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Town sued over zoning dispute
From Silverton Standard, the place where you can write!
Posted on December 24 2009, 11:11am by Mark Esper in Local News category
Owner of small shop used to make sleds says zoning rules are unconstitutionally vague
By Mark Esper
Owners of a small sled-making shop in downtown Silverton filed a lawsuit against the Town of Silverton on Tuesday, Dec. 22, after a proposed agreement to end a zoning dispute fell apart.
Paul and Sharon Zimmerman, owners of the Pickle Barrel restaurant and Smedley’s Ice Cream Parlor, said the proposed settlement was unacceptable.
The dispute centers on a 900-square-foot shop behind Smedley’s that is being used to assemble sleds by a two-person crew working for Mountain Boy Sledworks, the Zimmermans’ tenant.
Town planning and zoning officials ruled the shop was a “manufacturing” operation not suitable for downtown under current zoning.
The Zimmermans and the sledworks owner Brice Hoskin, argued it was an “arts-and-crafts” outfit that is allowable.
The Town Council last week approved a proposed settlement that would allow the sled-making to continue if the Zimmermans applied for a zoning change within seven days
The draft agreement, written by Town Attorney Jeff Robbins, also stipulated that the town and the Zimmermans would share the cost of an architect’s review of the small shop space to see if it is compatible with an alleged “change of use.”
“We couldn’t go with it,” Paul Zimmerman said Tuesday. “It would require us to provide a full set of architects’ stamped plans and would have us give up all rights to appeal.
Pointing to the lawsuit, Zimmerman said, “Here’s where we ended up at.” 
Hoskin described the town’s actions in this case as an“unconstitutional, arbitrary, and capricious approach.”
 “When our lawyers looked at the agreement drafted by Town Attorney Jeff Robbins, they found that it was not a compromise in any way,” Hoskin said.
“We would have to give up all appeal rights and place ourselves in the hands of the Planning Commission, Town Board, and town staff to allow or disallow our operation,” Hoskin said. 
He added that the Zimmermans would have to give up their appeal rights on the building code issue, in addition to the current Certificate of Occupancy on their building, and submit to an architectural review, with the end product being stamped architectural plans and a letter from the architect. 
“This would cost at least $5,000, which is likely much more than the Town Board thinks is ‘reasonable,’ which would then force the Zimmermans to sue the Town simply to get half of the architect’s fees paid,” Hoskin wrote in an e-mail.
Hoskin and Zimmerman said they are still seeking a compromise and hired an architect to take a look at the space in dispute and see if town officials’ determinations are correct.
The Zimmermans have also filed for a rezoning of the workshop space to E-D, which if approved would allow them to continue to use it for the purposes for which it was built.
The lawsuit filed Tuesday in San Juan County District Court by Grand Junction attorney Paul Sunderland, alleges that the town’s Board of Adjustment, in its Dec. 3 vote upholding the town staff’s ruling of a zoning violation, acted with “no factual or legal basis” for its decision.
The lawsuit says the town’s actions have been “completely arbitrary and capricious and therefore should be reversed.”
The lawsuit also alleges that the town’s building and zoning codes are unconstitutionally vague and “purport to vest in Town officials absolute and unfettered authority to arbitrarily and capriciously deprive property owners of valuable property rights without any public purpose and without any due process …”
Sunderland asked the court to issue a stay of all proceedings, including enforcement action by the town.
He also asked the court to enter an order finding the town building and zoning codes unconstitutional.
Meanwhile, town/county building official Dee Jaramillo wrote a Dec. 15 letter to Paul Zimmerman explaining why the town feels an architectural review is required.
“It is the town’s position that when Mountain Boy Sledworks began its operations at your property located at 1314 Greene Street you allowed the use of a portion of your building to change from a Group ‘B’ occupancy to a higher hazard category Group ‘F1’ occupancy,” Jaramillo stated.
Jaramillo wrote that “such changes may be permitted subject to my approval, but only to the extent that such changes do not present an increased hazard …
“Therefore, it is my determination that you are required to have an architect make recommendations to bring your building up to code and to meet F1 occupancy standards before I can issue a certificate of occupancy for the space housing Mountain Boy Sledworks’ operations.”
Jaramillo also told the Zimmermans that “you may also have to bring your electrical system up to code for your occupancy’s needs.”
Sharon Zimmerman expressed frustration over the dispute.
“It’s a shame town officials were unable to come to an acceptable compromise and that it’s gone this far,” she said.
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