HomeMy WebLinkAbout20130912.tiffRECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
APRIL 10, 2013
The Board of County Commissioners of Weld County, Colorado, met in regular session in full
conformity with the laws of the State of Colorado at the regular place of meeting in the Weld County
Administration Building, Greeley, Colorado, April 10, 2013, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair and on roll call the following
members were present, constituting a quorum of the members thereof:
Commissioner William F. Garcia, Chair
Commissioner Douglas Rademacher, Pro-Tem
Commissioner Sean P. Conway
Commissioner Mike Freeman
Commissioner Barbara Kirkmeyer — EXCUSED
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Susan Brown
Director of Finance and Administration, Monica Mika
MINUTES: Commissioner Freeman moved to approve the minutes of the Board of County
Commissioners meeting of April 8, 2013, as printed. Commissioner Conway seconded the motion, and
it carried unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: Doug Meyer, County resident, stated it has been five years since coordination
was first brought to Weld County. Mr. Meyers read a paper by Fred Grant entitled "Supremacy Clause
Requires Agencies to Coordinate with Local Government," and entered it as Exhibit A into the minutes.
CONSENT AGENDA: Commissioner Rademacher moved to approve the Consent Agenda as
printed. Commissioner Conway seconded the motion, and it carried unanimously.
ta COMMISSIONER COORDINATOR REPORTS: Commissioner Conway reported that the North
Front Range Metropolitan Planning Organization formally approved funding for the Johnstown/Milliken
trail for design and land acquisition, and easements were also donated. The trail should be up and
running by the beginning of the next school year and students will no longer be walking along Highway
60. Commissioner Conway thanked Janet Carter and the Public Works team.
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BIDS:
1) APPROVE BID #61300002, UTILITY VEHICLE WITH DUMP BED - DEPARTMENT OF
BUILDINGS AND GROUNDS: Trevor Jiricek, Director of General Services, reviewed staff's
recommendation to accept the low bid from local vendor Bobcat of the Rockies. He said Buildings and
Grounds is recommending that Option 2, for the snow plow, be added and Bobcat of the Rockies is still
the low bid with both these items. Commissioner Conway moved to approve said bid. The motion was
seconded by Commissioner Rademacher, and it carried unanimously.
2) PRESENT BID #B1300047, REGIONAL CRIME LAB CABLING - PHONE SERVICE
DEPARTMENT: Mr. Jiricek reviewed the bid, which will be brought back before the Board with a
recommendation for approval on April 24, 2013. In response to Commissioner Conway, Monica Mika,
Director of Administration and Finance, confirmed there was a change from what was originally planned
to newer technology.
i=ll 3) PRESENT AND EMERGENCY APPROVAL OF BID #B1300061, WATER IRRIGATION
RIGHTS FOR LEASE - FINANCE DEPARTMENT: Mr. Jiricek reviewed this bid to lease County water
rights from 3 different sources, and requested an emergency approval in order to get irrigation
underway as soon as possible. He said that staff recommended the Fulton Ditch Water be awarded to
the Fehrn Brothers at $52 per share and Lupton Bottom West to Miller Farms at $1,200 per share. No
bid was made for Lake Loveland. Commissioner Rademacher requested a work session when this
comes around again due to the low bids, feeling they should generate more revenue. In response to
Commissioner Conway, Clay Kimmi, Department of Public Works, said that the leases are advertised in
three local newspapers and notices are sent to the ditch companies and anyone who has leased in the
past. Commissioner Conway suggested the Farm Bureau, Rocky Mountain Farmer's Union and other
agricultural organizations be notified, and stated he would be talking it up in future meetings with
appropriate persons. Commissioner Rademacher moved to approve waiver of the ten day waiting
period, accept said bids and authorize the Chair to sign. The motion was seconded by Commissioner
Freeman, and it carried unanimously.
NEW BUSINESS:
1) CONSIDER 2013 COOPERATIVE LAW ENFORCEMENT ANNUAL OPERATING AND
FINANCIAL PLAN AND AUTHORIZE CHAIR TO SIGN: Alan Caldwell, Sheriff's Office, stated this is
for year two of a five-year contractual obligation with the Forest Service; this year's operating plan
includes 123 hours of service at the approved rate of $53.00 per hour, which covers costs. In response
to Commissioner Rademacher, Mr. Caldwell stated that last year was an unusual year which required
reallocation of scheduled personnel to other priorities, and that is why funds carried over.
