With a record of 17 wins and six losses, the Ridgway Lady Demons girls basketball season ended in Durango on Saturday after a 47 to 42 loss against Paonia in the 2A Region 3 Championship match. Photo by Bill Tiedje Read more...
|OURAY COUNTY Disclosure duty and lending fallout hotly debated||| Print ||
|Wednesday, 30 October 2013 20:32|
Section 9 of the county land use code, current and proposed, addresses structures, not uses. Land use staff make the conforming/non-conforming structure determination at the time a building permit is requested.
Non-conforming uses refer to zoning regulations. An authorized use (for example, mining, agriculture, home occupation, guest ranch, etc.) could become non-conforming if zoning regulations are changed and the use is no longer authorized in that area. The use would be legal, non-conforming.
Non-conforming parcels refer to land parcels formed in compliance with subdivision regulations but which are not in compliance with regulations passed later. For example, a 20 acre parcel could be conforming but become non-conforming when new regulations require parcels be no fewer than 35 acres. Such parcels are legal, non-conforming.
Castrodale identified a conflict between the part of Land Use Code section 4 that addresses non-conforming structures and the proposed amendments to code section 9, visual impact regulations.
When voting on the proposed amendments, the Ouray County Planning Commission was aware of the conflict and that section 4 would have to be amended if section 9 changes are adopted. At the OCPC meeting on Tuesday, Aug. 20, member Randy Parker asked whether the OCPC could go ahead and look at amending section 4, even though the BOCC has not directed it to.
"We have to address the questions regarding section 4," Parker said. "There were enough concerns at the (BOCC's) visual impact hearing regarding the right to rebuild, disclosures, etc. All of that is section 4."
OCPC chair Ken Lipton said anyone, including county residents, can bring up a proposed amendment for consideration.
Section 4 requires that a non-conforming structure destroyed by more than 50 percent of its cost, or destroyed such that structural alteration is required, must be brought into compliance with the then-current land use code, including VIR. Structural alteration includes any expansion of the structure.
The proposed section 9 would allow a one-time exemption for structural alterations and reconstruction of non-conforming structures, provided the structure is not expanded or enlarged by more than 20 percent and the structure is not on a bench, ridge, escarpment or hilltop. That amendment, according to supporters, is less restrictive than section 4.
Real estate broker Donna Whiskeman told the BOCC on Aug. 7 structures that become non-conforming under the proposal must be disclosed as such on sellers' disclosure forms to potential buyers.
Whiskeman presented the BOCC a letter from attorney Jordan Bunch, written at the request of the Montrose Board of Realtors, stating the opinion that sellers of properties impacted by VIR and their brokers "will have a duty to disclose non-conforming structures." Bunch is an attorney with the Boulder firm Frascona, Joiner, Goodman and Greenstein, P.C.
Bunch based her opinion on court holdings stating that facts must be disclosed that "in all good conscience should have been disclosed." In addition, the letter said, Realtors and brokers have a duty to disclose "any adverse material facts."
In a phone interview, Bunch clarified that sellers and brokers without actual knowledge of non-conformity would be unlikely to have a duty to disclose, and the buyer would have to prove they knew of the non-conformity. "I don't think you can take a hard line position that sellers and brokers would never have to disclose non-conformity," Bunch said.
Whiskeman also told the BOCC that sellers should probably have been disclosing structures that do not conform with the 1997 VIR, and she talked to Castrodale about having land use staff determine if any of her current listings have non-conforming structures. If so, she will make that disclosure to potential buyers.
"We (brokers) have not been good about doing this," Whiskeman told the Plaindealer this week. "We must look at all structures in the current visual impact corridors and within 1.5 miles of the corridors, determine if they conform and disclose if they do not. Not doing this in the past is not an excuse for not doing it now."
Castrodale told the Plaindealer that if a Realtor inquires whether a property and related, existing structure is conforming or non-conforming, land use staff will schedule inspections and make determinations as time allows. The number of inquiries could become problematic as far as staff time, though.
