HomeMy WebLinkAbout20110219.tiff RECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
JANUARY 17, 2011
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
Centennial Center, Greeley, Colorado, January 17, 2011, 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 Barbara Kirkmeyer, Chair
Commissioner Sean P. Conway, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Elizabeth Strong
Director of Finance and Administration, Monica Mika
MINUTES: Commissioner Long moved to approve the minutes of the Board of County Commissioners
meeting of January 12, 2011, as printed. Commissioner Conway seconded the motion, and it carried
unanimously.
CERTIFICATION OF HEARINGS: Commissioner Garcia moved to approve the Certification of
Hearings conducted on January 11, 2011: 1) Violation Hearings; and Hearings conducted on
January 12, 2011: 1) Show Cause Hearing re: USR #1351 — James Wrenfrow, 2) USR #1756 — James
and Lori Meining, and 3) USR #1763 — Juan Soto. Commissioner Rademacher seconded the motion,
which carried unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: Doug Meyer, Weld County resident, read the first portion of an article into the record,
titled Two Court Cases Decided for Coordination, and marked Exhibit A. He indicated that he read the
second portion of the article into the record at a meeting last week.
CONSENT AGENDA: Commissioner Conway moved to approve the Consent Agenda as printed.
Commissioner Rademacher seconded the motion, and it carried unanimously.
OLD BUSINESS:
CONSIDER LAW ENFORCEMENT SERVICE AGREEMENT AND AUTHORIZE CHAIR TO SIGN —
TOWN OF NUNN (CON'T FROM 1/03/11): Commander Alan Caldwell, Weld County Sheriff's Office,
stated the agreement has been signed by the Mayor of the Town of Nunn, and the agreement is for a
total amount of $6,000.00 for the year 2011. In response to Commissioner Conway, Commander
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Caldwell indicated it has been confirmed that the Town intended the agreement to be for $500.00 per
month, as opposed to $500.00 altogether. Chair Kirkmeyer clarified the total is $6,000.00 for the year,
and if the Town meets the limit, the agreement will be amended for additional services to be provided
after the $6,000.00 is exhausted. In response to Commissioner Conway, Commander Caldwell
confirmed the agreement is for $6,000.00 for the year, as opposed to a specific amount being allotted
for each month. Commissioner Rademacher moved to approve said agreement and authorize the
Chair to sign. Seconded by Commissioner Conway, the motion carried unanimously.
NEW BUSINESS:
CONSIDER MEMORANDUM OF UNDERSTANDING TO OUTLINE WORKING PROCEDURES FOR
INFORMATION SHARING AND COLLABORATIVE EFFORTS AND AUTHORIZE CHAIR TO SIGN -
COMMUNITY DEVELOPMENT INSTITUTE (CDI) HEAD START: Judy Griego, Director, Department
of Human Services, stated this Memorandum of Understanding (MOU) was reviewed by the Board in a
"pass around" file, and it is a non-financial MOU, which is a requirement under a joint memorandum
from the Office of Head Start and the Administration on Children, Youth, and Families. She stated the
purpose of the MOU is to outline collaboration and working procedures between the Department of
Human Services and Community Development Institute (CDI) Head Start in the areas of
communication and sharing of information, ongoing collaborative efforts, and other cooperative
arrangements. She stated the term of the MOU is for Calendar Year 2011, and Bruce Barker, County
Attorney, has reviewed the agreement. Commissioner Conway stated he does not have any questions
regarding this particular item of business; however, he would like an update on the Head Start
administration. He stated the County turned the Head Start Programs over to a temporary
administrator, and there was a request for proposals to administer the Programs. Ms. Griego stated the
most recent information she has is that a provider for the Programs has not been approved, and CDI
Head Start remains the administrator. She indicated the responses to the request for proposals may
have been deemed inadequate in meeting the goals for the Head Start Programs. Responding to
Commissioner Conway, Ms. Griego stated it was previously indicated that a decision would be made
regarding the request for proposals by October, 2010; however, there have not been any further
announcements. Further responding to Commissioner Conway, Ms. Griego confirmed it is likely CDI
Head Start will administer the Programs through the end of the school year, and the administration will
be reevaluated for the next school year; however, she indicated it is not uncommon for CDI to serve as
the administrator for these types of contracts for very long periods of time. Commissioner Conway
moved to approve said Memorandum of Understanding and authorize the Chair to sign. Seconded by
Commissioner Rademacher, the motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - ADVANCED CONCRETE
DESIGN: Christopher Woodruff, Assessor, stated this a personal property account for a property
located in the Town of Windsor. He stated the leasing company is the appropriate owner, and the
property was double assessed for the year 2009. He stated the original actual value was $81,262.00,
which should be corrected to $0.00, and an abatement of taxes, in the amount of $1,902.52 should be
granted. Commissioner Long moved to approve said abatement of taxes, in the amount of $1,902.52.
