Paonia grew by 2.54 acres last week when the Board of Trustees voted 4-2 to adopt an annexation application for two parcels of land submitted by Andrew Thliveris. The parcels are located adjacent to the Paonia Public Library. The Thliveris family recently opened Berg Harvest Mercantile, a farm market also offering specialty items including coffee, fudge and ice cream, on one of the parcels.
Trustees Bill Brunner and Suzanne Watson voted against the annexation and a resolution to accept the "Findings of Fact" on the proposed annexation, gathered from the June 26 public hearing.
Brunner, who voted against the Thliveris pre-annexation agreement on June 14, made a motion to amend the motion to accept the "Findings of Fact." Brunner's amendment would subject all features related to Berg Harvest, including signs, built or modified on the property associated with the annexation following submission of the petition, to come into compliance with "all respects related to the health and safety" of the town code, regulations and ordinances.
The motion is redundant and is included in the pre-annexation agreement, said town attorney David Marek. Adding terms and conditions to the agreement at this stage of the proceedings is not allowed without consent of the applicant, said Marek, since it's not part of the original application. "I don't think you can force this on them," said Marek.
Brunner also brought up zoning on June 14. In voting against accepting the pre-annexation agreement, Brunner demanded "an express statement affirming the right of the town to re-zone the property in the future as the town may deem necessary," as suggested by the Colorado Municipal League. Town manager Jane Berry replied that the CML issue Brunner referred to doesn't apply, and that the town "has the right to rezone any parcel of property within the Town of Paonia at any time in the future . . . Zoning and rezoning is an inherent right of every local unit of government across this country in terms of planning and zoning law." It's also a right of the property owner to request a rezoning of their property, and the same process would apply, said Berry.
At the Aug. 9 meeting, Brunner said his specific concern is that other in-town businesses are subject to the building and sign codes in the town's Land Development Regulations (LDR, also known as the Town Code). "All of these things require people to toe the line and spend their money to meet these regulations," said Brunner. "I'm speaking specifically, the sign code."
Brunner said he wasn't looking to "pick any particular feature, but it looks to me like the signs are wildly out of compliance with our sign code and today there were more signs going up on the building." Signs advertising breakfast and ice cream are "in direct competition with other businesses on main street (sic) and I think everybody should have to play by the same rules."
Berry said Brunner's interpretations are incorrect, that the Thliverises have complied with "every aspect of town code," and that the building inspector kept a log of every interaction. She explained the difference between downtown C-1 Core Commercial zoning versus C-2 Community Commercial, under which the Thliveris property would fall. It's a "completely different type of zoning classification."
The town has also been lenient of local businesses posting sandwich boards and temporary signs, said Berry. "For a farm market, when things are in season, businesses want to attract as much business as possible."
In addition, said Berry, "It's not the job of the town board to interpret these codes. It is the function and responsibility of staff."
When Brunner asked about the "grandfather clause," Berry replied that the term is a thing of the past and there is "no such thing as grandfathering." A property is "either in compliance, or non-conforming."
Watson referred to square footage and setbacks as allowed under C-2 zoning in relation to the Berg Harvest signage. She said it would have been helpful to have a letter from the building inspector detailing compliance, and that the town's Growth Management Agreement with Delta County regarding unincorporated portions of the town's surrounding area doesn't agree with the application. "We have options to negotiate conditions," said Watson. "I'm just saying it's not so much as a free-for-all as Ms. Berry indicates."
A motion by Watson to strike Paragraph 6 of the resolution failed by a 4-2 vote, with Watson and Brunner voting aye. The paragraph states that the area proposed for annexation be in compliance with the town's Growth Management Plan and satisfies the current Comprehensive Plan.
Berry said Paragraph 6 is "a critical and necessary component of the findings of fact and supports the other findings of fact." She said this has been explained before, and will be discussed during the zoning process.
In considering the motion to adopt the Thliveris Addition Annexation, Watson asked why it is being considered as an "emergency ordinance." Berry responded that the Colorado Municipal League recommends it and provides a template and the forms for adoption of annexation of ordinances as emergencies. While state statute requires that annexations take effect immediately, the town is still required to process paper work and post all notices under very strict guidelines, said Berry. In addition, property owners are immediately subject to all town taxes and must immediately adhere to requirements and laws of numerous state and local agencies.
"I believe this is a very positive annexation for the Town of Paonia and I encourage the rest of the board members to support it," said mayor pro tem David Bradford.
In voting against the ordinances, Watson said her only problem is "the process" used to approve the annexation petition, which trustees voted unanimously to approve on May 24. Watson was absent when the board voted, 3-2, to accept the pre-annexation agreement. Brunner and trustee Chelsea Bookout voted against the agreement. Bookout stated that her concern was in regard to zoning.
The zoning hearing for the Thliveris parcels is scheduled for Aug. 23. On Aug. 11 the town zoning board met to review the application. The board also reviewed an application for the Rowell Zoning Amendment Application properties located at 205 North Fork Avenue. The properties are currently zoned I-1, Light Industrial; the application calls for re-zoning to C-2, Community Commercial, with amended use of dwelling unit as a permitted use.