By Joseph Lekarczyk
In a procedure not witnessed in recent memory, the Board of Trustees (BOT) conducted a quasi-judicial public hearing at Monday night's meeting concerning a citizen's appeal of a building inspector's decision on a house still in the process of being renovated five years after the flood.
In an episode as riveting any Perry Mason television drama, homeowner Bonita Yoder pleaded with the Trustees to overturn the building inspector's findings that, one, she could not use a specific type of industrial foam to act as a moisture barrier/adhesive between an exterior rock facade and the interior basement wall of her home on the corner of Second Avenue and Park Street; and two, she could not act
as the general contractor for her home repairs because of residency issues and a lack of general construction knowledge/experience. There was also a question of whether or not Ms. Yoder needed a Certificate of Occupation (CO) to live in the house, or whether or not a CO had ever be rescinded post-flood.
Town Attorney Brandon Dittman laid out the ground rules for the proceedings. Ms. Yoder would be allowed to lay out her case (with numerous exhibits, i.e., emails, photos, and specs for industrial products, etc.); then the Board would be able to ask question if they were so inclined. Next the building inspector (Mike Thison) would present his case for his findings (also with similar exhibits), and again the Trustees would be able to question Mr. Thison. Ms. Yoder would then be given a chance for rebuttal, and then it would be time for Town staff to weigh in. Again, Ms. Yoder would be allowed to offer rebuttal for the “last word.”
Yoder made her case why she thought that the foam could be an acceptable substitute for the for the building inspector's preferred methods. She also cited ambiguity of Town Code, which requires “intent” of residency for someone to qualify to be their own general contractor and pull a building permit, and she also claimed undue financial burden ($1,200 versus $6,000+). Thison cited passages from Town Code that indicated that the foam could not be used for “structural” purposes. Town Administrator Victoria Simonsen admitted that as far as she knew, no CO had ever been rescinded by the Town or FEMA post-flood (apparently the home did get a “yellow” sticker) and therefore no issuing of a new CO was required for occupancy. At least once during the proceedings Attorney Dittman had to step in when things got off track with a line of questioning that was deemed to not be relevant or germane. As her “last word(s)” Yoder requested that the Trustees go against Nancy Reagan's advice and “just say yes” so that she could get on with her recovery efforts, and that the wishes of her good friend, and “Grande Dame of Lyons” (LaVern Johnson) “to finally seen the repair of this house before I die,” because at the rate things were going, LaVern will have to live to be 110.
When it was time for the Board to make a finding. Trustee Mark Browning (himself a lawyer) indicated the “burden of proof” was on Ms. Yoder. He felt clearly that she had not done so as far as the “structural” aspects of the foam went. Nor did he feel that she had made a case for undue financial burden, since he said most if not all the residents who opted to rebuild after the flood have faced similar unexpected costs and obstacles. He did however agree with Yoder's contention that “intended residency” in the code was a little arbitrary, and since she fully intended to follow the building codes for all her repairs he saw no reason to deny her a building permit or the right to act as her own general contractor. Nearly everyone on the Board agreed. Yoder's appeal to use the foam alternative was denied in a seven to zero vote, while her appeal to be allowed to act as general contractor was approved in a five to two vote (Trustees Jocelyn Farrell and Wendy Miller were the dissenting votes).
The rest of the evenings agenda was a little anti-climatic.
Sgt. Bill Crist of the Boulder County Sheriff's Office reported that, “the Halloween Parade went off without a hitch,” despite the lack of three deputies who were supposed to work the traffic detail but were delayed in Boulder when the CU Buffs' football game that they were also working went into overtime. He also informed the Board that he was making preparations for the upcoming Christmas Parade, and that there had been a few “vehicle trespass” incidents, however a couple of suspects have been identified. Crist and his deputies are also investigating a graffiti incident in LaVern Johnson Park. It should also be noted that according to Crist the drug take back program was very successful. Thirty-eight people dropped off unwanted, unused, and/or out of date prescription drugs; enough to fill five garbage bags full!