Seconded by Commissioner Conway, the motion carried unanimously.
CONSIDER SECOND AMENDMENT TO LEASE AND AUTHORIZE CHAIR TO SIGN: Monica Mika,
Director of Finance and Administration, stated this amendment was presented to the Board in a work
session, and the amendment will continue the lease with the National Guard, for the use of a facility
within the City of Fort Lupton, for an additional year. She stated the terms will remain the same, and
the National Guard has been a good renter and custodian of the County's facility. Commissioner
Garcia indicated the National Guard is constructing its own facility within the City of Fort Lupton, which
appears to be near completion, and he inquired as to whether there is a clause for the National Guard
to be released from the lease if it does not need the facility for the entire year. Mr. Barker indicated he
is not certain; however, he believes there is a provision in the original lease for either party to be able to
Minutes, January 17, 2010 2010-0219
Page 2 BC0016
terminate the lease with 30 days of notice. Commissioner Rademacher moved to approve said
amendment and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried
unanimously.
CONSIDER FOURTH AMENDMENT TO AMBULANCE SERVICES AGREEMENT AND AUTHORIZE
CHAIR TO SIGN — BANNER HEALTH, DBA NORTH COLORADO MEDICAL CENTER: Dave
Bressler, Director, Weld County Paramedic Service, indicated this is the fourth year this agreement has
been extended, and it is reviewed annually. He stated there are no changes to the terms of the
agreement, and the rates will remain the same as last year. Commissioner Conway moved to approve
said amendment and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion
carried unanimously.
CONSIDER APPOINTMENTS AND REAPPOINTMENT TO BOARD OF TRUSTEES FOR NCMC:
Commissioner Conway moved to appoint Jim Cosner and David Owen to the Board of Trustees for
NCMC (North Colorado Medical Center), and to reappoint Jeffrey Carlson, all with terms to expire
January 14, 2014. Seconded by Commissioner Garcia, the motion carried unanimously.
SECOND READING OF WELD COUNTY CODE ORDINANCE #2011-1, IN THE MATTER OF
REPEALING AND REENACTING, WITH AMENDMENTS, CHAPTER 5 REVENUE AND FINANCE, OF
THE WELD COUNTY CODE: Commissioner Rademacher moved to read Ordinance #2011-1 by title
only. Seconded by Commissioner Garcia, the motion carried unanimously. Mr. Barker read the
Ordinance into the record by title, and stated there are no changes since the first reading of the
Ordinance. He stated this Ordinance will clarify that there are certain types of waste which do not
require the surcharge, and those types of waste are listed within Section 5-3-20. He indicated there
may be people in the audience who wish to speak on this matter, since he notified all of the entities
which may be affected by the proposed Ordinance of today's hearing. Ms. Mika indicated she has
copies of the documents which Mr. Barker e-mailed and mailed to notify the related agencies, marked
Exhibit A. In response to Commissioner Rademacher, Chair Kirkmeyer stated there a work session
conducted before the first reading, at which time the Board requested special notice be provided to the
operators, in addition to the normal public notice.
