180 days and
completion of the driveway in early 2018 that the project will then receive a Certificate of
Occupancy.
Further to the email communications above, on June 16, 2017 a meeting on site was held
between Town Building Officials William Gray & Matt Pielsticker and Appellant representatives
Cathy Conroy & Todd Nathan'. At this meeting Town Building Official Matt Pielsticker said "I
don't care about the driveway." Todd Nathan directly asked to confirm that this statement was
the Town of Avon position, given that Matt Pielsticker was there as the Town Building Official
and driving a Town building department vehicle. When directly questioned on this Matt
Pielsticker shrugged in confirmation of the statement and did not make any statement or
indication to the contrary. At this meeting Town Building Official Gray added that there was
one 90 day extension of the TCO and there would not be any further extensions. This was the
first time Appellants were given any indication contrary to the email communications from Gray
and Pielsticker, that Appellant would get TCO extensions on a 180 day schedule.
This new position was hidden from Appellant and lulled Appellant into obtaining the TCO under
the impression the August 3, 2016 and September 26, 2016 directives would apply and that with
bonding, 180 day inspections and completion of the driveway in 2018 Appellant would be
proceeding with the Town's approval. This is just what Town Building Official William Gray
stated on August 3, 2016.
The acts of the Town Building Official, first communicating a Town position knowing Appellant
would rely on it, then seeking to put Appellant into a position of a future violation (beyond the
date of July 27, 2017) has a name, it is called entrapment.
As a matter of law entrapment is defined as:
The commission of acts which would otherwise constitute an offense is not
criminal if the defendant engaged in the proscribed conduct because he was
induced to do so by a law enforcement official or other person acting under his
direction,... such as to create a substantial risk that the acts would be committed
by a person who, but for such inducement, would not have conceived of or
engaged in conduct of the sort induced. Colorado Revised Statutes § 18-1-709.
The multiple inquiries by Appellant on how to get a TCO and complete the driveway after the
soils settled in 2018 is abundantly clear.
Equally clear is the Town Building Official's communication that Appellant can proceed as
described. Appellant did as the Town Building Official specified. The driveway and
landscaping were bonded. The structure received a TCO. But the Town now refuses to allow
the TCO to continue after July 27, 2017 and seeks to put Appellant into violation at or after this
date.
There can be no question that Appellant sought, time and time again, direction from the Town on
how to proceed. Appellant proceeding on the plan laid out by the Town for Appellant can not
now be construed as a violation of the Code by Appellant.
Appellant's many efforts in confirming the work to be done and the schedule for that work are
clear. The Town's numerous responses showing Appellant merely had to request extensions
every 180 days until the well specified completion timing and the TCO would be extended is
1 This meeting is referenced in the Letter.
equally clear. The reliance by Appellant on these communications, then only to see the Town
change its position is a violation of both the substantive due process and procedural due process
rights of Appellant.
There is no contention that any aspect of the project now involves any issue of safety. The
conduct and communications of the Town representatives has clearly put Appellant into the
current position. As shown by the April 20, 2017 letter from the Town's Building Official the
driveway was not and is not expected to be completed by July 27th. All communications have
discussed letting the driveway area settle through the winter of 2017-2018 and putting in the
driveway in 2018. Despite this the April 20, 2017 letter now says the driveway does not have to
be completed by July 27th, but does have to be completed in 2017. This is yet another position
change from the Town.
In reliance on the many communications from the Town, Appellant did not aligned contractors
for the landscaping or driveway. Upon receipt of the Letter, and despite the surprise in its
content, Appellant has submitted a revised landscaping plan which complies with all
requirements of the Town for landscaping.
Appellant has further rushed to solicit bids from contractors for the further landscaping work,
selected a contractor and has begun further landscaping work, in alignment with the revised plan
as submitted, with an effort towards completion of the landscaping by July 27th.