Commissioner Rademacher said all funds available should be spent up there; Mr. Caldwell confirmed
that as their objective. Commissioner Conway brought up the issue of enforcing the new State and
Federal gun laws. After some discussion, Mr. Caldwell clarified that Weld County Sheriff's Deputies
only have the authority to enforce state law and other issues are communicated to federal agents,
adding that he would act according to the Sheriff's direction. In response to Commissioner Conway,
Steve Reams, Sheriff's Office, clarified this is a five year contract in which both entities have the option
to pull out. He said the Sheriff's Office enforces the law in this case as they would for any other entity
and the USDA understands that and cannot require them to do more. Commissioner Conway moved to
approve said operating and financial plan and authorize the Chair to sign. Commissioner Freeman
seconded the motion, and it carried unanimously.
Minutes, April 10, 2013 2013-0912
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f�l 2) CONSIDER BUDGET MODIFICATION TO 2010 CONGRESSIONAL SELECT GRANT AND
AUTHORIZE ELECTRONIC SUBMITTAL: Ron Arndt, Director of the Regional Crime Lab, Sheriff's
Office, said modifying the lab's requested equipment list caused modifications to the budget submitted
with the original grant. Commissioner Conway moved to approve said modification to grant and
authorize electronic submittal. The motion was seconded by Commissioner Freeman, and it carried
unanimously.
3) CONSIDER TEMPORARY CLOSURE OF CR 8 BETWEEN CRS 47 AND 49: Janet Carter,
Department of Public Works, reviewed the temporary road closure for a culvert replacement.
Commissioner Rademacher moved to approve said temporary road closure. Seconded by
Commissioner Conway, the motion carried unanimously.
4) CONSIDER TEMPORARY CLOSURE OF CR 17 BETWEEN CRS 26 AND 26.75: Ms. Carter
reviewed the temporary road closure for a culvert replacement. In response to Commissioner
Rademacher, Ms. Carter confirmed the location of this project. Commissioner Rademacher moved to
approve said temporary closure. Seconded by Commissioner Freeman, the motion carried
unanimously.
5) CONSIDER AGREEMENT FOR RELOCATION OF HEADGATE AND RELATED FACILITIES
AND AUTHORIZE CHAIR TO SIGN - FARMER'S INDEPENDENT DITCH COMPANY (FIDCO):
Michael Bedell, Department of Public Works, described the project as an improperly aligned
intersection at County Roads 42 and 29, west of Gilcrest; the FIDCO ditch crosses right under the
intersection and has an old structure which will be replaced with a concrete box culvert. One of the
adjacent owners has a headgate and pumping facility is in the way of the proposed construction, so the
ditch company will be reimbursed to move these downstream. In response to Commissioner
Rademacher, Mr. Bedell said that the ditch company owns the easement, the structure is just outside of
our right-of-way, and explained that the ditch company has the right to use their preferred contractor.
Commissioner Conway stated he was comfortable with the location. Mr. Bedell confirmed that the
Ditch Company's bid has been examined in detail. He also mentioned that $1,200.00 of this amount is
to compensate FIDCO for their legal fees associated with the preparation of the agreement.
Commissioner Conway clarified that the County is making the land owner whole, the costs have been
reviewed, and the site has been inspected. Commissioner Rademacher moved to approve said
agreement and authorize the Chair to sign. The motion, which was seconded by Commissioner
Freeman, carried unanimously.
6) CONSIDER VETERANS SERVICE OFFICER'S MONTHLY REPORT AND CERTIFICATION
OF PAY FOR MARCH, 2013, AND AUTHORIZE CHAIR TO SIGN: Toby Taylor, Department of
Buildings and Grounds, reported the hiring of a part-time Office Tech II. Commissioner Conway moved
to approve said report and certification of pay and authorize the Chair to sign. The motion was
seconded by Commissioner Freeman, and it carried unanimously.
7) CONSIDER PARTICIPATING ADDENDUM FOR MASTER CONTRACT FOR VOICE AND
DATA SERVICES AND AUTHORIZE CHAIR TO SIGN - QWEST COMMUNICATIONS
CORPORATION: Susan Quick, Weld County Phone Services, explained this addendum will lower the
price currently paid, as part of the State contract and the rates they get on T-1 lines. In response to
Commissioner Garcia, Ms. Quick, and Mr. Barker, explained that Century Link has assumed all of the
assets of Qwest so any agreement transfers. Monica Mika, Director of Finance and Administration,
thanked Sue Quick for her work and read an email into the record which demonstrated her dedication
Minutes, April 10, 2013 2013-0912
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to managing County resources. Commissioner Rademacher moved to approve said participating
addendum and authorize the Chair to sign. Commissioner Conway seconded the motion, and it carried
unanimously.