Bob Yost, Al Organics, stated he is a member of the Colorado Association for Recycling Board and a
liaison to the Rocky Mountain Organics Council. He thanked Mr. Barker for sending the proposed
language to him, and he indicated he is concerned about generating a list of the types of waste which
are excluded, since the situation is a moving target, and other materials and techniques will need to be
identified as they become available. He indicated several items were not included within the list that
are currently being processed for composting or energy extraction, such as biosolids, and there are
State criteria for biosolids and water treatment plant residuals, in relation to composting. Mr. Yost
indicated he is unsure as to whether the Board intended these items to be included within the list, and
there are other liquids and solids which were not included, such as post-consumer food waste, which
may have a significant impact on future composting and digestion streams. He stated food waste and
by-products from food processing and food manufacturing facilities, such as the JBS plant, are also not
included within the list. He stated there is some confusion as to whether "plant waste from the food
processing industry" refers to a manufacturing plant, such as Meadow Gold or Luprino, or a plant such
as a tomato plant. Mr. Yost indicated any carbon-based materials, which are non-hazardous and
non-toxic, have the potential to be utilized in these industries, and this is a growing industry, which
Weld County should take advantage of to provide more local job opportunities. He stated if a list is to
be generated, it should be as complete as possible; however, creating a list is an arduous task;
therefore, he suggested language be added to update the list and also provide a protocol for evaluation
and acceptance of new materials. He proposed the following language be added to the Ordinance:
"No surcharge shall be collected for materials received at a composting, digester, or energy production
facility whose primary purpose is processing, reclaiming, energy extraction, or recycling and
Minutes, January 17, 2010 2010-0219
Page 3 BC0016
redistribution, whose operational plan does not allow for on-site disposal or impoundment of materials
they receive, and whose closure plan and related financial assurance instrument provide for removal of
all materials received during the operation of the facility" Mr. Yost indicated the language may need to
be improved; however, language similar to this is recommended. He stated the main issue is his
company is not considered a disposal facility, although it is permitted under the solid waste authority of
the Colorado Department of Public Health and Environment, which is the situation with numerous other
facilities as well. He stated the mission of these facilities is to remanufacture and redistribute, which is
a gray area. Mr. Yost indicated he understands the reasoning of the proposed Ordinance; however, he
wants to be proactive in helping to define the Ordinance, to make it as easy as possible to administer.
Commissioner Conway inquired as to whether Mr. Yost is suggesting the language he proposed to be
in addition to the existing language in the Ordinance, or to replace some of the existing language.
Mr. Yost proposed inserting the language in addition to the list; however, it could replace the list as well.
In response to Commissioner Conway, Mr. Yost indicated he would prefer to replace the third
paragraph, under Section 5-3-20, with the language he proposed. Further responding to Commissioner
Conway, Mr. Yost confirmed he is concerned that the list does not include all the current processes and
that the Ordinance will have to address new processes as they evolve, and he stated there is a lot of
pressure on plants to find beneficial uses for by-products, as opposed to disposal. In response to Chair
Kirkmeyer, Mr. Yost submitted a copy of the proposed language into the record, marked Exhibit B.
In response to Commissioner Rademacher, Trevor Jiricek, Director of Environmental Health,
Department of Public Health and Environment, stated Mr. Yost, on behalf of all the composters, is
proposing the surcharge does not apply to the composting process; however, his interpretation of what
was determined by the Board in the work session is that the surcharge will not apply to the waste items
in the list, yet it will apply to other wastes. He stated accepting Mr. Yost's proposed language would be
a departure from the direction the Board gave staff in its work session.
Troy Swain, Department of Public Health and Environment, stated when staff drafted the proposed
language, it focused on the type of wastes and uniformity within each waste class. He stated the
reason the green wastes were addressed in this Ordinance is because there are composting facilities
which are of a lower class, for example Class III facilities, which bring in yard and green wastes, and
industry representatives indicated concerns about paying surcharges on the same type of wastes that
could be taken at a Class III facility, which would not be subject to the surcharge. He stated the
language "separated at a centralized facility"was included to cover composting facilities which are co-
located with landfills, to allow the green wastes to be accepted, segregated, and composted, as part of
the landfill, as well as if there is a transfer station separating out green waste, or a "stand alone" green
waste facility. Mr. Swain stated agricultural waste has not traditionally been considered solid waste;
however, the State expanded its composting regulations to include on-farm composting, and as staff
was attending meetings to determine how to implement the change, it was discovered that animal
operations were being required to have financial assurance for manure, to ensure it is disposed of
properly; however, the operations are already responsible for this. He stated staff felt it was important
to define and exclude agricultural wastes, regardless of where the wastes are transported, which is
often greatly determined by costs, and many of the green wastes do not go to the Class I composting
facilities or landfills due to the fee and charges associated with those facilities. He indicated the
Ordinance also addresses Class I versus Class II wastes for the oil and gas industry, since there were
a lot of Class II wells which were purposely selecting not to obtain certificates of designation to
commercially dispose of waste, and there was one (1) Class I facility operating as a Class II facility.