Appellant therefore prays the Board of Appeals uphold this appeal and decree that no violation
will occur on or after July 27, 2017 by continued issuance of the TCO; that the TCO may be
extended or a new TCO issued; and that completion of the landscaping and driveway in early
2018 may be done without impact or charge upon the bond provided to the Town.
Sincerely,
MICHAEL DUNLEVIE PC
Alt,
Michael R. Dunlevie
dunlevie@vail.net
MRD/bh
enclosure: Exhibit 1 — Email message chain 07/23/16 to 009/26/16
Exhibit 2 — Town letter dated April 20, 2017
cc: client
2 If Appellant's current efforts on landscaping complete the landscaping on or about July 27th, and upon approval of
same, then no further continuance of landscaping will be needed.
From: Matt Pielsticker [mailto:mpielsticker@avon.org]
Sent: Monday, September 26, 2016 12:46 PM
To: Cathy Conroy <cathy@conroy.com>; 'Dave Dantas' <dave@dwdantas.com>; William Gray
<wgray@avon.org>
Cc:'Todd Nathan' <todd.nathan@yahoo.com>
Subject: RE: 5705 Wildridge Road East
Cathy
The Avon Municipal Code requires the following:
1) A material change application to go to pavers.
2) Inspections every 180 days to keep a permit active.
3) Completion of all exterior improvements (or bonding) prior to planning inspection and TCO.
Just to follow-up, the driveway must be complete prior to CO. This permit can get to TCO, with bonding,
and inspections every 180 days.
Matt
From: Cathy Conroy [
Sent: Sunday, September 25, 2016 5:18 PM
To: Matt Pielsticker; 'Dave Dantas'; William Gray
Cc: 'Todd Nathan'
Subject: RE: 5705 Wildridge Road East
Matt,
After reviewing your comments below, we had further discussions with the soils engineer. During this
discussion, we all agreed that the letter dated 9/8 did not clearly state their recommendation (vs
feasibility) to delay the completion of the driveway until 2018. The soils engineer offered to re -write
the letter and more strongly state his/ their recommendation and preference for delaying. Please see
attached.
As you can see, he/ they recommend 2018 timing vs. 2017 and he/ they also state that delaying paying
is more desirable than constructing a pavement section that will undergo excessive settling. Please
review the attached findings and recommendations. I would then ask that you revisit this decision
process.
Thank you for your time and consideration.
Cathy Conroy
5707 Wildridge Road E
From: Matt Pielsticker [ urd
Sent: Thursday, September 15, 2016 11:59 AM
To: Dave Dantas < _ _ >; William Gray <;�. 'ray@avon.orY>
Cc: Todd Nathan <todd.nathan(@yahoo.co,- >; Cathy Conroy (cathy@con roy.com) <cathv@conroy.com>
Subject: RE: 5705 Wildridge Road East
The Geotech letter does not provide more than feasibility support for delaying pavers until 2018. As
stated, settling of the base layer is still expected and the Town maintains that 2017 the driveway work
should be competed. If it is not completed, we can only issue a TCO and the driveway would need to be
bonded around until complete.
Note: The Town has yet to process a material change application as noted below in the complete chain
of e-mails.
Lastly, this email confirms that the snowmelt system can be installed without Energy Offset fees.
Matt
From: Dave Dantas [ ]
Sent: Tuesday, September 13, 2016 6:34 AM
To: William Gray; Matt Pielsticker
Cc: Todd Nathan; Cathy Conroy ( �corIrov.ci- )
Subject: FW: 5705 Wildridge Road East
Willy, Matt,
The attached Letter Is from Dave Young HP. It addresses concerns with the 2018 paving. Please let me
know if it will be ok to delay the paving until 2018.
Thank you,
Dave
Regards,
Dave Dantas
DW Dantas Construction LLC
PO Box 2322, 4791 Wildridge Road
Avon, Co 81620
daverDdwdantas.con-,
dwdantas.com
970 376 6111
8/3/2016 9:22 AM
Cathy,
Thank you for the quick response, let me address your points to confirm;
a. Correct, The Town of Avon does not want mud, gravel or dirt to be tracked on Wildridge Rd.
