HomeMy WebLinkAbout20110797 HEARING CERTIFICATION
DOCKET NO. 2011-15
RE: CHANGE OF ZONE, PZ #1158, FROM THE A (AGRICULTURAL) ZONE DISTRICT TO
THE PUD (PLANNED UNIT DEVELOPMENT) ZONE DISTRICT, WITH C-3 (BUSINESS
COMMERCIAL) AND 1-3 (INDUSTRIAL) USES, FOR NINE (9) PARCELS OF 35
ACRES IN SIZE OR GREATER, OPEN SPACE, AND CONTINUING OIL AND GAS
PRODUCTION - RAWAH RESOURCES, LLC, C/O NIOBRARA ENERGY PARK, LLC
A public hearing was conducted on March 16, 2011, at 10:27 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Sean P. Conway, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Christie Peters and Esther Gesick
County Attorney, Bruce Barker
Planning Department representatives, Tom Parko and Trevor Jiricek
Health Department representative, Lauren Light
Public Works representative, Don Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated February 11, 2011, and duly published
February 16, 2011, in the Fort Lupton Press, a public hearing was conducted to consider the
request of Rawah Resources, LLC, c/o Niobrara Energy Park, LLC, for a Change of Zone,
PZ#1158, from the A (Agricultural) Zone District to the PUD (Planned Unit Development) Zone
District, with C-3 (Business Commercial) and 1-3 (Industrial) uses, for nine (9) parcels of 35
acres in size or greater, open space, and continuing oil and gas production. Bruce Barker,
County Attorney, made this a matter of record.
Tom Parko, Department of Planning Services, presented a brief summary of the proposal,
entered the favorable recommendation of the Planning Commission into the record as written,
and provided a brief description of the site and the surrounding land uses. He indicated the
proposed site consists of 644 acres, and is not a part of a Weld County subdivision or recorded
exemption. According to Mr. Parko, the staff initially met with the applicant in
November of 2010. He stated that the subject property is located in a sparsely populated area
of Weld County, and is strategically located in an area served with various forms of
infrastructure. He added there are several Use by Special Review (USR) permits in the area,
including the Cheyenne Hub, located north of Rockport, overhead transmission lines, and a
substation located to the south of the property.
Mr. Parko stated that this project is very unique, because it is the first Planned Unit
Development (PUD) in the County that is specific to commercial and industrial uses. He stated
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the proposed uses cover a wide range of the energy spectrum, and the majority of the proposed
uses are not traditionally found in the Weld County Code. He stated the reason why this project
is being processed as a PUD is because it allows creativity and flexibility. Mr. Parko stated this
PUD was processed under Section 27 of the Weld County Code and the proposal is in
compliance with Section 22-5-140 of the Weld County Code, which encourages the support and
development of alternative energy support industries. He stated the sketch plan was approved
administratively, earlier this year, and the next step of the process is the Change of Zone. He
further added that Niobrara Energy Park is a nine (9) lot urban-scale development that was
processed as a conceptual development guide, because most of the components of the
development guide will be required to be submitted at the final plan, which is allowed under
Section 27-6-20.C of the Weld County Code. He further added the development guide consists
of eight (8) major components of the PUD development, which are located under
Section 27-6-30 of the Weld County Code. Mr. Parko stated that component item G, RUA
impacts, and H, Intergovernmental Agreement (IGA) impacts, were omitted because they do not
apply to this project. He stated the applicant is proposing a total of 52 uses, if approved, and
they shall appear on the Change of Zone plat for future reference.
Mr. Parko added that all nine (9) lots will be 35 acres, or greater, the project is being processed
as a non-urban scale development, and the development does not have a public water supply.
He stated the property has four (4) commercial exempt wells and has provided evidence of
sufficient water supply for the site. Mr. Parko stated, at the time of the final plan, the applicant
will be required to submit more specific information and studies to the County. He stated the
subject property is not within the three (3) mile referral area, and the town site of Carr is
approximately two (2) miles to the west. He stated twenty-four (24) referral agencies reviewed
the proposal; only eleven (11) responded with comments, and some with specific conditions.
Mr. Parko stated no telephone calls or written comments have been received in objection to this
project. He said on March 1, 2011, the Planning Commission recommended approval of this
project, minus the requirement of an eighty (80) acre agricultural outlot.
Mr. Parko displayed photographs of the subject site and surrounding properties, and stated
there are two (2) surrounding property owners. In response to Commissioner Conway,
Mr. Parko stated they did not receive comments from either one of the two (2) property owners.
In response to Chair Kirkmeyer, he stated there is a requirement in the Weld County Code to
preserve a minimum eighty (80) acre outlot, when working with non-urban scale developments.
