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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: 1?9c 11 ✓ed VU117 �Jtd� 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