East.
b. Need to clarify this, because the driveway will not be finished, all the building department can
issue is a Temporary Certificate of Occupancy, if you are using a bank this may not be enough to
close, you should check on this. The TCO is good for six months but can be extended for another
six months if requested in writing.
c. Correct, The Town of Avon and the Fire District require that a firm base is installed for
emergency vehicles
d. Correct, The Town of Avon will need to have verification from your soils engineer that leaving
the sub base exposed to the elements will not do more harm than with a final covering on it.
e. Correct, The Town of Avon believes that the winter and spring of 2016 and 2017 should be
sufficient to determine the possible problems that will need to be addressed such as settlement
and to what extent the snow melt will need to cover.
f. New, an application and fee to change the approved asphalt to pavers will be necessary, this
can be done on a staff level.
g. New, The first 10 feet of the driveway from the edge of the road asphalt is required to be in
asphalt.
From: Cathy Conroy [
Sent: Tuesday, August 02, 2016 3:29 PM
To: 'Todd Nathan'; 'Dave Dantas'
Cc: Matt Pielsticker; William Gray
Subject: Driveway - 5705 Wildridge Road E
I spoke with both Willy Gray and Matt Pielsticker via phone today regarding the driveway. I explained
our interest in getting an experience of a full winter (while living in the house) to determine where the
ice forms and where the settling is occurring - before going to the expense of putting in the driveway.
also explained our plan to use pavers, not asphalt, as outlined in the plans that were submitted and
approved. They explained to me that they have a few concerns:
a) They want to make sure we are not tracking mud out of the driveway to the road
b) The TCO is usually only good for 6 months after its issued (although it can be extended)
c) They want to make sure that road base is sufficient for fire purposes
d) They want to assure that leaving it as road base does not cause worse problems
e) The believe the winter of 2016-2017 should be sufficient to assess the driveway issues.
Where we left it, is as follows:
We will consult with a soil engineer to see what they recommend. Their answer should help
address concerns related to both c) and d). Also, we all agreed their recommendations should
shed some light on e) above.
Somewhere in this discussion, it was mentioned that there is Town of Avon code that requires
asphalt for the first 10 feet of the driveway, so that the snowplows for the road can plow
without causing problems with pavers, etc. That would help address a) - above
Following soil engineer feedback, we will all review and determine how to proceed. Lastly, since we
have determined that we will be doing pavers, it probably makes sense to submit the paperwork to the
Town of Avon to change the materials on the approved plans.
Let me know if you have any questions. Dave, can you please recommend a soil engineer for me to
contact?
Cathy
From: William Gray [rnailto:wgray@avon.org]
Sent: Monday, August 01, 2016 4:48 PM
To: Dave Dantas <dave(@dwdantas.co1r1>
Subject: RE: Conroy Dirveway
Just spoke with Matt Item 4 is 2017 you have until the asphalt plants close late in the year. We cannot
see the need to push this off for two years.
From: Dave Dantas [n-iailto:dave Padwdantas.com
Sent: Monday, August 01, 2016 7:31 AM
To: William Gray
Cc: Matt Pielsticker
Subject: RE: Conroy Dirveway
Willy, Matt,
Is it ok to make Item 4 2018.
Thank you,
Dave
From: William Gray [mailto:wgray@avon.org]
Sent: Wednesday, July 27, 2016 8:21 AM
To: Dave Dantas <dave@dwdantas.com>
Cc: Matt Pielsticker <mpielstid.,er@avon.org>
Subject: RE: Conroy Dirveway
Item 4 needs to be 2017 not 2018
From: Dave Dantas [rnailto:dave@dwdantas.com]
Sent: Wednesday, July 27, 2016 5:51 AM
To: Matt Pielsticker; William Gray
Cc: Cathy Conroy (cathv@conroy.com); Todd Nathan
Subject: RE: Conroy Dirveway
Matt,
We would like to change these conditions:
2. Gravel on first 20 feet of driveway and road base on the rest
4. owner to finish final paving in 2018 ( a Minor Development plan will be submitted to change
from asphalt to pavers)
7. Installation of driveway heat tubing to be covered by 2015 Building permit and in Surety for
driveway heat and paving.
