HomeMy WebLinkAbout20110822.tiff RECORD OF PROCEEDINGS
MINUTES
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
MARCH 28, 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, March 28, 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 — EXCUSED
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 Rademacher moved to approve the minutes of the Board of County
Commissioners meeting of March 23, 2011, as printed. Commissioner Garcia seconded the motion,
and it carried unanimously.
CERTIFICATION OF HEARINGS: Commissioner Garcia moved to approve the Certification of
Hearings conducted on March 23, 2011, as follows: 1) USR #1768 - Jack and Heddy Cary; and
2) USR #1770 - H. Gordon Johnson, c/o Greg Johnson. Commissioner Conway seconded the motion,
which carried unanimously.
AMENDMENTS TO AGENDA: Commissioner Garcia moved to add New Item of Business
#6) Consider Authorizing Treasurer to Execute Assignments of County Held Tax Liens Less than
$10,000.00 in Value Sold for the Full Value of Taxes, Interest, and Fees Due [2011-0836], and to
renumber accordingly. Commissioner Rademacher seconded the motion, which carried unanimously.
(Clerk's Note: This motion was made after New Item of Business #5 was concluded; at approximately
8:33 a.m.)
PUBLIC INPUT: Doug Meyer, Weld County resident, submitted an article into the record, marked
Exhibit A.
CONSENT AGENDA: Commissioner Conway moved to approve the Consent Agenda as printed.
Commissioner Rademacher seconded the motion, and it carried unanimously.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
'1 6 I I Minutes, March 28, 2011 2011-0822
1 Page 1 BC0016
BIDS:
APPROVE BID #61100052, MOSQUITO SURVEILLANCE/CONTROL - DEPARTMENT OF PUBLIC
HEALTH AND ENVIRONMENT (CON'T FROM 3/21/11): Monica Mika, Director of Finance and
Administration, requested this bid approval be continued for another week, to April 4, 2011.
Commissioner Garcia stated that Dr. Mark Wallace, M.D., Director of Public Health and Environment,
has indicated he will schedule a work session regarding this matter. Commissioner Conway moved to
continue this matter to April 4, 2011, at 9:00 a.m. Seconded by Commissioner Rademacher, the
motion carried unanimously. (Clerk's Note: The motion was made to continue the matter to April 4,
2011; however, the aforementioned work session for this item of business did not occur until that date;
therefore, the matter will be considered at the following Board meeting, on April 6, 2011.)
APPROVE BID #B1100028, GEOTECHNICAL TESTING SERVICES - DEPARTMENT OF PUBLIC
WORKS: Ms. Mika stated seven (7) vendors submitted bids and staff recommends approval of the low
bid. Commissioner Rademacher moved to approve the low bid from Ground Engineering Consultants,
in the amount of $16,949.00, based on staff's recommendation. Seconded by Commissioner Garcia,
the motion carried unanimously.
APPROVE BID #B1100041, GIESERT GRAVEL PIT SLURRY WALL DESIGN AND CONSTRUCTION
PROJECT - DEPARTMENT OF PUBLIC WORKS: Clay Kimmi, Department of Public Works, stated
this is a project to construct a slurry wall for the Giesert Gravel Pit, which is located near the
Department of Public Works building. He stated the slurry wall is being proposed in order to reduce the
long term cost for pumping the pits, which costs approximately $300,000.00 per year. He stated once
the slurry wall is complete, the County will be able to sell the pits to a local water conservancy district
which has expressed interest in purchasing the pits, and the County will be able to recover its costs for
the slurry wall construction. Commissioner Conway stated there is a great difference between the high
and low bid amounts, and he inquired as to whether the reason for the difference may be attributed to
the local vendor having experience working with the County and having a better understanding of the
actual costs. Mr. Kimmi confirmed the low bidder has constructed many slurry walls along the Poudre
River basin, as well as along the Saint Vrain and South Platte Rivers; therefore, the firm is very familiar
with geology in the area. He stated the high bidder is a firm from Pennsylvania, which has not
completed work in this area. Commissioner Garcia moved to approve the low bid from Hall Irwin
Corporation, in an amount not to exceed $2,795,412.00, based on staff's recommendation.
Commissioner Conway seconded the motion, and he indicated he is glad this bid is being awarded to a
local vendor. Ms. Mika stated this bid was initially presented to the Board on March 14, 2011. There
being no further discussion, the motion carried unanimously.
NEW BUSINESS:
CONSIDER EQUIPMENT LEASE AND AUTHORIZE CHAIR TO SIGN — POWER EQUIPMENT
COMPANY: In response to Commissioner Garcia, Pat Persichino, Director, Department of Public
Works, stated the piece of equipment, a 2008 Bomag Recycler, is a Road Reclaimer. Commissioner
Garcia moved to approve said lease and authorize the Chair to sign. Seconded by Commissioner
Rademacher, the motion carried unanimously.
CONSIDER LEASE AGREEMENT FOR FULTON DITCH WATER RIGHTS AND AUTHORIZE CHAIR
TO SIGN - PETROCCO FARMS, C/O DAVID PETROCCO, SR.: Mr. Kimmi stated this is a lease
agreement for an unused portion of the County's Fulton Ditch water. He stated the County has 28
shares of Fulton Ditch water it is not using for any purpose, and the water is leased out each year, in
order to show continued use, at the assessment rate, which is $42.00 per share, for a total amount of
$1,176.00. Commissioner Conway inquired as to whether this water is available to other people to
lease. Mr. Kimmi confirmed the water is available to others; however, David Petrocco, Sr., was the first
person to indicate he would like to lease the water rights. In response to Commissioner Conway,
Minutes, March 28, 2011 2011-0822
Page 2 BC0016
Mr. Kimmi stated the water rights engineer notifies the water and the ditch company that the water is
available to be leased. Further responding to Commissioner Conway, Mr. Kimmi indicated he is unsure
as to exactly how the notification occurs. In response to Commissioner Rademacher, Mr. Kimmi stated
each share is 49 acre-feet of consumptive use.
In response to Commissioner Conway, Bruce Barker, County Attorney, stated the notification process is
taken care of by the water rights engineer, and the County's goals are to make certain the water is
being used, to ensure the County does not lose its rights to the water, which is paramount, and to cover
the out of pocket cost for the County. He indicated approximately four (4) or five (5) years ago the
County tried to obtain a higher rate, and nobody was willing to pay more than the amount needed to
cover the County's costs. Chair Kirkmeyer stated she is unsure as to the exact process followed by the
Fulton Ditch Company; however, the Farmers Reservoir and Irrigation Company (FRICO) provides a
list of what is available at its office and all the shareholders can review it. She stated FRICO also
typically discussed what was available at the annual meetings. Commissioner Conway stated he just
wanted to make sure there is a transparent process and proper disclosure. Commissioner
Rademacher moved to approve said agreement and authorize the Chair to sign. Seconded by
Commissioner Conway, the motion carried unanimously.