Mr. Swain indicated he does not believe the definition should be expanded and waste has an impact
whether it is buried in a landfill, or treated and processed into energy or compost, and defining exempt
facilities is more difficult than defining waste streams. He inquired as to whether incineration to energy
should be considered disposal, and he stated landfills generate methane gas and there are gas
recovery projects occurring within some landfills. He stated there has been recent legislation in the
State of Florida excluding the disposal of yard waste in landfills, and there was also a law written which
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Page 4 BC0016
indicated that utilizing a landfill which participates in gas recovery is considered to be recycling, which
expanded the definitions of reuse, beneficial use, and recycling, Mr. Swain recommended avoiding
applying terms and defining the facilities, and instead he recommended providing uniformity in the
types of wastes across all facilities and letting the market determine where the wastes go.
Commissioner Conway indicated there may still be impacts with companies which convert wastes into
energy production; however, he is unsure as to whether the impacts are equal to the impacts of
landfills. Mr. Swain stated there is an ongoing monitoring and enclosure process with buried waste
which extends far beyond a composting facility, which is covered by the financial assurance for the
facility, which would vary in type and amount, according to the facility. He stated there are
transportation and oversight impacts to the County, as well as groundwater and gas monitoring.
Responding to Commissioner Conway, Mr. Swain confirmed the costs of monitoring a landfill versus a
recycling facility are similar for the life of the facility; however, there are some carryover expenses after
a landfill closes. He indicated the largest impact to the County is caused by the waste streams being
delivered to facilities via County roads. Commissioner Rademacher moved to approve Ordinance
#2011-1, on second reading. Commissioner Garcia seconded the motion. Commissioner Rademacher
indicated he concurs with most of the statements made by Mr. Swain; however, he wants to try to
accommodate Mr. Yost. He requested a work session before the final reading. Commissioner Garcia
concurred with Commissioner Rademacher, and he stated it is important to hear from businesses to
understand what effects the proposed Ordinance will have. Commissioner Rademacher stated the
work session will be posted on the County website and he invited Mr. Yost to attend. Chair Kirkmeyer
confirmed the Board will make sure Mr. Yost is invited to the work session. Commissioner Conway
indicated he will be voting in opposition to this Ordinance on the second reading, since he has
concerns, and he does not want to omit waste items from the list within the Ordinance. He stated this is
an evolving industry and he wants to make sure this Ordinance is correct. The motion passed four (4)
to one (1), with Commissioner Conway in opposition.
PLANNING:
CONSIDER RECORDED EXEMPTION #4443 - SHAW FAMILY, LLLP: Michelle Martin, Department
of Planning Services, stated this property is located south of and adjacent to County Road 16.5, and
east of and adjacent to County Road 3.25. She stated the applicants applied for a two (2) lot Recorded
Exemption on May 16, 2006; however, at this time, the applicants have been unable to meet any of the
conditions of the administrative review. She stated the property is encumbered by Use by Special
Review (USR) Permit #1346, and the plat for USR #1346 was recorded in year 2002, for an open-pit
sand and gravel mining operation, which Lafarge West, Inc., operates. She stated a representative
from Lafarge West, Inc., is here to talk about the status of the mining operation. Ms. Martin stated the
property is also encumbered by a floodplain, and Clay Kimmi, Department of Public Works, is here to
give a presentation regarding the matter. She stated the applicant is proposing a two (2) acre Lot A on
the southern portion of the property, and the entire property is approximately 60 acres in size, all of
which is encompassed by USR#1346. She stated USR #1346 also includes another site located north
of County Road 16.5. In response to Chair Kirkmeyer, Ms. Martin stated the property located north of
County Road 16.5 on the map she has provided has not been annexed into the Town of Frederick.
Responding to Chair Kirkmeyer, Ms. Martin confirmed the applicants have not fulfilled any of the
Conditions of Approval.
Mr. Kimmi stated this property is entirely encumbered by the Boulder Creek floodplain, and he was just
notified last Friday that a Letter of Map Revision (LOMR) needs to be approved by FEMA (the Federal
Emergency Management Agency) for all of the sand and gravel pits, in order to remain compliant with
the Federal floodplain guidelines. In response to Commissioner Rademacher, Mr. Kimmi stated it is
FEMA's mapped 100-year flood plain which is in question. In response to Chair Kirkmeyer, Mr. Kimmi
clarified Lafarge West, Inc., will need to get a LOMR approved by FEMA before a portion of the USR
site can be vacated.