8) CONSIDER INTERGOVERNMENTAL AGREEMENT FOR TAX INCREMENT REVENUE
SHARING AND AUTHORIZE CHAIR TO SIGN - TOWN OF ERIE URBAN RENEWAL AUTHORITY:
Mr. Barker introduced the agreement for the purpose of improvements just off of State Highway 7,
designated as areas A and B, which gives Weld County 100 percent of the tax increment in area A and
50 percent in area B. They are giving the County above and beyond the 50 percent required by the
state. Commissioner Conway clarified the location. Mr. Barker noted that Erie used Weld County's
agreement with the Brighton Urban Renewal Authority as a template. Commissioner Freeman moved to
approve said intergovernmental agreement and authorize the Chair to sign. Seconded by
Commissioner Conway, the motion carried unanimously.
l 9) CONSIDER APPEAL REGARDING DECISION OF THE BOARD OF PUBLIC HEALTH TO
DENY VARIANCE REQUEST FOR INDIVIDUAL SEWAGE DISPOSAL SYSTEM - RANDOLPH AND
JUDY CASS, C/O STEVEN AND CHRIS SCHULTZ: Mary Evans, Department of Public Health and
Environment, presented the decision of the Board of Public Health to deny this request for a variance
on a deeper than permitted sewage system. She explained the requirements and the history of the
system's installation and the results of her inspection based on the Weld County Individual Sewage
Disposal Regulations, Environmental Health Services policy and the Weld County Code. She noted
that sections 30-9-50 and 30-9-20 of the Weld County Code state that "no variance will be issued...
where the property can accommodate a conforming septic system, or solely for economic gain." In
response to Commissioner Garcia, Ms. Evans explained that a pump would not resolve this issue. Ms.
Evans explained the code, which has been in effect since 1983, is because the upper layers of the soil
are oxygenated whereas lower layers are not, and, in addition to being ineffective, deeper systems
have a shorter lifespan. Ms. Evans noted that during the hearing the installer suggested putting vents
on the ends of the trenches, but there is no substantiating evidence that this would be effective. In
response to Commissioner Rademacher, Ms. Evans confirmed that the water table is 137 feet deep,
and is not the issue in this case. She reiterated that it clearly states in the code that a variance should
not be granted, and knowing that they were going too deep, her department should have been
contacted. In response to Commissioner Conway, Ms. Evans said discussion at the Board of Public
Health Hearing was unanimous, and the Board of Health offered to continue the hearing. In response
to Commissioner Garcia, Brad Yatabe, Assistant County Attorney, explained the applicant's right to
appeal the Board of Public Health decision and said it is the responsibility of the Commissioners to
consider whether the Board of Public Health made an appropriate or erroneous decision based upon
the facts of the case.
LBruce Johnson, Bruce Johnson and Associates, applicant's representative, explained his clients
did not do this for economic gain but were in a rush to get both systems installed before inclement
weather. He also said the lower soil is sandy and porous, while there is a layer of clay in the top three
feet.
Jerry Cass, Cass Well and Backhoe Service of Briggsdale, in the business since 1983, said he
realized it was put in too deep, in his opinion by one and a half feet, he took pictures of the system
before covering it and and he took pictures to the Health Department and was instructed to write them a
letter acknowledging liability for any issues. He said the system is over -sized and will work fine. In
response to Commissioner Conway, Mr. Johnson said they did not yet send a letter, but restated his
willingness to accept responsibility and liability for the system in case of failure or other problems and
said that none of his systems have failed in this type of soil. In response to Chair Garcia, he said the
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line coming out of the house was deeper than normal, to put the septic tank outside the fence and to
get the right amount of gravity drop and because it made the system simpler to do it deeper, adding
that a lift station would have made it a more expensive, higher maintenance system. In response to
Commissioner Conway, Mr. Johnson said that this system is to service a three -bedroom house. In
response to Commissioner Rademacher, Mr. Johnson noted that digging up the leach field would be a
great deal of work. Chris Schultz, applicant, responded to Commissioner Conway, saying this is a
residential system for up to four people's use.