CONSIDER LEASE AGREEMENT FOR LUPTON BOTTOM WEST LATERAL DITCH WATER
RIGHTS AND AUTHORIZE CHAIR TO SIGN — JOE MILLER: Mr. Kimmi stated this is a similar lease
for unused water rights, and Joe Miller has leased these rights from the County for the last couple of
years. He stated Mr. Miller has agreed to pay $1,200 per share, for a total amount of $2,400.00. He
stated Mr. Miller has been the only person who has requested to lease this water, and each share is
worth 110 acre-feet. Commissioner Garcia moved to approve said agreement and authorize the Chair
to sign. Seconded by Commissioner Rademacher, the motion carried unanimously.
CONSIDER RENEWAL APPLICATION FOR HOTEL AND RESTAURANT LIQUOR LICENSE AND
AUTHORIZE CHAIR TO SIGN — RJML, LLC, DBA LA MARAVILLA: Dan Joseph, Department of Public
Health and Environment, stated he initially recommended denial of this liquor license; however, staff
met with Rueben Rodriguez, applicant, on March 17, 2011, and worked out the details. He stated the
State sent Mr. Rodriguez a letter, dated March 15, 2011, delineating the items which are out of
compliance at the establishment, some of which have been ongoing issues for years. He stated
Mr. Rodriquez has had a State coach come to the facility to walk through instructions on how the facility
can be brought into compliance and he has paid the penalty assessed by the State. Mr. Joseph stated
Mr. Rodriguez has also contracted with an operator of the system; therefore, he recommends granting
temporary approval and reviewing the matter in 60 days, since the State's letter indicated 30 and
60-day deadlines for numerous items to come into compliance, and at the end of 60 days the
Department will know if Mr. Rodriguez has submitted all of the necessary paperwork to come into
compliance with the State.
Deputy Julie Mercer, Sheriff's Office, stated nothing was out of compliance with the facility as to the
liquor inspection; however, Mr. Rodriguez needs to address the concerns of the Department of Public
Health and Environment. In response to Chair Kirkmeyer, Mr. Barker stated the Board does not have
the ability to issue a temporary permit. He stated this issue about the water arose approximately
three (3) or four (4) years ago, and Mr. Rodriguez can explain the systems he has installed and worked
on with the State over the years; however, the resolution which was reached was providing bottled
water for drinking purposes and notifying people they should not drink the tap water at the
establishment. He stated this solution may be acceptable to the Department of Public Health and
Environment; it has been in the past. He suggested a Condition of Approval be added which indicates
the establishment must come into compliance with the State within 60 days, as a part of the liquor
license renewal. Chair Kirkmeyer stated the Resolution indicates, "any violations thereof shall be cause
for revocation of the license." In response to Chair Kirkmeyer, Mr. Barker confirmed the language
Minutes, March 28, 2011 2011-0822
Page 3 BC0016
refers to violations of the Conditions of Approval. Chair Kirkmeyer stated Condition of Approval D
addresses the Colorado Primary Drinking Water Regulations, and she inquired as to whether the
Condition of Approval addresses the concerns of the Department of Public Works. Mr. Joseph
confirmed Condition of Approval D adequately addresses his concerns.
Mark Thomas, Department of Public Health and Environment, stated since the timeframe Mr. Barker
was referring to, La Maravilla has implemented a public drinking water system; therefore, the bottled
water is not a viable option. He clarified the bottled water must be available if the system is not
available; however, the State indicates the water treatment must be continuous at all times. He clarified
the bottled water is adequate for situations where equipment has broken down; however, it is not a
permanent solution as alternative operating procedures. Mr. Joseph clarified Mr. Rodriguez has a
water system in place; he simply needs design approval to come into compliance. He stated a
stipulation can be included with the liquor license, or the matter can be brought back before the Board
through the food regulation process, if the system does not come into compliance. He stated certain
items will not be able to be immediately corrected; for example, nitrate testing will need to be completed
over time to monitor whether the levels are decreasing. Mr. Joseph stated it will also take some time if
it is determined a treatment system will need to be installed to correct the nitrate levels. In response to
Chair Kirkmeyer, Mr. Joseph recommended approval of the application. He reiterated he can bring the
matter back before the Board through the food portion of the licensing, if it is necessary. In response to
Commissioner Conway, Mr. Joseph clarified Mr. Rodriguez installed a water system; however, he has
not obtained approval from the State for the system which was installed. He stated Mr. Rodriguez
installed a chlorination system approximately five (5) to seven (7) years ago; therefore, there may be
additional system requirements to what the regulations were at the time the system was installed.
Rueben Rodriguez, applicant, stated he is working with the State coaching for the water quality system,
and a coach came to the establishment and spent three (3) hours with him at the site going through the
water chlorination system. He stated the coach did not indicate any serious concerns, and the coach
indicated he will come back to teach him more about the water system. He stated he has learned more
in the last week about the system than in all the years he has had the system installed, and he is going
to take classes to become a certified water inspector. In response to Chair Kirkmeyer, Mr. Rodriguez
indicated he has reviewed stipulations for renewal, and the only issue he is still working to resolve is the
water system. Chair Kirkmeyer provided the opportunity for public testimony; however, none was
given. Commissioner Garcia moved to approve said application, with the Stipulated Conditions for
renewal indicated in the proposed Resolution, and authorize the Chair to sign. Seconded by
Commissioner Conway, the motion carried unanimously.
CONSIDER AUTHORIZING ASSESSOR TO REVIEW PETITIONS FOR ABATEMENT OR REFUND
OF TAXES WHICH ARE $10,000 OR LESS AND TO SETTLE SAME: Christopher Woodruff,
Assessor, stated there was a work session conducted to discuss this matter with the Board in January,
2011. He stated the law was changed last year to raise the amount which can be negotiated between
the Assessor and the petitioners from $1,000.00, to $10,000.00; therefore, if an agreement is reached,
the Assessor can process the petition without conducting a hearing and submitting it to the property tax
administrator in Denver. He stated if the amount is less than $10,000.00 and there is a dispute, the
matter will still be reviewed by the Board, and any petitions for abatements or refunds for more than
$10,000.00 will still be reviewed by the Board. Mr. Barker stated he was confused and the Board is
viewing the wrong Resolution for this matter; the Resolution the Board is viewing is to authorize the
Treasurer to execute assignments of County held Tax Liens less than $10,000.00 in value sold for the
full value of taxes, interest, and fees due, and the Resolution for this matter will subsequently be drafted
to reflect what was approved. Commissioner Conway moved to approve the Resolution authorizing the
Assessor to review Petitions for Abatement or Refund of Taxes which are $10,000.00 or less and to
settle the same. Seconded by Commissioner Rademacher, the motion carried unanimously.
