HomeMy WebLinkAbout20111280.tiff HEARING CERTIFICATION
DOCKET NO. 2011-29.A
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW
PERMIT#1778 FOR A RECREATIONAL FACILITY (WATER SKIING LAKE AND
CAMPSITE FOR WATER SKIING MEMBERS, ALONG WITH COMMERCIAL HUNTING
ON A FEE BASIS) IN THE A (AGRICULTURAL) ZONE DISTRICT — ED ORR, CIO JIM
ROTH
A public hearing was conducted on July 6, 2011, at 10:00 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
County Attorney, Bruce Barker
Planning Department representative, Kim Ogle
The following business was transacted:
I hereby certify that pursuant to a notice dated April 15, 2011, and duly published April 20, 2011,
in the Fort Lupton Press, a public hearing was conducted on May 18, 2011, to consider the
request of Ed Orr, for a Site Specific Development Plan and Use by Special Review
Permit#1778 for a Recreational Facility (water skiing lake and campsite for water skiing
members, along with commercial hunting on a fee basis) in the A (Agricultural) Zone District. At
said hearing the Board deemed it advisable to continue the matter to July 6, 2011. Bruce
Barker, County Attorney, made this a matter of record.
Kim Ogle, Department of Planning Services, presented a brief summary of the proposal and
stated the Board of County Commissioners originally held a hearing on May 18, 2011, which
resulted in a continuance to July 6, 2011, and was subject to the following three (3)
conditions: 1) The applicants shall talk with the Poudre River Learning Center (PRLC) to work
on possible compromises for co-existence; 2) The applicants shall talk with the Central
Colorado Water Conservancy District (CCWCD) to come up with a compromise to make it a
win-win situation; and 3) The applicants shall meet with the Colorado Division of Wildlife
(CDOW) regarding the radius from the eagle's nest. He stated staff received an electronic mail
update from the applicants on July 5, 2011, which provided the status with the applicants'
discussions with the three (3) referral agencies. The message indicated on June 22, 2011, Ed
Orr and Jim Roth met with Mark Leslie and Brandon Muller from the CDOW, and since the
meeting, Mr. Leslie indicated he may be providing additional correspondence regarding the
eagle pair and the level of their adaptation, and as of July 6, 2011, they have not received any
further correspondence. According to Mr. Orr, the CDOW is unwilling to change the
recommendation of adjusting the radius at this time, and the Division is reluctant to evaluate
situations on a case-by-case basis. On June 22, 2011, the applicants also met with Randy
Ray of the CCWCD and Ray Tschillard of the PRLC, and they did not have any additional
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concerns, beyond what was discussed at the May 18, 2011, meeting. At this meeting Mr. Roth
offered to plant a hedge along the eastern boundary of his property to screen the proposed use
from the PRLC, and he stated the root systems from the hedge will also protect the shoreline
from erosion. However, the CCWCD and the PRLC have not indicated whether this solution is
acceptable. Mr. Ogle stated staff received a voicemail and phone call this morning from
Mr. Leslie who indicated, after further discussions, the CDOW stands by the referral as
submitted. Mr. Ogle stated staff has not had any further conversations with the PRLC or the
CCWCD.
Mr. Orr, applicant, discussed the history of the eagle pair and displayed a short video, which
identified the location of the eagles at various distances, and at one point in time, one (1) of the
eagles landed within approximately 200 feet from the person shooting the video. Mr. Ogle
displayed an aerial map of the site and Mr. Orr identified the locations of the lakes on the
property and the eagles' nest, which is located in the center of the yellow circle. He stated the
red circle identifies the setback recommendations from the CDOW, which is 2,640 feet, and the
yellow circle is the recommendation from the U.S. Fish and Wildlife Service, which is 330 feet.
Mr. Orr referred to the Bald Eagle Conservation Measures, provided by the U.S. Fish and
Wildlife Service, marked as Exhibit LLL, which recommends motorized traffic and watercrafts
not be operated within 330 feet (100 meters) from the nest. He asked the CDOW where the
2,640 feet/one-half mile radius originated, and the Division stated Colorado is making more
open space than other parts of the country. Mr. Orr added, in his opinion, a one-half mile
boundary in a wilderness area makes sense; however, he believes an area, such as this site,
should be evaluated on a case-by-case basis, and he is uncertain why the Division is reluctant
to do so. He stated there is a pair of bald eagles at Barr Lake State Park in Brighton, Colorado,
and there is a nature/viewing center for visitors located within one quarter of a mile from the
nest (Exhibit WW), and boats are operating on the lake within the setback requirement from the
CDOW. Mr. Orr referred to the red circle on the aerial map and identified the locations where
the Board recently approved gravel mining in the area, the location where Vestas is conducting
industrial work and storing blades within the area, the Poudre River Trail, and County Road
right-of-way which is also located within the 2,640-foot boundary. He stated, in his opinion,
the 330-foot boundary, proposed by the U.S. Fish and Wildlife Service, is reasonable; however,
the 2,640-foot boundary proposed by the CDOW is unacceptable.