Simonsen gave the flood recovery and administrative updates. She reported that the contract for one of the new public works buildings east of town needs to be rebid, but that the grading and road base at the site are going "amazingly well." She said the $1.3 million dollar reimbursement for the McConnell Bridge project should be arriving soon, and that the cultural and environmental impact studies for Bohn Park – Phase 2 should be approved shortly.
The Apple Valley water main relocation is on track for a Spring of 2019 completion, and Simonsen asked for direction on the relocation/installation of the outflow pipe for the wastewater treatment before final FEMA approval. Since everyone seemed confident that the approval is forthcoming, and to wait would cost time and/or money (everything would have to be re-dug) and since Longmont has agreed to share the costs, the Trustees decided to, “roll the dice.”
Simonsen was also pleased to announce that the final of the twenty-eight “buy out” flood properties has been completed. She also played a cute two minute promotional video featuring Santa riding around Lyons in a golf cart, and touting the virtues of spending time and dollars in Lyons during the upcoming holiday season. The video was funded by the tourism grant that the Town recently received.
During audience business a couple of business owners presented facts and figures that they felt indicated that the problems over at the wastewater treatment plant (high BOD numbers) is not a result of a few businesses sending too much waste down the line, but rather a wastewater treatment plant being built that is inadequate for the present and future needs of the town. This will no doubt come up again in two weeks when the BOT is scheduled to hold public hearings on three ordinances that will increase the wastewater treatment fees and rates for residents and businesses.
The consent agenda consisting of the aforementioned three ordinances, a resolution approving an agreement between the Town and the Longmont Humane Society, a resolution renewing professional services with the Adams Group for financial audit services, the November accounts payable, the October 15 BOT meeting minutes, and the October 25 BOT special meeting minutes was approved with a quick seven to zero vote.
A separate resolution approving rules and standards for the Revolving Loan committee was pulled to make a few adjustments in the wording, however after a short discussion, the motion to change the wording was rescinded, and this too was approved.
Staff asked for direction from the Board after a brief discussion concerning the realignment of the Second Avenue Bridge. FEMA has twice before rejected design options presented by the Town for a new bridge. The latest iterations will either require the Town to provide alley access to several homes along the river upstream from the bridge via a buy-out property along Park Street between Second and Third Avenues (option A), or create steep ramps from the elevated lead-ins to the bridge to access the alley (option B). This option would require retaining walls being built, which would completely cut off access to one resident's garage. It is also the option that is least desirable for the Lyons Fire Protection District who have said they won't sign off on any permits for accessory dwelling unit requests because of the steepness of the ramps, the lack of turn-around space, and the distance of fire hydrants. The Trustees directed staff to go with option A, and submit it to FEMA.
Representatives from the Dave Miller Ditch Company (serves fourteen residents in Apple Valley) presented some new options for relocating their ditch, which was destroyed during the flood. The new plans call for less impact on Town owned land at the upper end of Apple Valley near the span bridge, and were well received by the Trustees. Two resolutions to lease Town owned land (Bohn and LaVern Johnson Parks) to TellurideBluegrass Festival, Inc., for the 2019 RockyGrass and Folks Festivals were approved; as were two resolutions concerning amendments to the contracts with Ripley Design, Inc., for work done on LaVern Johnson Park (basically bookkeeping with no additional expenditures of funds). Direction to staff was also given concerning “legislative procedures and social media policy,” which was discussed at length during a pre-meeting workshop. A couple of suggestions by Browning having to do with the dissemination of information, already in the public record, without the need for a freedom of information act request died for the lack of a second.
Because the hour was growing late, a discussion and direction to staff concerning the 2019 budget was put off until a special workshop on Wednesday, November 7. Also, Trustee reports were sent via email to each other so that the Board could expeditiously go into executive session for two items. The first concerned strategies, positions, negotiations, and legal advice for the sale, purchase, or lease of real property (Western Stone), and the second for determining positions, developing strategies, and instructing negotiators, and for legal advice regarding the Town's Energy Cost-Savings Contract with Honeywell International, Inc., for the new wastewater treatment plant.
When the Trustees resumed their regular meeting some time later, they adjourned and went home exhausted, despite the clocks having been turned back by an hour for daylight savings just forty-eight hours earlier.