Minutes, January 17, 2010 2010-0219
Page 5 BC0016
Mike Shaw, property owner, indicated this property has been in his family since he was young, and it
has been in his wife's family for longer than that. He indicated that in addition to the Recorded
Exemption, he and his wife want to obtain building permits, in order to construct their dream home and
a storage barn for farm equipment. He stated a Site Specific Development Plan and USR
Permit#1346 was approved on October 10, 2001, for an open-pit sand and gravel mining operation, for
Western Mobile, Inc., which was a subsidiary of Larfarge West, Inc., at that time. He stated the entire
USR Permit site is located on approximately 180 acres, and the intent was that three (3) lakes would be
mined; one (1) would be located south of County Road 16.5, and the other two (2) lakes would be
located on the north end of County Road 16.5. Mr. Shaw stated the work commenced on the site in the
year 2001; shortly after the USR Permit process was completed. He stated the original USR Permit
specified the south lake would be completed by June 1, 2002; the west lake would be completed by
September 1, 2002; and the north lake would be completed by April 1, 2003. He stated the mining has
been completed; however, the reclamation work is not complete and it did not commence until October,
2010, when some Russian Olive trees were removed from the property, and there has not been any
additional reclamation work completed. Mr. Shaw stated there have been two (2) extensions granted
for the USR Permit. He stated he has a good rapport with the current Land Manager for Lafarge West,
Inc., Sean Frisch, and that Mr. Frisch is trying to accomplish the completion of the reclamation, which is
not an easy task. He stated there have been periods where Lafarge West, Inc. would not communicate
with him, including the two (2) years prior to Mr. Frisch becoming involved; Lafarge West, Inc., would
only communicate by sending occasional e-mails from its attorney indicating he was in violation by
entering onto his own property. Mr. Shaw stated that he and his wife's window of opportunity to fulfill
their dreams is becoming smaller as they age. He reiterated the south lake was supposed to be
completed nine (9) years ago and he started the Recorded Exemption process in the summer of 2006,
by working with Tetratech and Rocky Mountain Consultants. He indicated the largest obstacle in his
Recorded Exemption process is Lafarge's active USR Permit, which has prevented him from moving
forward with the Recorded Exemption process, and he has been trying to work with Lafarge West, Inc.,
ever since, in order to have the south lake released from the USR Permit. Mr. Shaw stated he has
been told this can be accomplished if he takes over the USR Permit and completes the requirements of
the DRMS (Division of Reclamation, Mining, and Safety); and he has been told by others that this is not
possible. He stated that he investigated working out a deal with J2 Construction to complete the
reclamation for Lafarge West, Inc.; however, J2 Construction and Lafarge West, Inc., were unable to
reach an agreement, since Lafarge West, Inc., did not want to provide the money J2 Construction
needed to complete the project as required by the DRMS. He stated there has been no weed or
erosion control completed by Lafarge West, Inc., and there has not been any topsoil replaced.
Mr. Shaw stated the mining was completed north of County Road 16.5 in December, 2008; therefore, it
has been more than two (2) years since the mining was completed, and the only reclamation which has
been completed is some trees were planted, which subsequently withered and died. He indicated he
understands this is a difficult decision for the Board to make; however, his patience is wearing thin,
since he is 68 years old, and his window of opportunity is narrowing to construct a residence on the
property. He stated in addition to the Recorded Exemption, he would like to obtain a building permit to
construct the residence, even though the area has not been released by the DRMS or Lafarge West,
Inc. Mr. Shaw stated the residence would be accessed by a gravel road, which is already in place, and
it would be located on a two (2) acre site. He stated the site will not interfere with the reclamation work
Lafarge West, Inc., needs to complete. He indicated the residence, the Recorded Exemption, and the
barn will be at an elevation above the 40-year flood plain if construction commenced today, and the
residence would be at a higher elevation than other residences currently being constructed in the area.
Mr. Shaw stated there is residence located north of the property, in the Town of Frederick, which has
recently been constructed within the 100-year flood plain. He stated he does not want the property to
be annexed by the Towns of Frederick or Erie; he prefers his association with Weld County. He
reiterated the reclamation project was supposed to be completed in the year 2002, and he stated he
has not received correspondence of any kind concerning the permit, as to whether extensions were
granted or whether Lafarge is fulfilling the requirements of the USR. He inquired as to what the
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Page 6 BC0016
responsibility of the USR Permit is, as to whether the USR Permit is intended to protect the landowner,
and as to whether the landowner has the right to be included in County correspondence regarding the
USR Permit. Mr. Shaw stated he also wants to obtain a building permit for an equipment storage
facility. He stated he has mowed weeds with his tractor on the property, since it has not been
maintained by Lafarge West, Inc., and he has been mailed noxious weed notices from the County on
several occasions requiring him to spray the noxious weeds; therefore, he would like to be able to have
some of his equipment on the site, in order to maintain the property. He stated he plans to plant grass,
or a grass/alfalfa combination, on the banks and the grounds surrounding the lake, and he has the
water available to farm. Mr. Shaw stated he owns livestock, which is maintained off of the property,
and he is allowed to bring the livestock onto the property; however, he is not allowed to construct
fences to contain the livestock. He stated he is willing to do what is necessary to complete the
Recorded Exemption; however, he is not able to complete the Recorded Exemption process, due to the
active USR Permit. He stated he needs to move forward with his life and he has no alternative options.