Mr. Orr stated the PRLC has indicated the proposed use of twenty-five (25) members on the
site's 250 acres is more intense than 14,000 students on the Center's sixty (60) acres. He
referred to a copy of the schedule for the PRLC (Exhibit MMM) for the months of April 2011,
through October 2011, which indicates few events are scheduled at the facility on the
weekends, and that is typically when the use of his site will occur. Mr. Orr added, on
June 22, 2011, they met with the CCWCD, which offered no new objections; however, they
agreed the western and middle lakes are not eroding and the easement agreement that allows
them to store water in those lakes is still in effect. Mr. Orr stated he has proposed for screening
along the eastern boundary of his site, his landscaper has estimated it will take approximately
twenty (20) to thirty (30) hedges to absorb as much water in a day as one (1) cottonwood tree.
He believes this solution may mitigate several of the concerns from the CCWCD and PRLC, it is
an item that would need to be agreed on by all parties, and he recommended it be a Condition
of Approval. Mr. Orr further stated the Eagle Lakes Boating Club is limited to twenty-five (25)
members recreating on 250 acres with 100 surface acres of water, with one (1) boat operating
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on the lake at a time, and he inquired if this use is more intensive than the surrounding uses,
which include gravel mining, Vestas blade storage, other industrial uses, and the PRLC. He
also asked the Board if Weld County wants to be responsible for regulating the easement
agreement between CCWCD and himself, or whether the Board should condemn this property,
based on a decade old recommendation of a 2,640-foot setback from the eagles' nest. In
response to Commissioner Garcia, the one quarter of a mile boundary he referred to earlier at
Barr Lake State Park is approximate, and he referred to an article in the Commerce City
Sentinel Express (Exhibit WW) regarding the eagles at Barr Lake State Park, dated March 30,
2011.
Chair Kirkmeyer inquired if there was a representative from the CDOW present at the meeting
and no one was present. She opened the public hearing and stated the Board is open to any
new comments and notified the public if anyone emailed letter(s) of concern to the
Commissioners, they have been included in the public record.
Randy Ray, Executive Director for the CCWCD (Central Colorado Water Conservancy District),
stated he was present on behalf of the Board of Directors and indicated he did not attend the
meeting held on May 18, 2011, and wanted to clarify a few items. Mr. Ray provided background
information about the District, which has approximately 1,200 wells in augmentation plans and if
those contracts were at 100 percent allocation, the water would fully irrigate 52,000 acres of
land. He stated the District has many different types of water supplies used to replace well
depletions that affect senior water right holders, including gravel pit reservoirs. Mr. Ray stated
the District gave Hall-Irwin money and tried a new technology called slurry wall, which is used
for retaining water storage. He indicated Seibring Reservoir holds approximately 1,800 acre
feet of water and it is considered a 1987 water right, which is valued at approximately fifty (50)
to one-hundred (100) million dollars worth of water rights. Mr. Ray stated Seibring Reservoir
was the first lined reservoir, liner standards began with this reservoir, and he indicated all of the
lined gravel pits in Colorado must pass a set of liner criteria and be maintained to standards.
He further stated the District looks at the storage easement as a property right and when Mr. Orr
purchased the property from Mr. Hall, it was understood there was a property right within the
easement, and there is a gray area that Mr. Orr indicated may be litigated; however, that is to be
determined. Mr. Ray stated a percentage of the 1,200 wells the District augments depend on
the water supply from the Seibring Reservoir. He explained the slurry wall prevents
groundwater from coming into the Reservoir and keeps water from leaving the reservoir at the
groundwater level. Mr. Ray stated when mining is completed at a site, there is supposed to be
a minimum of a three (3) to one (1) slope backfilled against it, which will create a wedge of
pressure to keep the slurry wall intact; however, if the soil is eroded or removed, there is the
likelihood the slurry wall will breach and cause failure, and this is why the District is concerned
about the erosion at this site. He indicated CCWCD has invested money in the shoreline sock
for stabilization of the shoreline, but with the constant wave action, the water has come over the
socks and drawn the soil back into the reservoir. Mr. Ray referred to the June 22, 2011,
meeting with Mr. Orr where it was agreed the rooting of some plant species will help with
stability; however, the District is concerned about how much water will be consumed and
whether the rooting system will penetrate into the slurry walls. He requested an opinion on the
matter, via electronic message, from Darren Ault Engineers in Longmont, which provides the
engineering for District regarding gravel pit storage and designs slurry walls; however, he has
yet to hear a response. Mr. Ray stated since the meeting on June 22, 2011, he has visited with
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several of the District's Board members and he stated it will not be an issue for them to meet
with Mr. Orr to work on a solution, but there was not enough time prior to today's meeting. He
further stated CCWCD informed Mr. Orr there has not been an issue with shoreline degradation
on the western reservoir and the District is also concerned about water quality and the potential
for zebra mussels. At the same meeting, Mr. Ray stated Mr. Orr indicated many of the boats
who have used Seibring Reservoir have recently visited state facilities where inspections are
performed, and if Mr. Orr wants to address this further, he can take precautions from keeping
them from infiltrating the waters, and protect the CCWCD in case the water does become
infiltrated by the zebra mussels. In summary, Mr. Ray stated the District recommends denial of
the proposed request as-is; the District feels they have a vested property right and there is a
large number of people downstream who depend upon the Seibring Reservoir's livelihood. He
submitted eight (8) photographs of the reservoir into the record, marked Exhibit GGG.
