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OCN > 2305 > El Paso Board of County Commissioners, March 28, April 4 & 18 – Overlook Estates rezone denied

El Paso Board of County Commissioners, March 28, April 4 & 18 – Overlook Estates rezone denied

By Helen Walklett

At the April 18 El Paso Board of County Commissioners (BOCC) land use meeting, the commissioners voted to deny a request to rezone to 2.5 acres a 5-acre property in the Overlook Estates neighborhood to the north of Old North Gate Road. At the same meeting, the commissioners heard a variance of use for a second dwelling at an RR-2.5 (rural residential) property in Black Forest. The BOCC also made decisions relating to the Black Forest slash and mulch program and Monument Academy.

Overlook Estates rezone

The commissioners voted 4-1 to deny a request by Steven and Jennifer Liebowitz to rezone their property in Overlook Estates from RR-5 (rural residential) to RR-2.5. The rezone would have allowed them to apply to subdivide the existing lot into two 2.5-acre lots. The Summit Drive property is north of Old North Gate Road, west of Silverton Road and just north of the Flying Horse development and the Colorado Springs city limits.

Lekishia Bellamy, planner I, Planning and Community Development Department, told the commissioners that the El Paso County Planning Commission had voted 7-2 to recommend the application be denied at its March 16 meeting. She said the denial was based on a perception that the rezone was incompatible with the surrounding RR-5 properties, that it was spot zoning, and amid concerns that the RR-5 zoning district was under attack. See www.ocn.me/v23n4.htm#epcpc.

Bellamy told the commissioners that 20 adjacent property owners had been notified and the county had received 154 responses, two of which were in favor. She said concerns raised by the community centered on it establishing an unwanted precedent, traffic congestion, decreased home values, incompatibility with the surrounding area, and water availability.

The applicant was represented by Craig Dossey, president, Vertex Consulting Services, and formerly executive director, Planning and Community Development, who said the area was identified as one of minimal change in the county master plan and commented that he could not think of anything more minimal than splitting five acres into two, stating, “that’s about as minimal as you can get and affect change on this property.” As part of the application, the commissioners had to decide if there had been substantial change in the area since the last zoning change. Dossey argued that this was the case, most notably with the nearby Flying Horse development. He said objections had come from people more than a mile away and yet there was so much smaller development closer to the property.

Dossey stated that “hidden” change had already happened in the neighborhood in the form of accessory dwelling units, with 12 within a third of a mile of the city boundary. He commented, “There is already a density transition that has been forming.” Pointing out the ridgeline to the north of the applicant’s property, Dossey said this topography created a density transition boundary and that none of the homes was visible from the other side of the ridge.

Neighbor Greg Wolff, a realtor who had spoken in favor of the application at the Planning Commission hearing, did so again, saying, “I support the project. I believe in personal property rights.”

Fourteen people spoke in opposition, raising concerns that the rezone was spot zoning and would set a precedent if approved, highlighting water availability issues, increased traffic, light pollution, fire risk, and incompatibility with the surrounding area. Jerry McLaughlin, a resident and president of the Sun Hills Homeowners’ Association, challenged the accessory dwelling unit justification for the rezoning, saying second home approvals are not zoning changes but are accomplished via special use permits and are well-established and compatible with the current zoning. Another neighbor told the commissioners that the Liebowitzes were asking them to change their property rights and that those objecting were asking them to defend theirs.

In rebuttal, Dossey said that the rezoning would not affect the neighbors’ 5-acre zoning, commenting, “They’re over the hill. As far as I’m concerned, they’re a completely different neighborhood.” He argued the rezoning would not affect their property rights as they would have “the same uses under the RR-5 today that they’ll have tomorrow, that they’ll have 10 years from now unless they rezone their property.” Dossey had earlier highlighted the allowed uses under the RR-5 zoning that the Liebowtizes would be giving up by rezoning, many of which he said would generate more traffic, noise, water use, etc. than one additional single-family lot. He questioned how the proposal could be called spot zoning when the county’s master plan allowed for 2.5-acre lots with this placetype and remarked that Overlook Estates’ covenants allowed for 1-acre lots.

Applicant Jennifer Liebowitz said to date they had spent $25,000 on the application but had taken that risk because they were told by planners during the process that they were in accordance with everything that was required. She said that after the Planning Commission decision, they were told they had not shown substantial change in the area. Liebowitz said, “I really have to question that. We have the entire Flying Horse development that I look at every single day from my back deck. We have a school of 3,000 people that come and go every single day along with the traffic from Sun Hills coming past our property.” She commented, “That is substantial change to me.”

Steve Liebowitz told the commissioners that they had had three different project managers at the county during the application process and had gotten the water decree first after being advised that water would be the biggest challenge. He said they were led to believe that it was an objective process and were repeatedly reassured that there was nothing to worry about. Bellamy, their third project manager, said there were no issues and concerns but that there was some limited opposition.

Steve Liebowitz said that when the Planning Commission began to hear public input, they repeatedly allowed issues that were not related to the review criteria such as precedence, land values, and water. He said it became obvious that several of the commissioners were preconvinced to rule against our request. He stated, “We were positive and optimistic that the process would be objective and fair. Since the Planning Commission meeting, we’ve been in total shock that the commissioners didn’t follow their own master plan but listened to the misinformation campaign orchestrated by the Sun Hills Homeowners’ Association.” He added that he had received a phone call from Bellamy the day before the BOCC hearing and that during that conversation Bellamy related that we (I’m assuming she meant her department) were shocked that the Planning Commission had denied the rezone request, especially since we had met all the review criteria. Bellamy then stated she hoped the county commissioners would approve our request at today’s meeting.