Mr. Shaw stated the proposed site of the residence is on a piece of ground above the 100-year
floodplain and the site is not close to the reclamation area. He inquired as to how he can move forward
when the County and Lafarge West, Inc., cannot work together to complete a LOMR Study. He
thanked the Board for its time and consideration. Commissioner Rademacher stated he is mainly
concerned about building permits being issued for a site within a floodplain, and the State adopted a
new 500-year flood plain rule approximately one (1) month ago, which places property which was once
located within the floodplain in the floodway, and it makes construction in those areas out of the
question. In response to Commissioner Rademacher, Mr. Kimmi confirmed Lafarge West, Inc., needs
to complete a LOMR study, and he indicated the time to complete the study depends on how good the
engineering information which is submitted to FEMA is; it could be processed in a few months or it
could take up to a year. Further responding to Commissioner Rademacher, Mr. Kimmi indicated his
professional opinion is that the property in question will not be placed in the floodway based on the
State's changes, since Boulder Creek is located far off to the west of the property, and the property
may be completely removed from the floodplain, depending on the LOMR study results; however, he
cannot be certain without the engineering being complete. Commissioner Rademacher inquired as to
what the consequences of approving the requests will be to the County if the property ends up being
located within the floodway. Mr. Barker indicated his concern with approving Recorded Exemptions for
properties which may be within the floodway is that the Board would be approving the creation of lots
which will not be eligible for building permits, and he is concerned about the potential future owners of
the property, which were matters the Board recently considered in another case. Commissioner
Rademacher clarified the matter the Board previously considered occurred approximately four (4) years
ago. Mr. Shaw stated the most important issue for him and his wife is they want to construct a
residence, and he stated Ms. Martin and Mr. Kimmi have been very helpful. He indicated that
Commissioner Rademacher's parents went through a similar problem with their property. Chair
Kirkmeyer stated the problem is there is a contract in place with Lafarge West, Inc., to operate under
the USR permit; therefore, if the Board approves the Recorded Exemption, in contradiction with the
County Code, the property owners would still never manage to get a building permit approved because
the property is located in the floodplain, and the property owner cannot complete the necessary work to
be removed from the floodplain without Lafarge West, Inc., completing the work on their behalf. She
stated Lafarge West, Inc., would also have to amend its permit from the DRMS; therefore, there are a
number of items which are necessary for the property owners to be able to construct a residence, prior
to the Recorded Exemption being approved. She stated the Shaws own the property; however, they
have a lease with Lafarge West, Inc., which they may not be able to be released from. Mr. Shaw
confirmed Chair Kirkmeyer is correct regarding the lease, and he stated Lafarge West, Inc., does not
want to complete a LOMR study, which the County has requested. He stated he cannot proceed
without the County intervening by agreeing to issue a building permit with conditions of approval, and
until there is an agreement of some kind in place, this will continue for years.
Minutes, January 17, 2010 2010-0219
Page 7 BC0016
Ginny Shaw, property owner, suggested Lot A of the proposed Recorded Exemption could be moved to
an area which is a bank elevated area, which is far above the floodplain, and it is higher than any of the
surrounding houses and the railroad tracks. Mr. Shaw indicated there needs to be some accountability
for what was previously approved for the property, and there must be a potential solution to move
forward, while remaining in compliance with the Weld County Code.