Minutes, March 28, 2011 2011-0822
Page 4 BC0016
CONSIDER AUTHORIZING TREASURER TO EXECUTE ASSIGNMENTS OF COUNTY HELD TAX
LIENS LESS THAN $10,000 IN VALUE SOLD FOR THE FULL VALUE OF TAXES, INTEREST, AND
FEES DUE: John Lefebvre, Treasurer, stated there has been a confluence of a large number of
properties which went to the Tax Sale and the lowest interest rates in years, which resulted in a surplus
of Tax Liens. He stated there were 1,100 Tax Liens two (2) years ago and another 500 Tax Liens after
the County-held endorsements, totaling approximately 1,600 Tax Liens, mostly consisting of vacant
lots. He stated people apply to purchase the leftover Tax Liens, usually in small quantities, between
one (1) and 10, and statute allows the Treasurer to ask the Board for permission to authorize the
Treasurer's Office to execute the assignments of County held Tax Liens less than $10,000.00 in value,
which are sold for the full value of taxes, interest, and fees due. He stated the Treasurer's Office sells
Tax Liens in the normal course of business; however, in previous years, there were not any unsold Tax
Liens to deal with, and it seems unnecessary to have to present all of the Tax Liens to the Board. He
reiterated this will only apply to Tax Liens which are sold for the full value; therefore, if the Treasurer's
Office is not selling a Tax Lien for its full value, or the Tax Lien is more than $10,000.00, the Tax Liens
will be presented to the Board for review and approval. In response to Commissioner Conway,
Mr. Lefebvre clarified he is not requesting to bundle the Tax Liens, and he reiterated that he is
requesting he be allowed to process the approximately 1,000 to 1,500 Tax Liens remaining, without
requiring the Board's approval, as long as each Tax Lien is less than $10,000.00. In response to
Commissioner Conway, Mr. Lefebvre indicated people can purchase any number of Tax Liens they
choose, and this Resolution will not change that, other than the Treasurer's Office will now be able to
process those without the Board's approval, as long as each Tax Lien is less than $10,000.00.
Commissioner Garcia stated the Board has reviewed many of these Tax Liens, many of which are for
mobile homes and are small amounts, and this Resolution will provide the Treasurer with the authority
to approve and process these Tax Liens, which he thinks is a great idea. Commissioner Garcia
commended Mr. Lefebvre for finding people who are willing to purchase the mobile home Tax Liens,
and Mr. Woodruff for his work negotiating the petitions for tax abatements or refunds for the taxpayers,
and he moved to approve the Resolution. Commissioner Conway seconded motion, which carried
unanimously.
CONSIDER REAPPOINTMENTS TO CHILD PROTECTION CITIZEN REVIEW PANEL: Commissioner
Rademacher moved to reappoint and reassign John Cordova on the Child Protection Citizen Review
Panel, to replace Stacey Campbell, as a regular member, and to reappoint Colleen Anthony as an
alternate member, both with terms to expire March 4, 2014. Seconded by Commissioner Garcia, the
motion carried unanimously.
PLANNING:
CONSIDER ZPMH #2608 — JOHN AND BETTY MERRITT: Wendi Inloes, Department of Planning
Services, stated this is an application for a Zoning Permit for a Mobile Home to be used as a principal
dwelling, and the property is located south of, and adjacent to, State Highway 60 and west of County
Road 3. She stated the parcel is two (2) acres in size, and it is being presented to the Board because
there are more than 30 percent of the surrounding property owners in opposition to the application.
Chair Kirkmeyer explained to the applicants that there are just four (4) of the five (5) County
Commissioners present today and the approval, or denial, of any motion requires a majority vote;
therefore, three (3) of the Commissioners present will need to vote in favor of the application, in order
for it to be approved. She stated if there is a tie, the absent Commissioner will review the record and
make a decision on record at a later date, to break the tie. She stated the applicants may request a
continuance until there is a full Board present.
John Merritt, applicant, stated he will continue today and leave the matter in the present
Commissioners' hands. Ms. Inloes stated approximately one-quarter mile to the east of the property is
a five (5) lot subdivision, Garcia PUD (Planned Unit Development); approximately one-half mile to the
Minutes, March 28, 2011 2011-0822
Page 5 BC0016
east of the property, there is a nine (9) lot subdivision, Las Hacienda; and there is a proposed five (5)
lot PUD subdivision directly to the east of the property, Meadows Estates. She stated the surrounding
area ranges from PUD subdivisions to agricultural farms, and she recommended approval of the
application, as all the requirements set forth in Section 23-4-200 of the Weld County Code have been
met; however, the applicants will need to apply for a new septic permit, since the previous permit has
expired. She stated there are other structures on the site which are in violation, and Peggy Gregory,
Department of Planning Services will explain those. In response to Chair Kirkmeyer, Ms. Inloes stated
there are two (2) cargo containers, containing building materials for siding the mobile home, and
several small sheds on the property. She indicated the applicants applied for a permit to construct a
house approximately two (2) years ago; however, they cannot afford the construction cost.
Peggy Gregory, Department of Planning Services, stated there are two (2) cargo containers on the site
which need to be permitted, and there are two (2) small structures on the site, for which staff has not
been able to verify whether permits are needed. She indicated if the structures are 120-square feet or
less, permits are not necessary; however, staff has not measured the structures. She stated the permit
application has been submitted for the mobile home; however, the permit has not been issued. In
response to Chair Kirkmeyer, Ms. Gregory confirmed the only confirmed violation on the site is the
two (2) cargo containers. In response to Commissioner Garcia, Ms. Gregory stated the mobile home
was manufactured in the year 1978.
Mr. Merritt submitted 13 photographs into the record, marked Exhibit C. He stated he wants to make
sure the property values in the area remain high, and he will not do anything to decrease the value of
his property or the surrounding properties. He stated he contacted the Weld County Building
Department to make sure the mobile home would be compliant with all the requirements of the Code.
He stated he originally planned to construct a house, and he paid $4,500.00 for a building permit;
however, he had to close his building supply business last year, and he had to figure out a new plan.
Mr. Merritt stated he would like the mobile home to look like a conventional home; therefore, he will side
the mobile home in log and construct a conventional roof. He stated he has been a contractor in the
construction business for more than 30 years and he will make the mobile home look nice; it will not be
an eyesore in any way, since he has access to the highest quality building materials available. He
stated he will be installing new windows as well. Mr. Merritt stated the photographs he submitted,
marked Exhibit C, show the surrounding homes in the area, and it would be a different situation if his
property was amongst a mass of custom homes. He stated he will upgrade the appearance of the
mobile home and make it attractive. He stated he intends to use log siding and construct a roof on the
mobile home exactly the same as the improvements he made to one (1) of the sheds on the property,
and a photograph of the shed can be found within Exhibit C. He submitted two (2) drawings into the
record, marked Exhibits D and E, and the first drawing, Exhibit D, depicts the mobile home as it is, and
the second drawing, Exhibit E, depicts the mobile home as it will look when the upgrades are complete.
