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The Chaffee County Board of Appeals met Feb. 22 for a Review of Determination regarding Chaffee County Building Inspector Dan Swallow’s decision to deny Alison Brown a certificate of occupancy for her residence at 11600 Antelope Rd. The board voted four to one to deny the appeal.

The decision involved extensive debate, a failed motion and a motion stipulating that if Brown called for a second property inspection and Chaffee County Planning and Zoning approved it, the county must then issue the CO.

The county inspector earlier denied the CO for Brown’s new home on the grounds that land use codes were violated, which Brown appealed. Both Swallow and County Attorney Jennifer Davis argued that Brown’s foxhounds quartered on the property constitute a violation of land use codes regarding kennels and outfitting facilities. Davis said the remedy for land use code violation is to deny the CO.

Brown’s appeal argued that the certificate should only be denied because of safety issues related to building code violations.

Swallow said there was only one issue before the board: “Does the building inspector have the right to deny a certificate of occupancy based on land use code violations?” Swallow, referring to various sections of the International Residential Code, argued that he is allowed to deny or revoke the certificate based on violations other than building safety. He said Brown is in violation of land use codes because she never applied for a limited impact review.

Board member Gary Yaeger expressed concern: “I think it’s a pretty slippery slope. … If I have a 1,000-acre property and something on that property is in violation of some land use code … what you’re saying is that any violation of any part of county codes could keep you from issuing a CO on a building on that property?”

“That’s correct,” said Swallow.

Swallow and Davis said Brown had been in “knowing violation of land use code” for more than a year. Davis said denying the CO represented an opportunity “short of court action” to force compliance. Brown’s counsel, Michael Scott, said court action is presently in process, and that Brown has taken steps to comply with changes to the land use code.

In requesting that the board uphold Brown’s appeal, Scott made three points regarding the IRC:
1. If a CO is issued, it does not waive other land use code issues.
2. If a building doesn’t violate building codes, the language of the IRC states, “the CO shall be issued.”
3. The intent of the IRC is building safety, not code enforcement.

Brown said the county has not specified which building on her property constituted an “outfitting facility” and that she changed her plans for the residence based on feedback from Chaffee County Planning Manager John Roorda, who approved a building permit.

Asked about not applying for the limited impact review, Brown said she is still waiting for a kennel sound measurement necessary for the process. She said she has made efforts to comply with the county’s new land use code requirements by moving her hounds and ceasing “outfitting activities” on her property.

Swallow repeatedly said that Brown is “defying” the county. “The County has no problem with either kennels or outfitting facility – provided she gets planning commission approval. If she were making an effort to comply, then we would issue the CO.”

Board Chairman Lon Kersting said, “The dogs are not there. She’s not running an outfitting facility on this property. Is it this board’s jurisdiction to say you could, so you need to issue a CO? Or is the only question whether (the building inspector) has the ability to say no?”

After lengthy discussion on whether the county has other methods to deal with land use code violations, Yaeger said, “As a citizen and as a builder, the last thing I want to see is the county using this tool to enforce compliance.”

The board asked Swallow if the building inspector could issue a temporary certificate or even revoke a permanent one, once issued, for failure to comply with the land use code.

“Yes,” said Swallow. “But politically speaking, it’s much more difficult to revoke a CO than not to issue it. It creates a PR problem. But if (Brown) were in compliance with the development code, I’d issue the certificate tomorrow.”

In subsequent discussion, two opposing views emerged, resulting in two separate motions. A failed motion, proposed by Yaeger, was based on the view that the board was only concerned with the issues of the building code, and that it was within the board’s jurisdiction to say that not only can the building inspector issue a CO, but that he must, if all the building safety requirements have been met.

Kersting made a second motion, seconded by Yaeger, that, since land use code is referenced in the IRC, the building inspector does have the right to withhold the original CO but that, if Brown calls for a second property inspection with Planning and Zoning approval, the county must then issue a CO. The motion passed four to one with Matt Timme casting the dissenting vote. The board confirmed the ruling constituted a denial of the appeal with a way forward.