Regards,
Dave Dantas
DW Dantas Construction
dave@dwdantas.com
dwdantas.com
970 376 6111
PO Box 2322, 4791 Wildridge Road East
Avon, CO 81620
From: Matt Pielsticker [mailto:nipielsticker@avon.org]
Sent: Monday, July 25, 2016 6:06 PM
To: Dave Dantas <dave@dwdantas.com>; William Gray <wgravt?avon.ory>
Cc: Cathy Conroy (cahv_aconrov.com) <cath a conroy.com>; Todd Nathan <todd.nathan(@vahoo.com>
Subject: RE: Conroy Dirveway
Dave,
The Town can agree to your stated approach, and issuance of a Temporary Certificate of Occupancy.
subject to the following:
1. Soils compaction report will be submitted to the Town for the interim driveway design to
demonstrate that it will hold emergency vehicles; the compaction percentage is up to the soils engineer
but should be 90% or better.
2. The interim driveway will have gravel as a topping to prevent mud and dirt from getting into the
street.
3. The agreed finished product will be asphalt as approved by the Planning and Zoning
Commission. Alternate paving materials would need to be approved with Minor Development Plan
application.
4. The final asphalt should be installed no later than next year (2017) when the conditions are
correct.
5. The owner will bear all labiality for any failures to the driveway and cleanup of Town Property.
6. Surety in the form of cash or a letter of credit, will be provided for 125% of estimate to pave the
driveway.
Matt
Matt Pielsticker, AICP
Planning Director
Town of Avon
970.748.4413
,,,IXV'-_r%.nrru
From: Dave Dantas r��;�ilio:r_=av;er�._nvvdantas.com
Sent: Saturday, July 23, 2016 3:23 PM
To: William Gray; Matt Pielsticker
4 • 1
Cc: Cathy Conroy (cathv@conroy.com); Todd Nathan
Subject: Conroy Dirveway
Willy, Matt,
On the Conroy project there is a large backfill on the front of the home. We would like to postpone the
final finish of the driveway and the installation of the heated driveway lines. The drive finish and
Wirsbo piping is being delayed to let settlement occur.
We received the Building Permit in September of 2015. The plan has been to have a heated driveway
with a hard surface . The driveway heat and final finish should be done under the existing building
permit. In order to get a Temporary Certificate of Occupancy we would like to install gravel or road base
on the driveway to satisfy Fire District and Town requirements. A bond, letter of credit or cash
guarantee would be provided to the Town of Avon to cover the cost of the hard final finish on the
driveway and the cost of the heat lines ( Wirsbo) in the driveway.
Please confirm that this is the correct way to proceed.
Regards,
Dave Dantas
DW Dantas Construction LLC
PO Box 2322, 4791 Wildridge Road
Avon, Co 81620
dave@dwdantas.com
dwdantas.com
970 376 6111
Avon
COLORADO
Thursday, April 20, 2017
TO: Cathleen A. Conroy
RE: TCO extension for 5705 Wildridge Road East
Dear Mrs. Conroy,
I have received your request to extend the Temporary Certificate of Occupancy (TCO) for your home at
5705 Wildridge Rd. East in Avon CO.
Knowing that the weather has prevented any landscape or other outdoor improvements is more than an
acceptable reason for not being able to accomplish these tasks. With this in mind, the Town of Avon will
grant an extension of 90 days for your TCO. The original TCO was issued on January 27, 2017 will expire
April 27, 2017 and with the extension will now expire July 27, 2017.
Please keep in mind the requirement to have the driveway finished later this year is still in place.
Enjoy this summer.
Regards, William Gray.
Post Office Box 975 1 One Lake Street I Avon, CO 81620 970-748-4000 1 www.avon.org