Mr. Merritt stated there are temporary storage pods on the property and the pods will be removed when
he and his wife are able to move into the home. He stated he also wanted to construct a home;
however, he has not had the opportunity, due to the economy causing his business to fail and his
inability to obtain a loan.
Betty Merritt, applicant, stated she and her husband originally purchased the property because there
were no covenants. She stated there is a pig farm located to the west of the property and a dog farm
on another side of the property. She stated she and her husband are not millionaires and the home
they were going to construct was only approximately 1,000 square feet in size. Ms. Merritt stated she
and her husband have been living in an eight (8) by 26-foot RV (recreational vehicle) for approximately
a year and a half, and they completed all the necessary permit applications; however, due to the
business failing, and health issues which have prevented her from working, they have not been able to
commence construction of the house. She stated she and her husband really want to move into the
mobile home, and her husband placed log siding on the inside of the mobile home, painted the
Minutes, March 28, 2011 2011-0822
Page 6 BC0016
bathrooms, is working on remodeling the kitchen, and installed a sliding glass door. Ms. Merritt stated
they plan to make the mobile home look nice, and they contacted the Department of Planning Services,
in order to proceed legally. Mr. Merritt stated they had purchased a bunch of building material when
they were planning to construct the house, such as windows, doors, and flooring; therefore, he is using
a lot of those materials to improve the mobile home. In response to Commissioner Conway, Mr. Merritt
stated he has owned the property for approximately two (2) years.
Mary Schrage, adjacent property owner, stated she owns the Meadows Estates subdivision, as well as
a property on the other side of the applicant. She stated she empathizes with the applicants; however,
there are houses worth $500,000 in the immediate area, and an older mobile home will cause a serious
property devaluation for the homes in the area, regardless of upgrades to it. She stated the hog farm
has not been used for that purpose for approximately 10 years; antique automobiles are being stored
on the property. Ms. Schrage stated the properties on two (2) sides of the applicants are being
subdivided, and the lots on her property will contain homes in the $250,000.00 range. She stated she
has been working with the County for five (5) years to create the subdivision, and she is getting ready
to submit the final plat. She stated State Highway 60 is the dividing line with Larimer County, and there
are three (3) beautiful homes on Larimer County's side of the highway, directly across the street from
the applicants. She stated she does not foresee the applicants improving the property beyond placing
a mobile home with siding on the property, which will affect up to 15 adjacent properties which are
worth several hundred thousand. In response to Commissioner Rademacher, Ms. Schrage stated she
did not sell the applicants their property; Anthony Sanchez sold the applicants their property.
Commissioner Conway stated the applicants submitted a number of photographs depicting existing
mobile homes in the area. Ms. Schrage confirmed there are two (2) mobile homes on the Larimer
County side within approximately one (1) mile of the applicants' property. In response to Chair
Kirkmeyer, Ms. Schrage stated she has lived in the area for approximately 10 years, and her husband
has lived in the area for 43 years.
Brad Baird, neighbor of Mary and Ted Schrage, stated he empathizes with the applicants, since
business is tough currently. He stated he had his own issues over the last few years; however, the
proposed mobile home is not consistent with the other development which has occurred in the area
over the last 10 years. He stated a multi-million dollar home will be looking directly at a mobile home if
this application is approved, and there are several other homes in the area worth more than
$500,000.00 in the Garcia PUD. Mr. Baird stated the man who owns the farm house on the former dog
farm site has spent $150,000.00 renovating the house. He stated there is a mobile home on the former
pig farm property, which has been there for at least 20 years, and there is one (1) other mobile home in
the area. He indicated Mr. and Mrs. Schrage have spent $100,000.00 on the PUD process, and a lot
with a single-wide 35 year old mobile home does not belong in the area. Mr. Baird stated he might feel
differently about the situation if the applicants were proposing a new manufactured home. He stated he
bought his property from Mr. Sanchez as well, and his property is deed-restricted, requiring a minimum
of 2,500 square-feet for the residence, and not allowing any manufactured housing. He stated
Mr. Sanchez assured him that all the subsequent lots would have the same deed restrictions when he
spent $125,000.00 to purchase his lot, and now he has spent almost $500,000.00 constructing his
home. He stated if the Board approves this application, it will cause hundreds of thousands of dollars
worth of monetary damage to Mr. and Mrs. Schrage.
Jenni Bukowski, property owner, stated she lives directly across the street from the proposed mobile
home site, and she and her husband own 40 acres.
Paul Bukowski, property owner, submitted 12 photographs of some of the surrounding homes, including
their home, into the record, marked Exhibit G. He stated Wayne and Heidi Forbes own the property
which was previously a dog farm, and they have completely remodeled the home to show quality. He
stated he is one (1) of the residents which have lived in the area the longest; he has been there
Minutes, March 28, 2011 2011-0822
Page 7 BC0016
approximately 20 years. Mr. Bukowski stated there has been a resurgence of people trying to construct
new homes and improve existing homes in the area. He stated there is an old school house on County
Road 11 and State Highway 60 which people have spent a great deal of time refurbishing, and it looks
incredible. He indicated a single-wide mobile home is not appropriate for the neighborhood, and all the
surrounding property values will be adversely affected. Mr. Bukowski requested the Board consider the
overall neighborhood, and he stated the only mobile homes in the area were placed on the properties
before he moved into the area 20 years ago. He stated some of the photographs staff provided are of
the hog farm, which has been out of operation for at least 10 years. Ms. Bukowski stated the
photographs her husband submitted were taken yesterday. Mr. Bukowski stated all of the homes in the
photographs are located within an eighth of a mile of the applicants' property. In response to Chair
Kirkmeyer, Mr. Bukowski clarified the last three (3) photographs he submitted are photographs of the
applicants' property. In response to Commissioner Garcia, Mr. Bukowski stated prior to Mr. and
Mrs. Merritt purchasing their property, it was vacant. Ms. Bukowski clarified the applicants' property
was previously farmland. Further responding to Commissioner Garcia, Ms. Bukowski stated she and
her husband have lived in the area for 20 years.
Tom Kosepki, surrounding property owner, stated he and his wife purchased 50 acres approximately
15 years ago, and they purchased 30 adjacent acres approximately 10 years ago, where they
constructed a house. He stated he and his wife do not have pensions, although they receive social
security, and they invested their savings into the 80 acres of irrigated farmland they purchased and
constructing their house, rather than stocks and bonds. He stated property values have decreased due
to the economy, and thousands of acres of property around the City of Loveland and Town of Windsor
were recently auctioned off for low amounts. Mr. Kosepki stated allowing the mobile home to be placed
on the applicants' property will further lower the property values in the area. He stated he feels sorry
for the applicants and he would not object to the construction of a house.
