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Don’s Garden Shop

For the past three years, Don’s Garden Shop, owned by Don Humphrey, has sold plants and gardening supplies in Falcon during the spring and summer months. However, this summer will be different. The garden shop at Highway 24 and Meridian Road closed at the end of June. The closure is the result of the county planning department’s determination that for Humphrey’s business to continue, the parcel of land at Highway 24 and Meridian Road must have a special use approval. The parcel is currently zoned community commercial.To secure a special use approval, the parcel would have to be re-platted and a site development plan would have to be submitted to the county, said Terry Rorick, who enforces code requirements in eastern El Paso County for the county’s planning department. Rorick is one of two code enforcers for the county.The problem has been brewing since the planning department sent a notice of non-compliance in April 2006.Humphrey doesn’t own the land and is at the mercy of the landowner, Sam Thomas, who said it would cost $150,000 to re-plat the property.”I just couldn’t afford it,” Thomas said. “I want to sell the land. I’m not going to re-plat and then sell it to someone who wants to do something else with the property. It doesn’t make any sense.”Part of the problem is that the county determined Humphrey’s business is a home-improvement center and not a nursery, as Humphrey believes.According to the land use code, a home improvement center is “a business that offers for sale hardware and tools, lumber, electrical, plumbing, home lawn and garden supplies, landscaping materials, plants, brick, lumber and other similar materials,” Rorick said.”A retail nursery is an establishment, which may include a greenhouse for the retail sales of trees, shrubs and plants to the general public, commonly known as a garden center. Products and services related to gardening and growing of plants and outdoor landscaping may also be included.””We disagree with them vehemently because the CC zoning says ‘nursery’ right on it and we are a nursery,” Humphrey said. “They want us to be zoned the same as Lowe’s and Wal-Mart.”A nursery would have been an allowed use on land zoned CC, Rorick said, but it still would have required a site development plan. “He [Thomas] would not have had to go through a special use approval. I don’t know if he would have needed to plat it,” Rorick said.Thomas hired surveyor Joe Alesi to try to reach an amicable solution with the county.Alesi said the current zoning is the result of an application by Arby’s, which owned the land at one time.”The county says part of the stipulation of the approval for that zone was that no building permits could be issued until a development plan was presented,” Alesi said. “Because of that stipulation, they are now imposing that requirement on Sam Thomas.”In addition to the cost, re-platting would shrink the parcel because of dedications for widening of Highway 24 and Meridian Road. The new shape and size would make it impractical to build anything but a very narrow building, Alesi said.”We asked the county to allow a temporary use until adjacent properties could be assembled and an application could be submitted,” Alesi said.”This type of assemblage would take a couple of years at least and the economic conditions would have to justify the additional cost of platting, with enough property to do a nice master plan.”We haven’t heard from the county if they would allow any temporary uses.”Rorick said he turned the matter over to Lori Seago, assistant county attorney, who told him a trial was scheduled for Sept. 15.”I just couldn’t fight city hall anymore,” Thomas said. “They’re giving a special permit to have the farmers’ market. Why wouldn’t they just give Don a special permit for six months of the year?That’s all he needs. It drives me crazy.”Humphrey said he doesn’t plan to re-open at another location this year.”It’s too late in the season to set up somewhere else,” he said. “It would have been nice if they would have let us stay through the season, but they didn’t. I don’t want to tell Falcon we won’t be back, but we’re sure going to be a lot more careful next time.””I know he wants to do the best that will benefit him,” Rorick said. “We all want to look out for our own interests, but he’s got to do the right thing.””It’s more of that county-waste-of-money stuff,” Thomas said, “They don’t have any tax revenue then they run this guy off and gripe because they don’t have any tax dollars. The county did that – not the landlord.”

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