Don Carroll, Department of Public Works, stated the property is accessed from County
Road 126, which is classified as a collector roadway, and requires eighty (80) feet of
right-of-way. Mr. Carroll indicated the average daily traffic count for County Road 126 is
roughly 250-300 vehicles, per day, at an average speed of fifty-two (52) miles per hour (MPH).
He stated at the time of submitting the final plan, the applicant will be required to obtain the
appropriate access permits for the subject property, to ensure there are sufficient accesses
which are adequate and safe. He added the applicant will also be required to provide a Master
Drainage Plan, Improvements Agreement, Traffic Study, On-site Geotechnical Soil Report, and
Grading Permit. Mr. Carroll stated each of the nine (9) parcels will be required to obtain
individual USR permits, or covered through the site plan review process, and will be evaluated
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at the appropriate time. He said the Department of Public Works supports this project, and
reiterated that today's proposed request is only for a Change of Zone.
Lauren Light, Department of Public Health and Environment, stated the applicant has satisfied
Chapter 27 of the Weld County Code, in regard to water service. She indicated the water is
provided by four (4) commercial exempt well permits, which is adequate for the site. She added
that sewer service, and waste and dust handling, will be addressed as the individual uses are
determined. Ms. Light stated that based on having nine (9) parcels, the overall density for
septic systems is one (1) per 71 acres, which exceeds what the Weld County Code requires. At
this point in time, the Department of Health and Environment does not have any concerns with
the proposed request.
Craig Harrison, applicant, was present and provided background information about the project.
Mr. Harrison stated the biggest goal to date is for the site to be "process, shovel, ready." He
indicated that when he initiated this project, there were only two (2) horizontal wells within a
ten (10) mile radius of the subject site, and now there are 75. Mr. Harrison stated, at that time,
they looked at key transportation points by researching Google for key access points for
Interstate 80.
The applicant stated he hired Exponential Engineering Company, which discovered there
are 100 megawatts (MW) of electricity that flows off the grid into the project, and puts the
same 100 megawatts (MW) back off the property and back into the grid. Mr. Harrison said he
also hired Alliance Wood Group Engineering to conduct a gas infrastructure study for the
project, and they concluded that five (5) to seven (7) percent of all of the gas, in America, flows
through the Cheyenne Hub on a daily basis.
In addition, Mr. Harrison stated he explained the project to the President of the Colorado Energy
Research Institute (CERI), and the president stated, "This project would be considered the first
hybrid energy park in America." Mr. Harrison referred to a letter of support for his project from
CERI, dated December 5, 2010. He added the President of CERI also noted some of the
biggest fiber in the nation is going right by the site.
Mr. Harrison said he also hired the largest design data firm company in Europe to conduct a
study on the fiber and they concluded the proposed site is one of the biggest national highways
along U.S. Highway 85. Mr. Harrison stated a report by the National Data Center indicated the
proposed site location is excellent for a National Mega Data Center, and may have the
capability to support a Tier 4 Center, of which there are only four (4) in America. He stated that
Verizon Wireless recently announced they secured an option for a $4 billion dollar data center in
Laramie, Wyoming. Mr. Harrison stated the subject site, if approved today, would almost be
ready to house a data center. The applicant added he had an Ecological Assessment, as well
as a Preliminary Traffic Study, Preliminary Geotechnical Studies, Soil Testing, and a
Demographic Report conducted on the subject property.
Mr. Harrison referenced Section 22-5-130 of the Weld County Code, which encourages the
development of alternative energy resources, which do not replace the traditional sources of
energy. He also cited AE.Policy 1.1 of the Weld County Code, which encourages the attraction
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and encouragement of alternative energy support industries involved in manufacturing,
distribution or research. Mr. Harrison stated the proposed project meets all of the above criteria.
Next, he referred to a photograph of the electrical guide that exists on the site. He proceeded to
describe the various electrical transmission lines, which exist on the site, and referenced them
on the map. Then, Mr. Harrison displayed photos of the existing substation and stated he
wasn't sure if Poudre Valley Rural Electric Association, Inc. (PVREA) will be removing the
existing substation, or constructing a new one on the site. In addition, Mr. Harrison referred to
the Cheyenne Hub, existing gas and oil pipelines, and fiber optic data lines. He also called the
Commissioners' attention to a photograph of the County's maintenance facility, which sits within
fifty (50) feet of this massive national highway of fiber.
Mr. Harrison also referred to a slide, which displayed the connection between 1-25 and U.S.
Highway 85, and he pointed out the 200 thousand workforce population that lives within a
thirty (30) mile radius of the project. He proceeded to describe how Wyoming has been getting
a good amount of business lately, including the proposed Verizon Data Center, NCAR
Supercomputer, Echo Star Data Center, and a wind turbine plant.