Mr. Sanchez, surrounding property owner, stated he sold John and Betty Merritt their property and he
understands Mr. Baird's concerns. He indicated John and Betty Merritt are very nice people, Mr. Merritt
is a good friend, and he completes high quality work; however, when he sold them the property,
Mr. Merritt promised to construct a house on the property, and he does not want a mobile home to be
placed in the area. He stated he carries the first mortgage on the property, which is in arrears, and he
does not know how Mr. Merritt will complete the planned improvements to the property, in addition to
catching up on the mortgage payments. In response to Commissioner Rademacher, Mr. Sanchez
stated he has not offered to purchase the property back from the Merritt's; however, he is not opposed
to it. In response to Chair Kirkmeyer, Mr. Sanchez confirmed there is no deed restriction on the
property. Further responding to Chair Kirkmeyer, Mr. Sanchez confirmed he would not have any issues
with Mr. Merritt constructing a log house; however, he is not convinced Mr. Merritt will be able to make
the mobile home appear as though it is not a mobile home, and he does not want a precedent to be
established for the area. In response to Commissioner Conway, Mr. Sanchez confirmed the lot he sold
to John and Betty Merritt is the only lot he has sold from this particular piece of property; however, he
hopes to eventually develop more of the property. Further responding to Commissioner Conway,
Mr. Sanchez clarified the lots on the property from which he sold Mr. Baird a lot have covenants and
deed restrictions, and he did not include covenants or deed restrictions for the lot he sold Mr. Merritt,
since he is a friend, and he is familiar with the quality of construction Mr. Merritt completes. He stated
Mr. Merritt has completed construction work for him on other properties, and he did a fabulous job. He
indicated he is sorry Mr. Merritt is facing financial difficulty; however, placing a mobile home on the
property will negatively affect all the neighbors. In response to Chair Kirkmeyer, Mr. Sanchez stated he
has owned the 60-acre property from which he sold Mr. and Mrs. Merritt their lot for approximately
seven (7) or eight (8) years.
Heidi Leatherwood, surrounding property owner, stated she owns a house in the Garcia PUD, and she
is concerned about setting a precedent to allow other mobile homes in the area because she would be
Minutes, March 28, 2011 2011-0822
Page 8 BC0016
concerned for the safety of her children if other people were to place mobile homes in the area. She
stated she is also concerned about the mobile home decreasing her property value. She indicated
everyone is facing financial difficulties; however, Mr. Merritt should be held to his promise to construct a
house.
Bojeme Tomtas, surrounding property owner, indicated her most valuable asset is her home, and a
mobile home will decrease the value of her home. She indicated if the mobile home is allowed, it will
obstruct her beautiful mountain view.
Tamara Shilof, surrounding property owner, stated she has lived in the Hacienda Heights subdivision
for approximately three (3) years and she and her husband chose to purchase a house in the area
because it has a nice view and it is located in a quiet area. She stated she understands the situation
Mr. and Mrs. Merritt are in and she has had similar problems; however, she wants a nice view, which is
why she and her husband purchased such an expensive home.
Alexander Shilof, surrounding property owner, indicated he and his wife live in a nice area with a
beautiful view, and they invested a lot of time and money to complete their lawn. Ms. Shilof indicated
she and her husband did not have a lot of money available to hire a landscaper; therefore, they
completed the landscaping themselves, even though they were both working full time, and they
sometimes worked on the yard until midnight, in order to ensure the neighbors had a nice view. In
response to Commissioner Rademacher, Mr. Shilof indicated the property to the west of his contains a
residence. Ms. Schrage stated Mr. and Mrs. Shilof live on Bianca Court, which was her hayfield at one
time, and the house Commissioner Rademacher inquired about is a brick farmhouse her husband
constructed on the five (5) acre property. She stated she and her and her husband sold that property
and constructed a house across the street on a 15 acre property.
Mr. Merritt stated the Meadows Estates is not located directly behind his property; it is actually within a
small corridor which does not adjoin his property at all, contrary to the map provided by staff. He
indicated the photographs he previously submitted, marked Exhibit C, demonstrate the views from his
property, including photos of all the structures adjoining his property, including numerous sheds. He
stated he has not set the mobile home yet; however, it will be placed at ground level and it will not be
raised. Mr. Merritt stated there is a large plastic greenhouse on an adjacent property, which is larger
than the mobile home he has purchased and it is more of an eyesore. He indicated he has been a
contractor for more than 30 years, and he began working at a lumber yard approximately four (4)
months ago after being out of work for approximately eight (8) months; therefore, his financial situation
has improved and he will be able to move forward with the proposed improvements. He confirmed he
did indicate to Mr. Sanchez he intended to construct a house on the property when he purchased it and
he paid over $4,500.00 for a building permit, as well as approximately $8,000.00 to $9,000.00 for
geotechnical engineering. Mr. Merritt stated he and his wife want a home, his wife has been ill, and he
checked the restrictions for Weld County. He stated mobile homes are allowed in agricultural areas in
Weld County, and he researched the matter prior to purchasing the mobile home. He stated he has
already fixed up the inside of the mobile home and when he is allowed to set the mobile home, he will
be able to complete the improvements to the exterior. Mr. Merritt stated he did not know his neighbors
could dictate what can be constructed on his property; otherwise, he would have reconsidered
purchasing the mobile home. Ms. Merritt stated Mr. Sanchez offered her and her husband a lot from
the property with the covenants, and she and her husband declined it, at which point, he showed them
the lot they ultimately purchased, which does not have any covenants. She stated she expressed she
did not want a home more than 1,200 square-feet in size to Mr. Sanchez, since she and her husband
are empty-nesters and do not need a large home. She stated although the adjacent pig farm has been
abandoned, it still can use a lot of improvements, such as the structures being painted. She reiterated
there are two (2) other mobile homes in the area, and she indicated that she worked as a realtor for a
number of years and she knows that when determining comparable sales for a property, one would not
Minutes, March 28, 2011 2011-0822
Page 9 BC0016
compare a mobile home to a large, expensive home; therefore, the concern about the property values
in the area decreasing is not valid. Ms. Merritt stated she and her husband are working on paying off
Mr. Sanchez and it will be easier when the house is set and they can refinance. She indicated her
husband has also completed some work for Mr. Sanchez in lieu of making payments. In response to
Commissioner Rademacher, Mr. Merritt indicated in the future he would like to upgrade the mobile
home by either replacing it with a traditional house or expanding the mobile home structure. Ms. Merritt
stated she would like to have a large family room constructed to face the mountains at some point in
the future, as was in their original plans. In response to Commissioner Rademacher, Ms. Merritt stated
the cars on the property located to the west are not fenced; the property is completely visible from their
property. She stated from her property she can view the adjacent horses, dogs, chickens, old farmland
with junk on it, a barn, and silos. Mr. Merritt stated there are also tanks on an adjoining property which
contains a lot of weeds. He stated it was mentioned that an adjacent property has been nicely
remodeled; however, half of the picket fence on the property has been torn down and is leaning over.
He stated the sheds on the adjacent property are also encroaching onto their property. Ms. Merritt
stated she and her husband have invested approximately $40,000.00 to provide utilities to their
property and they have spent approximately $5,000.00 on fencing. Commissioner Rademacher stated
Mr. Sanchez has indicated he is open to purchasing the property back from Mr. and Mrs. Merritt.