Mr. Frisch stated he has been with Lafarge West, Inc., for over three (3) years, and he has been
managing this site for approximately two (2) years. He stated there was not the best working
relationship in place between Lafarge West, Inc., and the Shaws before he began managing the site;
however, a great deal of progress has been made in terms of creating an agreement as to the final
earthwork and reclamation which is required for the site. He stated Lafarge West, Inc., currently has a
reclamation bond, in the amount of $611,000.00, with the DRMS, to ensure all the required work is
completed at the site. Mr. Frisch stated one of the requirements of the reclamation bond is to ensure
that the clay liners on the two (2) northern ponds are established and certified, and Lafarge West, Inc.,
is in the final stages of correcting issues with the liners. He stated another requirement is for a slope to
be corrected on one (1) of the northern ponds, since it was initially too steep; therefore, the water has
been drained from the pond, in order to correct the slope. He stated 90 percent of the reclamation has
been completed for the southern portion of the site, and what remains is for the earth to be returned to
a native state. He stated the sloping for the southern lake has been completed and there was not a
clay liner required for this lake. Mr. Frisch stated what remains for the southern portion is some
vegetation work, such as the removal of some noxious weeds. He stated when he began managing the
site, it was a mess, and it was difficult to obtain money for a site which was not producing gravel any
longer; however, he stressed the importance of the site. He stated there is horseshoe-shaped piece of
the property located in the southern portion of the site which was determined to be a jurisdictional
wetland; therefore, after a battle with the Corps of Engineers, Lafarge West, Inc., elected to purchase
2.5 to three (3) acres of wetland credits on a nearby site, to make up for the removal of these wetlands
from the system. Mr. Frisch stated there be will some clean-up caused by wind and rain erosion on the
eastern side of the southern lake and vegetation needs to be completed before the lower portion of the
site can be released from the USR Permit. He stated Lafarge West, Inc., is leery of releasing a two (2)
acre lot, since there will be construction-related traffic on the site, and Lafarge West, Inc., has a
financial liability; however, it would be more willing to release the entire southern triangle, since it is
separated by a road and will cause much less liability concern. He stated there would still be traffic and
ways to separate and monitor the area, such as constructing a fence, would need to be determined, in
order to protect the areas where reclamation is still taking place. Mr. Frisch indicated he is willing to
discuss the possibility of the release of a larger portion of the property with the Shaws and the DRMS.
In response to Commissioner Rademacher, Mr. Frisch stated the raised area Ms. Shaw mentioned is
not a berm; it is an elevated area, which is at the final grade. Commissioner Rademacher stated that
he understands why Lafarge West, Inc., does not want to complete a LOMR study, since the studies
are expensive and time consuming, and he inquired as to whether the LOMR study is a requirement for
Lafarge West, Inc. Mr. Kimmi stated he received a letter from FEMA on Friday, which states that in
order for Weld County to remain compliant with its National Flood Insurance Program obligations, Weld
County must ensure a LOMR is obtained from FEMA. He stated Lafarge West, Inc., also contacted
FEMA and was informed the LOMR is necessary. Mr. Frisch stated Lafarge West, Inc., received a
letter from Mr. Kimmi last year which indicated a 100-year floodplain study will likely be required.
Commissioner Rademacher stated a 500-year floodplain study will probably be necessary at this point,
even though the 500-year floodplain rule will not be in effect for three (3) more years. Mr. Kimmi
concurred with Commissioner Rademacher's understanding of the 500-year floodplain situation.
Mr. Frisch stated Lafarge West, Inc., has obtained quotes for conducting a LOMR study.
Commissioner Rademacher stated the last time the Board considered a similar situation, FEMA sent a
letter indicating it would withhold all of the County's flood insurance if the County did not come into
compliance. Mr. Frisch stated the LOMR study has been budgeted for by Lafarge West, Inc., as a part
of the overall reclamation costs for this site. He stated he made sure estimates to complete all of the
Minutes, January 17, 2010 2010-0219
Page 8 BC0016
earthwork, seeding, and vegetation control were included in the budget, in addition to the cost for the
LOMR study. He indicated Lafarge West, Inc., has been trying to determine if it can complete the
DRMS requirements and have the reclamation bond released prior to having to complete the LOMR;
however, if the LOMR study is required, Lafarge West, Inc., will complete the study. Mr. Frisch stated
Lafarge West, Inc., just wanted to obtain clarification before it invested approximately $20,000.00 and
three (3) to six (6) months to complete the study; however, it seems clear now that the study will be
required. In response to Commissioner Rademacher, Mr. Kimmi confirmed it is possible another study