The applicant referenced a variety of other projects, above the proposed site, which he referred
to as other "energy generators" and stated these projects flow through the project. He stated
that by having all of these intermittent power sources, located above the site, flow through the
lines, and by having a firming power plant, the site would not only be firming the energy sources
on the site, but the other sources above the site, as well. Mr. Harrison said having a firming
plant inside of the energy park will allow the firming of alternative energies, which makes the
data center feasible. He summarized the project and stated he feels the project meets the
County's policies and he wants to get the project "shovel ready," as soon as possible.
In response to Commissioner Rademacher, Mr. Harrison stated Owl Creek will not affect the
project because there isn't a culvert, which indicates how small the drainage basin really is. He
added there is little indication of any stream. Mr. Parko stated a referral was sent out to the
Federal Emergency Management Agency (FEMA), but he has not received any comments at
this time. Commissioner Rademacher stated it would be disastrous to have comments show up
from FEMA at the last minute.
In response to Commissioner Rademacher, Mr. Harrison stated the wells are for inside use
only, and his attorney, Fred Otis, will be referring to this at the time of his presentation. He
added the majority of this project will be open space. In response to Commissioner
Rademacher, Mr. Harrison stated there is no uranium mining, or leases, in the area.
Commissioner Garcia referred to a letter, dated March 7, 2011, from the Colorado Division of
Wildlife (CDOW), and asked if the applicant had any concerns with their recommendations. Mr.
Harrison said his only concern would be if rattlesnakes were on the Endangered Species List.
The applicant stated he had a Phase 1 Environmental Audit and Ecological Assessment Report
completed at the site, since the CDOW didn't respond in a timely manner. He added that the
site has an eight (8) acre area of prairie dogs, and they are willing to abide with what they need
to for the project.
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Fred Otis, Attorney, was present and represented the applicant. Mr. Otis expressed his support
for the project, and stated the review process went smoothly and is consistent with Weld
County's Policies. He stated the project is located in a sparsely populated area of Weld County,
and the applicant has not asked for any incentives to bring this project to Weld County. He
stated Mr. Harrison has been very thorough and spent a lot of money on this project. They are
trying to get this project as far down the road as they can to make it marketable to prospective
users to the site. He stated they tried to anticipate what a future user would look at when
considering whether to build on the site.
Mr. Otis stated the case originally started out as a Change of Zone (COZ) to the Commercial
and Industrial Zone Districts; however, because the uses are creative and not specified in the
Industrial Zone, the application was converted to a PUD. He added, that as they went through
the PUD process, he noticed the Weld County Code was written as a residential tool, and not
for industrial uses. Mr. Otis recommended the Weld County Code be re-crafted in certain areas.
Mr. Otis stated at the beginning of this process, it was conceptual, because it is undetermined
who the users will be, but now it has turned into a specific development guide. Mr. Otis stated
the Planning Director preferred that the Commissioners be involved in the decision, unless it
was a specific submittal.
In response to Chair Kirkmeyer, Mr. Parko stated that some of the uses listed in the Niobrara
Energy Park PUD — Allowed Commercial and Industrial Uses Table, were in the Weld County
Code and others were not. He referred to a particular provision in the Weld County Code,
where all of the proposed uses can be used in a site plan reviewal process. He stated they
focused on Section 27-6-120 of the Weld County Code, which allows for these items to be
addressed up front. Mr. Parko said, at this stage of the process, it is difficult to get the details
because it is unknown what the proposed uses will be, until they are addressed at the final
planning stage. He stated the Department of Planning Services is very comfortable with the
listed uses, although some of them are very specific; therefore, he recommended the Board of
Commissioners review the first final plat and that subsequent plats be handled administratively.
Mr. Otis indicated there are 33 requirements in the Resolution adequately protecting Weld
County and that additional provisions, to protect the County, would be redundant. Chair
Kirkmeyer stated there are some uses that may be able to be considered administratively;
however, a water injection facility (injection well) would require a USR. She referred to
items #30, Water Recycle Facility, and #31, Water Injection Facility, on the Niobrara Energy
Park PUD — Allowed Commercial and Industrial Uses Table, and stated both of these uses
require a USR. Mr. Barker stated the Weld County Code requires that once the lots are created
in the PUD, the applicant does not have to get a USR for every use. Chair Kirkmeyer stated
these types of uses, such as injection wells, typically require a USR and come back in front of
the Board of County Commissioners. She added that she is more concerned about the fairness
and consistency of the process with other business operators in Weld County who have been
required to come back to the Board of County Commissioners for approval; whereas, the
proposed process would not be coming back to the Board for the final plan.