In response to Commissioner Rademacher, Ms. Inloes indicated USR Permit #673 was originally
approved for a dog kennel on the property to the west and the USR Permit was later amended for a
pottery studio, and the USR on the property to the east needs to be researched by staff and possibly
vacated. Commissioner Rademacher thanked everyone for their testimony. He indicated there are no
deed restrictions on this property; therefore, the property owners have the right to place the mobile
home on their property, according to the Weld County Code, and the property owners are going above
and beyond what is required of them, in order to try to achieve better compatibility with the surrounding
area. He stated there is an adjacent property which was formerly a dog kennel and is now a pottery
studio, as well as a property to the west which is essentially a junkyard; therefore, he does not see a
lack of compatibility with the surrounding area.
Commissioner Garcia stated he has reviewed Section 23-4-200 of the Weld County Code, and it
indicates that when the Board considers the usage of a mobile home as a principal dwelling, it must
consider the four (4) items listed in the proposed Resolution, which are: 1) "The proposed use is
compatible with the surrounding area, and in harmony with the character of the neighborhood, and its
effects upon the immediate area; 2) "The proposed use is consistent with Chapter 22 of the Weld
County Code and any other applicable code provisions or ordinance in effect; 3) "The permitted use will
be compatible with the existing surrounding land uses"; and 4) "The general health, safety, and welfare
of the inhabitants of the area and the county will not be affected." He stated upon reviewing those
criteria and Section 23-4-200, which indicates it is not a straight use by right to have a mobile home in
the A (Agricultural) Zone, he finds the use of residential living quarters is compatible with the
surrounding area; however, he is concerned about the use being in harmony with the character of the
neighborhood property and the effects on the immediate area, since the mobile home is not in harmony
with the other residences in the area.
Commissioner Conway concurred with Commissioner Garcia, and he stated he empathizes with the
applicants; however, the lot was sold with the intent a house would be constructed on it.
Chair Kirkmeyer stated it is apparent the Board is struggling with this matter for numerous reasons, and
she is not a fan of PUDs or multiple Recorded Exemptions in agricultural areas because it creates
situations such as this one. She stated there is nothing in the Weld County Code which allows the
Board to consider increased or decreased property values, and she finds the applicant has shown
compliance with the four (4) criteria Commissioner Garcia read into the record. She indicated she
could view the proposed use as being in harmony with the character of the neighborhood, as well as
Minutes, March 28, 2011 2011-0822
Page 10 BC0016
not being; therefore, she considered her own situation where two (2) mobile homes have been placed
in her area of the County. She stated she was not pleased when a single-wide trailer was placed in the
area; however, it is valued at $200,000.00 after adding siding, a roof, and a porch. Chair Kirkmeyer
stated the mobile home is compatible with the character of her neighborhood and it has not decreased
her property value. She stated the Commissioners each have their own experiences they must rely on
when reviewing these matters; therefore, she finds it does meet all the criteria. She reiterated there are
no deed restrictions, it is within the A (Agricultural) Zone, and it does meet compliance; therefore, she
supports staff's recommendation. Commissioner Rademacher moved to approve ZPMH #2608. Chair
Kirkmeyer seconded the motion. Commissioner Rademacher stated when the Meadow Estates PUD is
considered, these concerns will be confronted once again. He indicated he finds the proposed mobile
home to be compatible with the existing surrounding uses, and the home may be fairly highly valued
when Mr. Merritt completes all of his planned improvements. Commissioner Garcia stated he
appreciates Chair Kirkmeyer and Commissioner Rademacher's comments, which have made this an
interesting and difficult matter for him. He stated the the Board takes this matter seriously and realizes
this affects peoples' livelihoods and properties, and he has to consider what is right for the individual
property owner versus the community. He stated the pig farm would be an agricultural use; however, it
has not been used for years, and the community is not actively agricultural. He stated the community
seems to be residential, and he cannot find it is in harmony with the character of the neighborhood;
therefore, he will not support the motion. Commissioner Conway stated he has struggled with this
matter, since property rights cut both ways, and people in the immediate area believe the mobile home
will negatively impact them. Upon request for a roll call vote, the motion tied, with Commissioners
Conway and Garcia in opposition and Chair Kirkmeyer and Commissioner Rademacher in favor. Chair
Kirkmeyer stated Commissioner Long will review the testimony provided, the recommendation from
planning staff, the documentation submitted by staff, and the exhibits submitted, and he will make a
decision for the record as soon as is practical. Mr. Barker stated there is no particular deadline for
Commissioner Long to provide his determination; however, as a courtesy to all those in attendance, he
recommended a deadline be established for Commissioner Long to provide his determination in
approximately two (2) to three (3) weeks, at which time he will report his determination during a regular
Board meeting. Chair Kirkmeyer directed that Commissioner Long will provide his determination during
the regular Board meeting on April 11, 2011. Commissioner Conway thanked everyone for attending, it
is an important issue, and he appreciates their participation in the process.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
Consent Agenda. No Ordinances were approved.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully submitted
by the Acting Clerk to the Board.
Minutes, March 28, 2011 2011-0822
Page 11 BC0016
There being no further business, this meeting was adjourned at 11:00 a.m.
BOARD OF COUNTY COMMISSIONERS
WET COUNTY, ORADO
ATTEST: .✓ e &/
arbara Kirkmey r, Chair J
Weld County Clerk to e1861
pp '���`� �� Sean P. Con , Pro-Tem C 1
BY:
Deputy Clerk to the
I m F. Garcia
AP ED ORM: EXCUSED
David E. Long
u y ttorney
ouglas ademac r
Minutes, March 28, 2011 2011-0822
Page 12 BC0016
To: William Wood Supervisor, Salmon-Challis National Forest
324 25th Street CL1.411.110
Ogden,UT 84401
Re: Coordination meeting
Dear Mr. Wood,
The Board of Custer County Commissioners suggests that we schedule a coordination
meeting for either 2010 at time or 2010 at
time. If neither date is available for you,please call our clerk at 208-
by to schedule a mutually convenient date.
We know that you are familiar with the Forest Service obligation to coordinate with local
government. The Congress and the Secretary of Agriculture have mandated that the process take
place. Recently at the Andrus Conference on Public Lands and Public Policy held at Boise State
University,the Chief of the Forest Service, Tom Tidwell, speaking with our consultant Fred
Kelly Grant,agreed that local government involvement with the Forest Service is critical to any
type of successful collaborative effort toward planning for the use of the forests.
Even though we are certain you are familiar with the applicable statutes and regulations,
for the purpose of laying out for all of us the tapestry of the coordination mandate,we set forth
the statutory and regulatory requirements.