Commissioner Holly Williams commented, “I think that this application doesn’t meet the criteria and I say that because I don’t consider the substantial change in Flying Horse to be something that was under our control.”

Geitner said, “I do believe this is in compliance with our master plan because it specifically says 2.5-acre lots are in that large lot residential, so I do disagree. It’s in conformance with our master plan.” She added that while she agreed the county did not make the changes at Flying Horse, the question was “had it changed?”

Commissioner Longinos Gonzalez Jr. said, “In this case all the changes that were noted were accessory dwelling units, not a splitting of zones. That’s why I think it’s not compatible.” Commissioner Stan VanderWerf said he was concerned that a precedent could be set which would really cause a problem.

The vote to deny was 4-1 with Geitner the no vote.

Black Forest second dwelling variance approved

Also at the April 18 land use meeting, the commissioners approved a variance of use to allow a second dwelling at a 2.89-acre property zoned RR 2.5 on the southwest corner of the intersection of Ford Drive and Milam Road in Black Forest. The application came to the BOCC with a recommendation for approval from the Planning Commission. See www.ocn.me/v23n4.htm#epcpc.

Commissioner Geitner made the meeting aware that the applicants were family friends but said she felt she could be fair and impartial in the decision-making process.

The county approved a site plan for a new single-family dwelling in August 2022 and, at that time, the original 1960s dwelling was converted to an accessory living quarters. Such quarters can only be used for occasional temporary stays by family and friends. Christian Haas, planner I, Planning and Community Development, explained that a secondary dwelling was a more intense use which can be permanently occupied and rented out.

Nina Ruiz of Vertex Consulting Services and representing the client said the possibility of a variance of use option was not discussed at the time of the initial application. County staff would only have explained it if the applicant had said that was what they wanted to do. She said, “It wasn’t Mr. Patterson [the applicant] trying to be sneaky or trying to do anything out of order. He just simply didn’t know that that was an option.”

No one spoke in support. Terry Stokka, chairman, Black Forest Land Use Committee, said that while the committee was not opposed to accessory dwelling units or guest houses, it did oppose a permanent dwelling. He said, “Approving two dwelling units on this acreage which is only 2.89 acres is a violation of the land development code and the county master plan. It effectively creates a subdivision.” He said it created a dangerous precedent.

Ruiz stated there were five properties within half a mile with two dwelling units, so the precedent was already set.

Gonzalez said that if the application had been the first one, he would be more inclined to disapprove but there were already others utilizing the same variance. Holly Williams agreed. The vote to approve was unanimous.

Monument Academy minor subdivision

At the April 4 BOCC land use meeting, the commissioners approved a request by Land Resource Associates for approval of a minor subdivision to create one lot and four tracts on the almost 63-acre site of the new Monument Academy. It is located at the southeast corner of the intersection of Walker Road and Highway 83.

The 19.38-acre lot will contain the high school, recreational fields, and parking. Two of the tracts are set aside for future development, and two will be transferred to adjoining property owners as part of a property line survey adjustment.

Black Forest slash and mulch program

At its March 28 meeting, the BOCC approved the 2023 memorandum of understanding (MOU) with the Black Forest Slash and Mulch Committee (SAMCOM), the nonprofit responsible for the program’s daily operation.

This wildfire mitigation program, staffed entirely by volunteers, accepts slash (tree debris including branches, leaves, needles, etc.) from residents that is ground into mulch, which is available free of charge to the public.

Under the MOU, the county contributes up to $40,000 toward grinder expenses, and SAMCOM provides $12,000 toward the costs.

The site, at the southeast corner of Shoup and Herring Roads, opened for the 2023 season for slash drop-off on April 29. Normal business hours will be Saturdays 7 a.m.-4 p.m.; Sundays noon-4 p.m., and Tuesday and Thursday evenings 5-7:30 p.m. The last date for slash drop-off is Sept. 10. There is a $2 drop-off fee for slash with a loyalty card available that offers a discount.

Free mulch will be available for self-loading from May 20 through Sept. 16. For large quantities of mulch, an end loader will be available on Saturdays only, 7 a.m. to 4 p.m., charging $5 per bucket.

For more information, visit www.bfslash.org. Anyone wanting to volunteer to work a shift can do so via the website.

The Pineries mountain beetle infestation

At the April 18 BOCC meeting, Judy von Ahlefeldt, a longtime resident of Black Forest, again spoke about a mountain pine beetle infestation in trees at The Pineries Open Space in Black Forest which has spread to private property. Von Ahlefeldt first brought the matter to the BOCC’s attention in early 2022 when she raised concerns about the method by which it was being treated. At the time, the county had signed a contract for $42,600 to have the affected trees masticated. See https://www.ocn.me/v22n4.htm#epbocc.

Describing the infestation as a very serious threat to Black Forest, von Ahlefeldt said the 2022 mastication was ineffective. She said she had been trying to work with the county parks department on the matter for 14 months without any success.

She called for county forestry staff to speak with the state forestry service and said that they needed to get as many of the infected trees out as possible but that there was currently no program to do that.

The Pineries Open Space is on Volmer Road north of the intersection of Volmer and Shoup Roads in an area of Black Forest extremely damaged by the 2013 fire. It totals 1,070 acres and opened to the public in June 2020.

Helen Walklett can be reached at helenwalklett@ocn.me.

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