In response to Commissioner Rademacher, Chair Kirkmeyer stated that Mr. Parko's
recommendation is that the applicant would come back to the Board for the final plan. She
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added that the final plan will come back to the Board for approval; and after that, the Board
could allow administrative approvals on some of the uses. Mr. Barker stated when the final plan
comes before the Board of County Commissioners (BOCC), the Board will address issues such
as infrastructure, lot sizes, etcetera; and not specific uses, similar to a final plan for a
subdivision. He said that he agrees with Mr. Otis, regarding Chapter 27 of the Weld County
Code, and how it was written for residential development, and needs to be updated to provide
the flexibility of a PUD, so the applicant would not have to get approval for each use.
Chair Kirkmeyer stated she agreed with Mr. Barker about how Chapter 27 of the Weld County
Code was written for residential uses, but now they are considering a commercial/industrial
park. Commissioner Long stated if other applicants went through this process, they too could
get approval for each use through an administrative review as opposed to a USR. He added
the administrative review isn't the USR process, but rather the PUD process. Chair Kirkmeyer
stated she understands there are two (2) processes, but inquired what protections are in the
Resolution for the injection wells. Mr. Parko stated the injection wells would be treated the
same way as a site plan review. According to Mr. Parko, planning would still send the letter to
the referral agencies and put the same kind of terms and conditions on the site plan as they
would a USR; and in this case, it would be done administratively, unless there was a problem,
and then it would come back to the BOCC.
Chair Kirkmeyer stated that the Board recently granted approval for an injection well, and the
proposed process is not the same. Commissioner Garcia stated the BOCC is more strict with
injection wells, and wasn't sure if the Board would be able to enforce that standard for injection
wells with the conditions that are provided through the Resolution for this case.
In response to Commissioner Garcia, Mr. Parko stated for an injection well, the applicant would
have to go through the USR process, since it would be a site specific development plan in the
A (Agricultural) Zone District. He added that the Code is vague when it comes to commercial
and industrial uses within a PUD. Mr. Parko said Section 27-2-200 of the Weld County Code
states that all commercial and industrial lots in a PUD undergo a site plan review process. He
suggested there may be a way for an injection well to go through the site plan review process
and the Board may still be able to add all of their conditions.
In response to Commissioner Garcia, Mr. Parko stated this request could be done
administratively, but he was uncertain whether this request would require a change to the Code.
Mr. Otis also stated this request could be handled administratively. Mr. Otis added if Trevor
Jiricek, Planning Director, is uncomfortable with the final plan, he could bring it back to the
BOCC for review.
Mr. Barker asked Mr. Otis if he was referring to the PUD process for the final plan or the Site
Plan Review Process found in Chapter 23 of the Weld County Code. Mr. Otis responded that
he was referring to the PUD process for the final plan. Mr. Barker stated the Board had a
similar situation last week with a USR for a water injection and recycling facility, and that Mr.
Parko has suggested the BOCC apply the same conditions put on the applicant for the USR,
and apply them through the Site Plan Review process. He stated if the applicant doesn't like
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the proposed conditions, they can appeal to the Board. Commissioner Rademacher stated the
majority of the time the Board makes changes to the application or conditions for USRs.
Chair Kirkmeyer said the BOCC is defining and developing a process as they go; this particular
process may work for this area of Weld County; however, it may not work in an area with a
higher population. She added they've had injection wells that have had a lot of public opposition
and others that did not. Chair Kirkmeyer stated the Board needs to think about the unintended
consequences of this request. She added if they were to allow this request to be processed
administratively, there would be no public comment. Chair Kirkmeyer reiterated that she just
wants the process to be fair for everyone.
Commissioner Long said the applicant could go through a different process if they wanted to
and he agreed if this project was located in a more populated area of Weld County, there would
be more people to offer comment.
Mr. Carroll stated he wasn't sure if Improvements Agreements are required on Site Plan Review
cases. He said he is leaning more towards the USR process for these types of requests, but he
would be okay if they were to make it work with the Site Plan Review process.
Chair Kirkmeyer referred to Condition of Approval #2.P and referred to items #42 though #52 on
the Niobrara Energy Park PUD — Allowed Commercial and Industrial Uses Table, which would
require USRs, and stated the remaining items on the table would require a site review plan. Mr.
Barker explained a 1041 is similar to a USR, but the applicant may not be getting a USR from
Chapter 23 of the Weld County Code. Mr. Otis stated that, through this process, he has learned
there is no reference to the USR in Chapter 27 of the Weld County Code. Mr. Parko
recommended the future uses be considered on a lot-by-lot basis and that it be addressed in
phases; therefore, it would be a final plan in a PUD and not a USR.
Trevor Jiricek, Planning Director, expressed concern with the process being described, because
the Weld County Code specifically says that uses in a commercial or industrial PUD will go
through the Site Plan Review process. Mr. Jiricek added that the Department of Planning
Services has a different opinion when it comes to 1041s and he thinks they should come back
to the Board of Commissioners for approval. He stated when a future final plat comes back to
the Board for approval it won't address a specific use since it is unknown who the operators will
be. He referred to Section 23-2-150 of the Weld County Code, regarding site plan reviews,
which allows the applicant to address dust, noise, roads, and improvement agreements. Mr.