The National Forest Management Act, 16 United States Code Section 1604(a), requires
that the Secretary of Agriculture"shall develop, maintain, and, as appropriate,revise land and
resource management plans for units of the National Forest System, coordinated with the land
and resource management planning process of State and local governments and other
federal agencies." Sub section(e)of Section 1604 provides that in developing,maintaining and
revising plans for units of the National Forest System such as the Salmon-Challis National Forest
the Secretary"shall assure that such plans..include coordination of outdoor recreation,range,
timber, watershed, wildlife and fish, and wilderness."
The section 1604(a)coordination requirement is completely distinct from the"public
participation"element of plan review referred to in sub section(d). In the "coordination"sub-
section there is no mention of the "public"or"interested public". There is a distinct process
directed for your relationship with this Board.
Section 6(a)of the Range Land Renewable Resources Planning Act states that the
Secretary"shall develop,maintain and, as appropriate,revise land use and resource management
plans for units of the National Forest System coordinated with the land and resource
management planning processes of State and Local governments."
When the Secretary of Agriculture issued the very first rules after enactment of the Forest
Management Act he defined the elements of the"coordination"process. As Congress had
reorganized management of the range lands and of the forest in the mid 1970's, an amendment to
1i
the Federal Land Policy Management Act, offered by Senator Packwood of Oregon, required
"coordination"between the BLM and local government. The legislative history of that
amendment shows that officials of public land management agencies advised Congress that the
requirement of"coordination"would make their jobs more difficult. Congress clearly intended
such result because of the impact of management of the public lands on the economy and social
cohesiveness of local government and of locally elected officials. The amendment became law,
and FLPMA required,and defined, "coordination".
Congress defined the term so as to require that conflicts between federal policy and local
plans be resolved to reach consistency whenever legally possible.
Congress did not define the term"coordination"in the National Forest Management Act,
relying on the fact that its definition of coordination in FLPMA would be followed in the
management of all public land. As it happened, the Forest Management Act was passed before
FLPMA because rangeland management had not been previously legislated. The Secretary of
Agriculture defined"coordination"in the 1982 planning rules in at least as comprehensive a
manner as did Congress in FLPMA.
The 1982 planning rules are the rules that the Forest Service must follow until new rules
and regulations are issued in compliance with NEPA. On December 8, 2009 the Secretary
published in the Federal Register a notice of intent to prepare an environmental impact statement
for issuance of new planning rules. The Federal Register notice stated: "The agency's
expectations based upon its experience with the 2000 rule is that National Forest and Grasslands
will use the 1982 rule provision,as permitted by the transition provisions of the 2000 rule,to
revise and amend plans until a new planning rule is issued." So by order of the Secretary of
Agriculture the 1982 planning rules are applicable.
In those rules, 32 CFR Section 219.1 states the purpose and principles guiding the
"process for developing, adopting, revising land and resource management plans for the National
Forest System." Sub-section B of Section 219.1 provides that"Regional and forest planning be
based on the following principles:
...(9) Coordination with the land and resource planning efforts of other Federal agencies,
State and Local governments, and Indian Tribes;
(10)Use of a systematic, inter disciplinary approach to ensure coordination and
integration of planning activities for multiple-use management;."
Section 291.7 of the 1982 planning rules is entitled"Coordination with other public
planning efforts."Sub section(a)requires that"The responsible line officer shall coordinate
regional and forest planning with the equivalent and related planning effort of other Federal
agencies, State and local governments, and Indian tribes."
The remaining portion of section 291.7 then defines the elements of coordination which
must be followed by the responsible officer of the Forest Service. Sub paragraph(c)requires that
"The responsible line officer shall review the planning and land use policies of other Federal
agencies, State and local governments,and Indian tribes."
21
The results of this review must be displayed in the environmental impact statement for
the plan(40 CFR 1502.16 Xc), (1506.2). The rule then requires that the"review"which is
mandated"shall include"all of the following:
" (1) Consideration of the objectives of other Federal, State and local governments, and
Indian tribes, as expressed in their plans and policies;
(2)An assessment of the interrelated impacts of these plans and policies;
(3)A determination of how each Forest Service plan should deal with the impacts
identified;and
(4) Where conflicts with Forest Service planning are identified, consideration of
alternatives for their resolution."
Sub section(d)of 219.7 requires that in"developing land and resource management
plans"the responsible line officer"shall meet with...representatives of other Federal agencies,
local governments, and Indian tribal governments at the beginning of the planning process to
develop procedures for coordination."The rule also requires that in developing the forest plan,
the responsible line officer shall seek input from "local governments...to help resolve
management concerns in the planning process."
Finally, sub section(f) of 219.7 requires that"A program of monitoring and evaluation
shall be conducted that includes consideration of the effects of National Forest management on
land,resources, and communities adjacent to or near the National Forest being planned and the
affects upon National Forest management of activities on nearby lands managed by...other
government agencies or under the jurisdiction of local governments."
In developing the Travel Management Plan, your personnel did not meet with the Board
early in the development process to "develop procedures for coordination."Neither did your
personnel show any assessment of the "interrelated impacts"of your Travel Management Plan
with the policies of the county regarding roads and access within the forest. Neither did your
personnel meet with the Board to consider"alternatives"for resolution of"conflicts"between
our local policies and the Forest Service Plan.
The Secretary of Agriculture issued Travel Management rules specifically to apply to
development of the Travel Management Plan. 37 CFR section 212.253 requires that you
coordinate with the county with regard to development of the Travel Management Plan,
particularly with regard to sub part B of the rules"designation of roads,trails and areas for motor
vehicle use."
The purpose of this letter is not to raise the examples of how your personnel failed to
coordinate during development of the Travel Management Plan. The purpose of this letter is to
lay out the frame work of coordination which is mandated by Congress and the Secretary of
Agriculture,and then to move toward coordination in implementation of your Record of
Decision. In 36 CFR section 295.6 the Secretary has required: "Forest Supervisors to annually
review off-road vehicle management plans." Your Record of Decision was issued in September,
2009. We are now only three months away from your annual review of that Record of Decision
and its Travel Management Plan. We believe it is time to begin coordination in order to discuss
the conflicts which exist between our policy of access and your Record of Decision.
3I
One of the major elements of conflict relates to the inventory of roads,trails and RS 2477
rights of way with which you prepared the Travel Management Plan. That inventory was
incomplete. In our appeal of your Record of Decision we did not contend that your inventory
needed to include"user created mutes."Rather we argued that the inventory was incomplete
because it did not include many roads which we identified as having been historically and
currently used. Those roads were identified in paragraph one of our appeal. They are: "sleeping
deer road, east pass(which is an RS2477 road)west pass-east fork salmon river, slate creek,herd
creek-camp ground, wagonhammer,rainy creek-cooper basin, French creek-cooper basin,trail
150-pack creek,beef pasture trail,jimmy smith trail,marco 205, 4166 brunt creek."Through
coordination we will urge that you reconsider the status of these fully operable historically
existing roads that were not shown.
We contend that the act of ignoring these roads was a violation of the Data Quality Act.