Whiskeman also introduced mortgage lender Wil Harmsen with Cornerstone Home Lending in Montrose, who told the BOCC that appraisers will have to check a box that says "illegal" for all structures that become non-conforming.
The Uniform Residential Appraisal Report, Harmsen said, has an area entitled "Zoning Compliance." The four possible boxes to check are Legal, Legal non-conforming (Grandfathered Use), No Zoning and Illegal.
Despite the "zoning" title of the section and the "use" wording, it is Harmsen's opinion that if a house cannot be rebuilt exactly as it was after a catastrophe, then the appraiser must check "Illegal."
"My main concern is section 4.4," Harmsen told the Plaindealer in a later interview.
Boulder attorney Bunch told the Plaindealer she does not know a definitive answer as to whether the appraisal form refers to uses only and not to non-conforming structures.
Parker, speaking as an individual and not as a planning commission member, said on Aug. 8 structures that become non-conforming through a change in the land use code are not necessarily illegal. They are legal structures because they were built to the then-current code, and only the land use office can determine if they become non-conforming. Former OCPC alternate Dudley Case said the same and gave the opinion that sellers do not have to disclose legal, non-conforming structures. Parker and Case are both retired attorneys.
Harmsen agreed that only land use staff can determine if a structure is non-conforming. However, he said, statements by proponents of the section 9 amendments that non-conforming structures are "grandfathered" does not mean they are "exempt." The amendment does not exempt non-conforming structures because they get only a one-time exemption, and at some point a homeowner will have to bring the structure into compliance with the then-current code, according to Harmsen.
"I don't agree or disagree with the (section 9) changes," Harmsen said. "As a lender I am more worried about loans. Say I make a loan on a "Cadillac" house and it burns down. The land use code (section 4) mandates that it cannot be rebuilt without conforming to newly-enacted regulations. That house I made a "Cadillac" loan on now becomes a "Pinto" house."
County Attorney Marti Whitmore is continuing research on the appraisal form question and the duty to disclose. She told the BOCC on Aug. 8 that entities involved in training appraisers and lenders sometimes mix the terms "use" and "structure." It is not certain that the "Zoning Compliance" area of the appraisal form applies to zoning only.
Whitmore said in the end it is all about risk to repayment of the loan. The "cost to cure" to bring a destroyed structure into compliance with regulations may affect the appraisal value. If a structure can be rebuilt but will be different, that may require a higher level of mortgage insurance or additional bonding.
The determination whether a structure has become non-conforming is on a case-by-case, site-specific analysis, Whitmore said in an interview. And non-conformity may be required to be disclosed if it is "material."
Whitmore plans to have more information on the issue by the time the public hearing continues.
"This has been a process," Whiskeman said. "We have information now we didn't have a month ago. We have learned, the board has learned, everyone has learned and we go forward now."
Whether the disclosure and lending issues impact the BOCC's decision to adopt, reject or modify the proposed changes remains to be seen. The board has closed the public comment period and will begin deliberations in a continuation of the open public hearing on Sept. 24* at 1:30 p.m. in the 4-H Center.
*On Sept. 24 commissioners continued the hearing to Nov. 6.
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Final: Ridgway girls lose 47-42 to Paonia after a valiant 4th quarter comeback attempt.
Update: 45-42, Crozier hits 2 from the line.
Update: 52 seconds, 45-40 Paonia
Update: 2:19 remaining, Paonia on top 43-34
Update: Paonia up 43-32 in 4th Qtr.
Update: Paonia up 25-21 at half.
Update: Paonia up 21-19 in 2nd Qtr.
Update: Tied 13-13 end of 1st Qtr.
Update: Teams trade leads early - Ridgway up 9-8.
Update: Ridgway girls are up 6-0 early in Durango.
Follow all the action of the Ridgway girls basketball team vs. Paonia right now on Twitter, @ocplaindealer
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