Mark Taylor, the designing engineer, said there is grade available to remove some of the
overlying soil and that it would be beneficial to the system. Ms. Evans noted that scraping is
acceptable as long as surface water drains and does not pond. In response to questions from the
Commissioners, Mr. Taylor said they would have to create a lengthy drainage swell, but it could be
done, and his primary concern is a premature failure of the system due to lack of an adequate biomat,
but noted the owner is willing to accept that risk. In closing, Mr. Johnson stated that excavating was
brought up with the Board of Public Health and not deemed acceptable; their first choice would be to do
nothing and let the system work. Ms. Evans said that in her years of experience she has seen several
systems fail in one to two years because of aneorbic conditions, but confirmed none of these were in
Briggsdale. In response to Commissioner Conway, Ms. Evans explained that the possibility of sewage
surfacing and exposing pathogens is a health risk of system failure.
Commissioner Freeman noted the system seems operational and the applicants are willing to accept
the liability. Commissioner Rademacher said he feels this issue is site specific, there are no health
hazards, and the water table is deep, but added that the excavation option makes sense.
Commissioner Conway stated that common sense needs to prevail, as was stated by Randy Cass,
previous owner, and concurred with Commissioner Rademacher's comments, stating the waiver should
be granted because the applicants understand what they need to do and are responsible for replacing it
if it fails. Commissioner Rademacher stated a letter regarding liability should be submitted to the
Health Department. Mr. Barker confirmed with Ms. Evans that if the system was excavated down to 4
feet, the department would issue a permit and she would still recommend that course of action.
Commissioner Rademacher said scraping and the issuance of the permit is the most appropriate
course of action. Commissioner Freeman noted scraping would be expensive and would grant the
variance as it stands. Commissioner Conway concurred with not imposing an economic hardship to
new business owners because the applicants are moving forward fully informed of the risks of taking no
action, and there are no immediate or serious health risks. Chair Garcia stated his position that the
Board does need to impose a requirement of action and mitigation should be up to the applicant, to
increase the longevity of their own system. Commissioner Freeman moved to grant the variance.
Commissioner Conway seconded the motion, and it carried unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
Consent Agenda. No Ordinances were approved.
Minutes, April 10, 2013 2013-0912
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Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted
by the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 10:53 a.m.
BOARD OF COU TY COMMISSIONERS
WELD C k U tiJ OLORADO
ATTEST:
Weld County Clerk to the Board
k to the Board
Barbara Kirkmeyer
Minutes, April 10, 2013 2013-0912
Page 6 BC0016
SUPREMACY CLAUSE
REQUIRES AGENCIES TO
COORDINATE WITH LOCAL
GOVERNMENT
By Fred Grant.
Many believe that coordination is a
complicated procedure, but it is not. It is brought
into being by local government simply advising
the federal agencies that it is exercising the legal
authority already given to it by Congress.
Federal agency personnel will try to divert the
local government from exercising its authority
to require coordination. They do notwant to
be bound by the requirements of coordination
which Congress has placed on them through
statutory law. Coordination language - in the
statutes and implementing regulations created by
the agencies themselves, require that the federal
agencies make every legal effortto make their
plans and actions consistent with the local unit
of government's plan and actions ayd policies.
One of the arguments they use is that the
county has no authority to require coordination
and consistency because of the Supremacy Clause
in the United States Constitution. Nothing
could be further from the truth. It is because
of the Supremacy Clause that coordination
is such a strong weapon for local government.
The Supremacy Clause creates the keyto the
federal system by providingthat, federal law,
if it is constitutionally passed, is supreme over
conflicting state and local laws. That is all it
holds. The agencies, however, will sometimes
mistakenly claim, that those counties requiring
coordination are trying to. force the agency to
comply with local law. They are not.
Why , is the Supremacy Clause the post
upon which coordination stands? Because
coordination authority has been constitutionally
passed by Congress and placed into federal law.
Local government is not creating new law by
exerting coordinate status; it is not relying on
state law (except as to state agencies where state
statutes may also provide for coordination).. It
is relying on federal statutes, which are supreme
as to federally managed lands: under the very
Supremacy Clause that is used as a threat by
federal employees. So, the very simple answer to
the argument is that "We exert our coordination
authority under the federal statutes pursuant to,
not in contradiction of, the Supremacy Clause."
Article VI, Constitution of the. United
States (Supremacy Clause)
"This Constitution, and the
Laws of the, United States which
shall be made in Pursuance thereof
and all Treaties made, or which shall
be made, under the Authority of the
United States, shall be . the supreme
Law of the Lane and the judges in
every State shall be bound thereby,
any Thing in the Constitution or
Laws of any State to the Contrary
notwithstanding"
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