In your appeal decision you pointed out that you used"the best information available concerning
existing roads and trails."But that is an inaccurate statement,because the county provided to you
a list of known existing and historically used roads as stated above. Our specific knowledge and
that of our constituents is based on actual use and personal history.
The failure to include the above listed roads even on your inventory map created a
conflict between county policy as to road usage and your Travel Management Plan. In addition,
as to RS2477 routes, you take the position that the Forest Service is"not required to determine
the validity of public highway right-of-way claims made by the County."Under Idaho law the
county is the agency that legally identifies RS2477 routes. There is no necessity for a court
decision to validate an RS2477, either under the Tenth Circuit decisions of Southern Utah
Wilderness Alliance vs. BLM or Kane County vs. Salazar,or any form of federal law. The Tenth
Circuit decision shows that the federal courts recognize what the Idaho legislature mandated
several years ago: state law governs the existence of an RS2477 route.
State law designates the county commissioners as the authority to determine whether a
route is a 2477 route. The Idaho Supreme Court and many federal courts have held that Revised
Statute 2477 was a self executing statute.All that is necessary under Idaho law to validate an
RS2477 is acceptance of public use by the county. This Board has made clear the roads that we
identified as R52477. It is not up to you to challenge that designation.
Should you want to challenge our designations, the Idaho legislature set forth the process
by which you can request validation by this Board of County Commissioners. Without making
use of that validation process you are in no position to question our designation of an RS2477
route.As a matter of fact,under the Idaho statutes,any act by you to close a road designated by
the County as an RS2477 mute constitutes eminent domain and is a taking. As you are aware the
Federal Court of Claims and the United States Supreme Court have determined that the question
of whether there is a taking of property, which includes an RS2477 route,is determined in
accordance with state law.
So from the stand point of this county policy and the policy of the state of Idaho, a
conflict exists when you fail to recognize RS2477s which we designate. Those conflicts need to
4I
be resolved through coordination rather than costly litigation in which we would seek award of
attorney's fees.
The map which we attached to our appeal contained many roads,trails and areas in the
forest that your personnel either ignored in preparation of the Travel Management Plan,or over
looked,or simply failed to observe. By failing to show on your Travel maps,the roads,trails and
areas identified by the county,you by default closed them. As to each of those roads,trails and
areas, you did not coordinate with the county to determine a way by which the conflict between
local designation and your plan could be resolved.
As to the issue of"dispersed camping"the Record of Decision reduced the camping
distance from 300 feet down to 100 feet on ATV and four wheel use. But in a letter to the public
and to this county dated August 1, 2007 your personnel said that"off road access would be
permitted either side of designated routes." The difference between that letter and the final
determination in the Record of Decision created an inconsistency which misleads the public,
causing concern expressed to this Board. This inconsistency should be coordinated with the
county because the policy of the county favors wider and broader camping distance.
The Forest Service did not coordinate the development of your final Record of Decision
with this Board. You did not review with the Board public input received by both your Service
and the Board. You did not meet with the Board to analyze or determine our local policy with
regard to designation of the roads referred to in this letter. You did not meet with the Board to
identify and discuss conflicts between what you planned and our local policy. You did not meet
with the Board to seek to reconcile the inconsistent positions between the contents of your
Record of Decision and local policy. You did not meet with the Board to review the final draft
before it was released to the public as you are specifically required to do by your own planning
rules.
By failing to take these specific acts of coordination,the Forest Service has acted in
violation of the mandates of coordination just as did the Forest Service in the case of California
Resources Agency vs. United States Department of Agriculture decided by the United States
District Court for the Northern District of California on September 29, 2009. In that case the
court held firmly that the Forest Service is obligated under the National Forest Management Act
as well as its own planning rules to coordinate with state and local governments. In that case the
State of California filed a complaint against the Forest Service charging that the plans issued for
the Angeles, Cleveland,Los Padres, and San Bernardino National Forests were issued without
coordination with the state as required by statutes and regulations. The court found that there was
no coordination and as a result put a hold on the Forest Service plan and still is seeking to
determine whether to completely set aside the plan.
The same statute and regulations that were applied by the District Court in that case
includes coordination with local government. In that case the Forest Service failed to discuss the
state's position on a Travel Management Plan related to the Roadless Rule. In failing to discuss
the state's position the Service also failed to point out the inconsistencies between the state's
position and that of the Forest Service. The court concluded that the failure of the Forest Service
"significantly prohibits the public's ability to understand the competing priorities of the Service
5I
and State"(page 17 of the decision) The Forest Service unsuccessfully argued that it satisfied the
coordination requirement of the Forest Management Act and the 1982 planning rules by meeting
with the State,talking with the State and listening to the State's position. The court disagreed and
held that"coordination"requires more than just listening to the position of the state or local
government. Coordination,the court held,requires that the service analyze the inconsistent
positions between local policy and the Forest Service policy,discuss those inconsistencies and
consider alternatives for resolving the conflicts or inconsistencies.
We now call upon you to follow the mandate of coordination included by Congress in
statutes, the Secretary in rules and the Federal Courts in case decisions. We call upon you to
meet with us to begin discussions of inconsistencies between our policy with regard to access
and the policy expressed in your Record of Decision. We know that you are aware of the
requirements of the statutes and of the regulations. In a letter or press release dated May 1, 2006
you said that"the district rangers will seek public input and coordinate with state and county
road agencies...before any decision is made on a particular road, trail, and area."The county
road agency involved in this county is this Board. In spite of your letter commitment,your
rangers did not coordinate,and neither did you.
What you characterize in your Record of Decision as our participation as a"cooperating
agency"has nothing whatever to do with your obligation to coordinate as to inconsistencies in
policy. We now call on you to begin coordination as your ultimate boss,the Secretary of
Agriculture,has defined and mandated it.
We look forward to a very successful and compatible coordination process in the manner
directed by Congress and by the Secretary. We look forward to a compatible coordination
relationship which will lead to the same type of collaborative result praised by the Chief of the
Forest Service,Tom Tidwell, during the Andrus conference in Boise.
We look forward to our first coordination meeting which will begin a productive
relationship between this Board and the Forest Service.
Cordially,
61
Attest:
Clerk
7
m- co i4\ it
:J
Z.
a a , "c ,c_ i
Ili a d Thl9v
re ..
0
0
� �
oz = y fJ car , j -,,, z ,
ix -a 1 C_) J - el -4 --)3 .
Z LL 1
W 0 •
N N, I�.
I Q a. N 3 . T_ ro
a = o zrcol ,o� . m iis) n m
N i_ c a L' U' U (�jM ce ii ro 1 " 4'
F D re N
r ix al N
~ w c
z E co R J-
O 0 0 o l �
T
(-- c 1)
aI I§ \ �J O CL , It 9 :.z , ,1 1 , -Le -t— l,
a °° f
76 z It p J (' \1`6 - v �
W U
a rC� �7
w as J z o / `� j � 1
2 N G.
Hello