Jiricek stated that staff's struggle is that the applicant's request is both specific and conceptual.
He said the proposed uses are specific, since the applicant is defining his uses and he will
comply with the requirements to get it done; however, it is conceptual because it is uncertain
what the PUD will look like on each individual parcel in the future. He stated that the proposed
request is clearly a unique case. Mr. Jiricek stated the Weld County Code says these are site
plans going forward except for 1041s. He stated that commercial and industrial uses were
contemplated in Chapter 27 of the Weld County Code, so there was some forethought to these
uses.
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Commissioner Rademacher stated he agreed with Mr. Jiricek; however if this project was
located in a different part of Weld County, this process would not work because there would
likely be public input. Mr. Jiricek stated although there is no public present today, they were
provided the opportunity to attend. Chair Kirkmeyer stated that is true; however, people didn't
understand there could be an injection well built on the site in the future. Mr. Parko stated the
information is all posted on the Department of Planning Services' website.
Chair Kirkmeyer inquired if an injection well is a Use by Right in an Industrial Zone. In response
to Chair Kirkmeyer, Mr. Jiricek stated if the property is zoned industrial an injection well would
need a USR. He added that the applicant originally wanted to do industrial uses at the site, and
after meeting with staff, it was determined the applicant should go through the PUD process,
which would provide flexibility, so the applicant would not have to go through the USR process.
Mr. Otis stated this project is really unique and he believes there are reasons to allow the
applicant a specific guide that is justifiable to any rule the Board decides to adopt in the future.
He stated there are many reasons the Board can make an exception, even if they have a certain
direction in the future.
In response to Chair Kirkmeyer's previous question, Mr. Barker stated it takes a USR in an
Industrial Zone for an oil and gas production facility.
Mr. Otis stated everyone is focusing on one issue; however, there are over fifty (50) different
uses on the table, and he said the applicant may be willing to compromise on the uses in
question. Mr. Harrison stated he is willing to do whatever the BOCC is comfortable with, and if
there are any particular uses of concern, he would be willing to delete them.
Chair Kirkmeyer stated if the applicant is doing a site plan review, there would be one or two
ways to come before the BOCC: 1) If the Planning Director decides to bring it to the BOCC,
and 2) The applicant disagrees with staffs' decision and requests that it be brought to the
BOCC. Mr. Barker stated the Planning Director has the ability to bring it to the Board for
consideration, and suggested they try this process and amend the code, where applicable, in
the future.
Chair Kirkmeyer suggested since this is the first project of its kind, the BOCC should go ahead
with this, recognizing they will need to address the Code in the future. Commissioner
Rademacher stated he would be comfortable with Chair Kirkmeyer's request. Chair Kirkmeyer
stated she is comfortable with the request as long as the applicant or the Planning Director can
bring it back to the BOCC if there are concerns. Commissioner Garcia stated he supports this
idea as a test case, and that all of the fiber, infrastructure, etcetera, makes it such a unique site
that cannot be duplicated.
Commissioner Conway said he agrees with the listed items, and added the applicant is willing to
omit any items the BOCC may be concerned about.
Mr. Jiricek stated that, in the future, property owners and County staff may change and he
requested the language be very specific as to the intent for this application. In response to Mr.
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Jiricek, Commissioner Rademacher said this request may not be necessary, since the Planning
Director and the applicant both have the ability to bring the case back in front of the BOCC.
Regardless, Mr. Jiricek suggested adding a condition, so it is specific for this case.
Commissioners Long and Conway stated they agree with Mr. Jiricek.
Mr. Barker stated that in the Site Plan Review process, the Planning Director may waive the site
plan review requirement for commercial and industrial uses in a PUD upon the determination
that sufficient, detailed information was submitted and reviewed in the PUD Final Plan. He
added that the BOCC has never taken away the ability from the Planning Director to bring the
request back before the BOCC, and if the applicant comes back with a PUD Final Plan, you
wouldn't have to do both concurrently. He cited Section 27-7-40 of the Weld County Code
which says conceptual plans require a public hearing, which is geared more towards residential
uses. He stated this was a flaw, because staff didn't have any experience to go on, and he
recommended this condition be waived for the applicant, with the understanding that the
Planning Director still has the ability to bring it to the BOCC. Commissioner Rademacher added
that the process still allows the applicant to bring the request back before the BOCC as part of
an appeal process.
Chair Kirkmeyer stated there may be a few uses that cannot be administratively reviewed, or at
the very least, the Planning Director would need to consult with the BOCC prior to the
administrative review. Mr. Jiricek stated he just wanted to make it clear that the Planning
Director has the ability to bring any proposed use that may involve the public, to the BOCC.
