Map mistake cause of Painted Kettle zoning issue

MARBLETON – The mystery over how one small highway-frontage lot – used for decades as commercial property – became zoned “residential” was cleared up with an old surveyor map.

At the heart of a months-long debate was The Painted Kettle coffee and consignment shop, in a separate building on a corner of the Rob’s Roost RV and mobile home park in Marbleton. They are all zoned together as a mobile home park, a residential designation.

The Painted Kettle is in a building on an adjacent but separate lot, owned by Rob and Tammi Thomson for 18 years. The Thomsons said when they bought the property, the building was sold to them as commercial property.

Currently, the town’s zoning map designates Lot 31 and the old building as “residential” – so staff told them and son Rendy Thomson he needed a conditional use permit, approved by neighbors, to run The Painted Kettle as a commercial business.


“We bought it 18 years ago as a commercial property,” Rob Thomson told the council at several meetings and at the Marbleton Planning & Zoning Board’s June 8 meeting. “The town has given us a commercial business license to run it (for many uses) for 18 years.”

The couple wanted to know how and when the town rezoned Lot 31 as part of the residential-mobile home park, insisting the town’s map must be wrong.

“It would be the only business on highway frontage not zoned commercial or industrial,” Rob Thomson said.

Earlier this year, town staff brought up The Painted Kettle’s commercial use in a residential zone before the Marbleton Town Council, to decide if it needed a CUP. Town attorney Thayne Peterson advised the goal was consistency in town zoning regulations.

The Thomsons challenged the town’s stance and asked staff to check past records and maps for when Lot 31 became residential. Thomson found a 2003 county map showing it as commercial, asking if it could be grandfathered.

Records gap

On June 8, town clerk Shannon McCormick said she went back through stored records.

“We have it zoned as ‘mobile home park,’ formerly ‘residential’ and the building too. The 2008 map shows it as ‘mobile home park,’” she said.

Fire destroyed some town records so there are gaps, she said.

Marbleton P&Z board members John Garcia, Mike Hughes, chair Rita Thomas and Leon Covell discussed the building’s past uses.

Hughes and Thomas remembered when it was bought from El Paso Corporation and moved to its current site decades ago for use as a convenience store, grocery store and post office.

Hughes commended the Thomsons “for what you’ve done with it. … Anybody that can make a dollar on that corner is welcome to it.”

Hughes moved for Lot 31 to be zoned commercial. McCormick said the board could recommend that to the council.

Thomas said, “I’ve been here 50 years and I don’t understand why it isn’t commercial.”

McCormick said the town map shows the entire property as “mobile home park.”

“The map’s wrong,” Thomas said. “… I think there was a mistake made with the 2008 map.”

McCormick said, “If there’s a map there, it needs to be found.”

She said the board could table it and continue to investigate.

“Everyone knows it’s commercial,” said Garcia.

Covell asked, “What’s the problem with us just rezoning it?”

Peterson said the board could recommend that The Painted Kettle get a CUP or “rezone – it’s a fairly routine practice.”

There was no “conspiracy theory” against the Thomsons, he added.

Covell suggested tabling the discussion until surveyor Scott Scherbel could research his and his father’s decades worth of town maps.

Thomas agreed – “We’re going to wait until Scott Scherbel gets back and if he disagrees with us – we think it’s commercial. Let’s wait, let’s not fight about it. We’ve never questioned your business.” 

Old map

On June 13, Scherbel presented his finding to the full council – Jeff McCormick, Roger McMannis, Mayor Jim Robinson, BJ Meador and Karen Wenz.

“1986 was the first time I made a zoning map for the town,” he said. It was hand drawn with periodic updates and “clearly shows” Lot 31 as “commercial.”

In 2002, maps became digital and in 2008, zoning was added that designated the entire property as residential, mobile home park.

“There are two possibilities,” he said. “One, the town passed an ordinance or resolution? Two, we made a drafting mistake and didn’t cut (Rob’s Roost property) into two lots.”

Peterson said he would draft a resolution for the July 11 council meeting to reaffirm or amend Lot 31 as commercial, a “paper trail” to make sure the Painted Kettle is a separate, viable business.

Scherbel said, “In my opinion, Lot 31 is commercial; the rest of it was a mistake.”

Robinson asked Peterson to meet with the Thomsons to make sure the wording is correct.

“The whole point of this process and a resolution was to cut the knot and start fresh,” Peterson said.

Meador said the Thomsons were right about their past commercial zoning – “This completely flips what we were starting with, that they had to get a CUP.”

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