may not be necessary after the required information is submitted to FEMA; however, the LOMR study
will likely be necessary. Mr. Frisch stated Lafarge West, Inc., intends to complete the LOMR study;
however, it is currently working to complete the reclamation work, particularly the earthwork, in order to
have a portion of the reclamation bond released from the DRMS. He stated the slope requirements are
almost complete; however, extra top soil will need to be placed on the site and vegetation will need to
be planted. In response to Commissioner Rademacher, Mr. Frisch stated the only pond which did not
meet the sloping requirements is the one which is located furthest north; however, it was the one (1)
which was full of water; therefore, it took a little bit longer to correct. He stated the lake is drained and
the equipment is there, and it may be within just a few days from completion. He indicated there is a
new management structure at Lafarge West, Inc., which understands the importance of not ignoring
sites. Mr. Frisch indicated he would like to talk to Mr. Kimmi about whether one (1) LOMR study can be
completed for the entire region, since Lafarge West, Inc., has several other sites in the area. In
response to Chair Kirkmeyer, Mr. Frisch reiterated Lafarge West, Inc., will complete the LOMR study if
it is required. Further responding to Chair Kirkmeyer, Mr. Frisch stated Lafarge West, Inc., does not
need to amend its mining permit if the Recorded Exemption is approved; however, it will need to amend
the permit if the Shaws construct a home, to allow for a single-family residence, since there will be a
change of use. Responding to Chair Kirkmeyer, Mr. Frisch stated the lease between the Shaws and
Lafarge West, Inc., would probably need to be amended to allow for the Recorded Exemption and a
home on the property, and Lafarge Lafarge West, Inc., is unwilling to amend its DRMS permit at this
time to allow for a home, since it would likely be a faster process to simply complete the reclamation
process. He stated previous land managers have spoken to the Shaws about splitting the permit;
however, the problem with that is an amendment is still necessary for the DRMS permit. In response to
Commissioner Conway, Mr. Frisch confirmed the project is approximately 90 percent complete, and he
indicated there is still some erosion clean-up remaining and some wind mitigation would help the
vegetation to become established. He stated as soon as Lafarge West, Inc., can establish vegetation,
the reclamation should be complete; however, there is no irrigation on the site; therefore, rain is
needed. He stated there is a good vegetation base; however, it is sparse, and Lafarge West, Inc.,
plans to plant more seed this spring. Mr. Frisch stated some of the area may be able to be released
this summer if the vegetation is established; however, the northern portion will take approximately one
(1) to two (2) years to establish the vegetation. He stated Lafarge West, Inc., will also be replanting
trees for the Shaws, since the trees which were previously planted were poorly managed and did not
survive. Commissioner Rademacher indicated he would love to be able to help the Shaws; however,
the County is in a tough position regarding the FEMA rules, and he cannot see approving the Recorded
Exemption without having Lafarge West, Inc., on the same page. He indicated approving this
Recorded Exemption could lead to a situation where the County is liable for years to come. Chair
Kirkmeyer suggested that instead of denying the Recorded Exemption, the Board consider continuing
the matter for six (6) months or one (1) year, to allow the Shaws to continue working on the matter, and
Lafarge West, Inc., may complete its reclamation in the southern portion of the site within that time.
Commissioner Rademacher indicated he would support a continuation. Commissioner Garcia thanked
Chair Kirkmeyer for the suggestion of continuing the matter, and he stated that he remembers the
situation approximately four (4) years ago where FEMA indicated it could challenge the flood insurance
throughout the County; therefore, the Board cannot endanger all of the County's residents by making a
decision, even if the Board knows the decision is the right one (1) to make. He stated he is not willing
to deny the Recorded Exemption at this time; however, all the pieces are not in place to approve the
Recorded Exemption. Commissioner Conway indicated he would like Lafarge to complete the
Minutes, January 17, 2010 2010-0219
Page 9 BC0016
reclamation on the southern portion of the site as soon as possible, in order to allow the Shaws to move
forward with the construction of their dream home. Commissioner Rademacher moved to continue the
matter to July 13, 2011, at 9:00 a.m. Seconded by Commissioner Conway, the motion carried
unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
Consent Agenda. Ordinance #2011-1 was approved on second reading.
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 10:32 a.m.
BOARD OF COUNTY COMMISSIONERS
W D COUNTY, CO RADO
ATTEST: ra �D.t r, � —
rbara Kirkmeye , Chair
Weld County Clerk h
1 1861 4i-_m0 112
Sean P nway, Pro-Tem
BY:
Deputy Clerk to they iMl lliam F. `�
APP' • A �•* FORM: �
David �. Long �l
ounty Attorney II��
Douglas Rader macher
Minutes, January 17, 2010 2010-0219
Page 10 BC0016
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