Mr. Barker stated Mr. Jiricek is concerned about Section 27-7-40.D of the Weld County Code,
which says if the Final Plan does not comply with what is stated in the Change of Zone or the
sketch plan, the Planning Director can bring it to the BOCC. Mr. Barker commented this is a
very unique case, and he suggested modifying Condition of Approval #5.A to say, "Although this
Change of Zone application is not considered to be a "Conceptual Development Guide"for the
purposes of Sections 27-6-20.C. and 27-7-40.D.1. of the Weld County Code, the applicant shall
comply with the submittal requirements and meet all criteria for a Specific Development Guide,
including any information not a part of the Change of Zone Development Guide. At a minimum,
Sections 27-6-30 through 27-6-110 of the Weld County Code will be addressed in sufficient
detail." Mr. Barker stated this Section of the Code is not saying the applicant has to come back
to the Board, but it gives the Planning Director the ability to bring it to the BOCC, if it is deemed
the applicant is not in compliance. He added the request could be brought to the BOCC, but it
would not need to have a public hearing.
Mr. Harrison stated he has been through this application process twice, and both times he has
invited the public; however, no one has showed up to the meetings. Commissioner Conway
stated the applicant has invited the public, and this discussion isn't in reflection of the applicant,
but the Board is trying to avoid any unforeseen consequences.
Mr. Jiricek stated it is important the BOCC understands that if they are comfortable with the
first 39 uses, today's hearing would meet the public process requirement and they would not
come back before the BOCC. Chair Kirkmeyer stated that would be fine for now, due to the
location of the site. She added the injection well was not in the notice and the public process is
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important. However, if this request for an injection well was located in proximity of County
Roads 39 and 42, she would say no. Mr. Harrison said he went an extra ten (10) miles to inform
the neighbors, in fact some of them wrote letters in support of the project. He stated he is okay
with Bruce's verbiage recommending the change to the development guide and not waiving the
Planning Director's right to bring the issue to the Board of County Commissioners (BOCC) for
other reasons.
Chair Kirkmeyer stated there are a lot of people in the townsite of Carr, and once they hear an
injection well may be coming to the proposed site, the residents will be concerned about their
groundwater.
Mr. Otis inquired about criteria paragraph h, and recommended the deletion of the last two (2)
sentences. He also referred to Condition of Approval #5.A and stated he is asking for a waiver
of the Weld County Code regarding the eighty-acre outlot. Chair Kirkmeyer stated the Board
agrees with the applicant's requests, and will also add the verbiage Mr. Barker suggested by
adding Condition of Approval #7.F to state, "No eighty-acre agricultural outlot, as referred to in
Section 27-2-210 of the Weld County Code, shall be required to be preserved."
The applicant also requested a waiver on the landscaping. Chair Kirkmeyer stated there will be
no changes to the Resolution; however, the Board agreed with the request as instruction to
staff.
Mr. Otis referenced page 3, item #1 of his letter, dated March 16, 2011, marked Exhibit F, and
stated the first request is that the transmission lines inside of the PUD not be required to apply
for a 1041, on top of all the other requests, because it seems unnecessary. He also referenced
page 3, paragraph #2 of his letter and stated Section 21-2-20.D.2 allows for an exemption if,
"Any system, extension or project necessary to serve any subdivision or other use approved
under the zoning, subdivision or other land use regulations of the County as set forth in this
Code . . . which meets one of the following criteria." He stated there is no definition of what
"necessary" means. Mr. Otis added that the applicant found an ideal place in Weld County
where power, gas, electric, etcetera, connects together, but he needs these waivers to make it
work. He added if they don't receive the requested waivers, the project would be very difficult to
sell. He reiterated there are 33 conditions that protect the County, but the process is redundant
to existing policies and codes. Mr. Otis stated it is a discretionary item allowed by the 1041 to
waive it.
Mr. Barker stated Chapter 21 was set up for 1041 permits. He said the idea is that it is a site or
use that is designated as an area or activity of state interest. Mr. Barker stated it is not
appropriate to make waivers of 1041 requirements at the COZ process because specific uses
have not yet been identified. Mr. Barker added when a particular use comes in, Chapter 21 of
the Weld County Code may not even apply.
Mr. Parko stated most of the power will be used on the site, but the power still has to connect
with the grid. Mr. Parko stated he agrees with Bruce that the applicant should apply for a 1041,
since there are procedures which allow the request to come back to the Board, if necessary. In
response to Commissioner Rademacher, Mr. Barker stated if a 1041 application comes in, he
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will consult with the Board to determine whether Chapter 21 is applicable. In response to
Commissioner Long, Mr. Barker stated the applicant is asking for a waiver from the
requirements for a 1041 from Chapter 21 of the Weld County Code. He added that a 1041 is
different than a USR, because the proposed site is located in an area or activity of state interest.
Mr. Otis stated the applicant is not asking for 1041 waivers on all of the proposed uses, but he
wants the ability to connect these uses from lot-to-lot, and from use-to-use.
In response to Mr. Rademacher, Mr. Barker stated it is staff's responsibility to provide their
recommendations to the Board to determine whether the proposed use fits or does not fit, and
then respond to the applicant and inform them. Mr. Harrison stated if the proposed request is
approved today, they will have permission to build the following land use
items#1, #4, #5, #6, #7, #8, #18, #19, and #20, on the Niobrara Energy Park PUD — Allowed
Commercial and Industrial Uses Table, but as they learned about the 1041 requirement, they
will not be able to proceed, because these items will not be able to connect to the grid. He
stated that in order to move forward with the land use items listed above, he will need to apply
for a 1041 right away for land use item #50, which is a new substation over 115KV, he will need
item #51, which is the right to plug it in for the data center, and item #48 which is the natural gas
fired power plant to kick the entire project off. He stated he is not asking for financial incentives,
and is willing to pay the fees; however, he cannot build the site without the substation.
In response to Chair Kirkmeyer, Mr. Harrison stated they will not be transmitting energy outside
of the PUD. He stated they need to build the substation to connect to, and from, the various
energy sources. He stated Poudre Valley Rural Electrical Association, Inc. (PVREA) may or
may not be replacing their existing substation, but without the waivers listed above, this may not
happen.
In response to Commissioner Rademacher, Mr. Barker stated a 1041 does require a public
hearing. He added that Chapter 21 of the Weld County Code does not allow for a waiver of the
requirement for a 1041. He stated he does not think was fair for the County to have required BP
to get 1041 permits, which they complied with, and maybe there were some qualifications they
should have considered. Mr. Barker said at the COZ stage, it is inappropriate to determine
whether the proposed uses will or will not require a 1041, or to provide a waiver of the
requirement.
Commissioner Long stated he referred back to the Board's original discussions about adopting
the 1041 permits and about how it was going to affect the public; however, this situation and the
proposed uses are different than they thought. He stated he is okay with all three of the uses.
Commissioner Conway stated the purpose of the 1041 is to determine how the proposed use
will impact the surrounding properties (i.e., power lines going across people's property);
however, these uses are different because they will be internal and connect to an existing grid.
He inquired if they could delete these items. Chair Kirkmeyer stated that is why she inquired
about whether the electric will be used only within the PUD and it won't be. In response to Chair
Kirkmeyer, Mr. Harrison stated that the electric could be used within the PUD. He is not sure if
they need a 1041 for these three items in the first place. Chair Kirkmeyer said the Board does
not have the ability to determine whether a 1041 is required today; it may need to be determined
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at some point, but not today. In response to Commissioner Garcia, Mr. Barker stated when the
Board is asked whether the applicant needs a 1041 for a particular use, he will look at the Code
and the facts, and look at Chapter 21 to determine if any of the exemptions are applicable. He
added it is more of a deliberate process then what is being suggested by the applicant for
waiving it at a COZ.
Commissioner Long referred to an email received from Mr. Jiricek in reference to
Section 21-1-50 of the Weld County Code entitled Exemptions. Mr. Jiricek read Section C,
items #i and #ii, and inquired if this allows the Board to waive the 1041. He also stated it is a
key component as to whether electricity is only going to be generated for the site, with the
excess not being sold to the grid. In response to Chair Kirkmeyer, Mr. Barker stated "designed
capacity" would be if you have 115KV and you go up to 230KV, this would be expanding the
level of service beyond the designed capacity.
Commissioner Garcia moved to waive the 1041 permit requirement for the three items
discussed under #4.a, b, and c on page 2 of the letter, dated March 16, 2011, from Fred Otis.
The motion was seconded by Commissioner Long, which carried unanimously. Commissioner
Long stated that he supports the motion and said the project is so unique and not just to Weld
County, but to the country as well. He added that Weld County has the opportunity to create a
potential nationwide energy center for the west. Commissioner Long stated the County will have
uses that are unique to this proposed site, which will require the Board to examine the Code to
ensure if a similar project is proposed in a more populated area of the County, they will take
those considerations into account to ensure the public is impacted in a positive way. He
commented this is the perfect opportunity to create an epicenter for positive thought for energy
use and production.
Commissioner Rademacher stated he agrees with Commissioner Long on most of his points,
but he's still struggling with the waiver of the 1041 permit process, which takes the public out of
the loop. He stated if the public knew there would be a gas fired plant on the site, they may
have had some public input. He added the applicant may, or may not, need 1041 permits for all
of the proposed uses; however, there may be one or two uses that will require it. Commissioner
Long stated this request is a part of a public process right now.
Commissioner Garcia stated an inherent part of this project is to have interconnectivity and
usage, and because of Mr. Harrison's notification and the press coverage in the Greeley
Tribune, the public was notified and probably knew more about this hearing than the majority of
the hearings that come before the Board.
Chair Kirkmeyer stated she is still concerned about the substation. She said a 1041 is not
necessary as long as the hookups are within the PUD boundaries and it's for use for those
businesses within the energy park; however, when they actually become a public facility and
start transmitting energy off the site, then she has concerns with the fairness issue and the
public notice issue.
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Commissioner Conway stated he shares the concerns about limiting public input, but this project
has received an enormous amount of publicity, and is on the verge of creating a unique
opportunity for Weld County and, he doesn't want to risk it.
Upon a roll call vote to waive the 1041 permit process, the motion passed three to two, with
Commissioner Rademacher and Chair Kirkmeyer opposed.
Mr. Barker suggested language for the record regarding the three items; however,
Commissioner Conway indicated the language should be specific to the subject application to
avoid setting a precedent. Mr. Baker stated he would be able to incorporate the language Mr.
Otis suggested, as well as additional language throughout the Resolution referring to 1041
permits under Chapter 21 of the Weld county Code. Mr. Jiricek stated the changes also need to
be made to the table, and items #48, #50, #51, and #52 need to move up and be renumbered
after item #40. Chair Kirkmeyer reviewed the changes to the Conditions of Approval, with
instruction to staff to make the corresponding changes to the table.
No public testimony was offered concerning this matter. Responding to Chair Kirkmeyer,
Mr. Harrison indicated he has reviewed, and concurs with, the Conditions of Approval and
Development Standards, as proposed and modified.
Commissioner Conway moved to approve the request of Rawah Resources, LLC, c/o Niobrara
Energy Park, LLC, for a Change of Zone, PZ #1158, from the A (Agricultural) Zone District to
the PUD (Planned Unit Development) Zone District, with C-3 (Business Commercial) and 1-3
(Industrial) uses, open space, and continuing oil and gas production, based on the
recommendations of Planning Staff and the Planning Commission, with the Conditions of
Approval and Development Standards as entered into the record. His motion included deleting
the last two sentences from criteria paragraph h, modifying Conditions of Approval #2.P, #5.A,
and #6.H to include additional language from Mr. Barker's email dated March 17, 2011, marked
Exhibit G, and adding Condition of Approval #7.F as proposed by Mr. Barker. The motion was
seconded by Commissioner Long, and it carried unanimously.
Commissioner Long stated the applicant raised the bar so high, with the application being
researched and very well thought out. He added it takes great vision, including the right
resources, and the ability to bring it all together. He commended the applicant for going above
and beyond, and thanked him for bringing the project to Weld County.
Commissioner Conway stated Niobrara Energy Park is an exciting and transforming project for
Weld County. He also commended Mr. Jiricek, Mr. Parko and Mr. Ogle for their creativity
working with the applicant and willingness to go outside of the box. He stated this process was
a new experience and apologized the applicant had to go through such trial and error. He
proceeded to thank the applicant and Mr. Otis.
Commissioner Rademacher stated this project will put Weld County on the Map.
Commissioner Garcia added that David Thomas, UNC Professor from the Monfort School of
Business, recently spoke to the Board about transformational economic development, and this
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project definitely meets this criteria. He thanked all of the County staff and departments for
thinking outside of the box and working on this project.
Mr. Otis thanked Mr. Barker and the Planning Staff and indicated he's never spent so much time
working with staff on a project.
Chair Kirkmeyer echoed the comments of her fellow Board members. She said it is a great
project; the plane is built, and now it is time to get it landed. She commended all of the Weld
County staff.
There being no further discussion, the hearing was completed at 1:11 p.m.
This Certification was approved on the 21st day of March, 2011.
Clerks Note: (Various revisions were made and adopted by the Board of County Commissioners
on May 25, 2011, by Corrected Resolution #2011-0652.)
BOARD OF COUNTY COMMISSIONERS
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EXHIBIT INVENTORY CONTROL SHEET
Case PZ#1158 - RAWAH RESOURCES, LLC (NIOBRARA ENERGY PARK, LLC)
Exhibit Submitted By Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes dated March 1, 2011)
Recommendations for Site (Letter dated March 15,
D. Division of Wildlife 2011)
Niobrara PUD Energy Park PUD Allowed Commercial
E. Applicant and Industrial Use
F. Applicant Letter from Fred Otis (dated March 16, 2011)
G. Bruce Barker E-mail from Bruce with Verbiage
Certification RE: Notice of Mineral Interest Owners and
H. Applicant Lessees in PZ1158
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