In response to Commissioner Long, Mr. Ray stated the District has water rights from other
reservoirs along the Cache La Poudre River, and they have six (6) to seven (7) other gravel pit
storage facilities in Weld County on the Cache La Poudre River, Thompson River, Boulder
Creek, etcetera, and none of those facilities have recreation with any watercraft on them. He
further stated the District's main goal is to provide replacement supply for irrigation wells, so
they entered into agreements with Hall-Irwin Construction, where they would end up with the
water storage easement. Mr. Ray indicated in the mid 1990's, Weld County did sell the Koenig
Gravel Pit to the District, which owns the rights and fee title, and there are no activities on it. In
response to Commissioner Long, Mr. Ray stated he and Mr. Orr acknowledged that every
reservoir is going to see some type of shoreline erosion, due to nature; however, he has
operated the facility since the early 1990's and over the last few years, the erosion has been
magnified. It is Mr. Ray's interpretation the erosion has been caused by the wakes from the
boats; however, the District does not have any data to support this. In response to
Commissioner Conway, Mr. Ray stated it is his understanding that the zebra mussels are
attracted to iron and between each of the reservoirs are iron pipelines that convey water, and if
those pipelines and the pump station were to become clogged, it would create a transfer
problem to get the water downstream to senior water right holders. Mr. Ray added that he has
personally overseen this facility for approximately eighteen (18) years and has noticed an
increase in erosion, particularly since the boating started. In response to Commissioner
Rademacher, Mr. Ray stated there is no watercraft on any of the other reservoirs, other than
Jody Reservoir, located west of Windsor, and the La Poudre Pit, located on the western
boundary of Windsor and is part of the Frank Easement/State Wildlife Area. The River West
Subdivision Homeowner's Association owns the recreational rights for Jody Reservoir and
allows pedal boats on the water; and Mr. Ray has never seen a boat on the La Poudre Pit;
however, they are not restricted. In response to Commissioner Rademacher, Mr. Ray stated
the District does not have the recreation rights for any of the reservoirs; however, the District
does have the right to walk away from a facility if they do not like the way it is being handled. In
response to Chair Kirkmeyer, he stated the District does have an obligation to ensure a certain
level of water is maintained at some reservoirs, but not at Seibring Reservoir. In response to
Commissioner Rademacher, he stated the Board of Directors has a vegetation plan and has
budgeted several hundred thousand dollars to remove the trees around the perimeter of the
reservoirs to prevent them from absorbing the water. Mr. Ray added anyone can boat on any of
the District's lakes, unless it is specifically listed in the covenants, and he clarified the District
has no control over the boats or where they come from. He added that the District's easement
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indicates the use of the property shall not be incompatible with water storage, and it is included
in the Easement Lease, although, the District has not experienced any bank degradation as
severe as Sebring Reservoir. In response to Chair Kirkmeyer, Mr. Ray stated the Hall's did
water ski in the reservoir, and there was some language that stated this site may be a
commercial area someday; however, it was his understanding is this property was not
contemplated to be a commercial venture, which is not considered on any of the District's
reservoirs. In response to Commissioner Long, Mr. Ray stated the District does have the ability
to remove any of the trees at the site, and they have contemplated whether to remove the living
trees, since the trees the eagles nest in are dead. Commissioner Long clarified the District has
the right to remove potential living sites for the eagles. Chair Kirkmeyer inquired if the District
needs to go through the CDOW to remove the trees. Mr. Ray stated at one point in time, the
District asked Hall-Irwin to clean-up the west lake and they left a lot of material at the bottom of
it and they were told they could only access the site during certain months due to the eagles.
Chair Kirkmeyer clarified it may be part of the Mining/Reclamation Permit received from the
Colorado Department of Natural Resources. In response to Chair Kirkmeyer, Mr. Ray stated
they will check with the appropriate entities before they proceed with removing any trees. In
response to Commissioner Conway, Mr. Ray reiterated the District has seen more degradation
on this lake than the others and, in his opinion, it is due to boating. Commissioner Long noted
the eastern lake boundary is straight in comparison to the contours of the other lakes, and he
was uncertain whether this would contribute to the degradation of the lake.
Ray Tschillard, Director of the PRLC, thanked the Board for listening to their concerns and
stated they met with Mr. Orr and Mr. Roth, as well as the CDOW and CCWCD; however, the
meeting did not mitigate the Center's concerns. He indicated the PRLC is known as the "Crown
Jewel" of the community and was built by thousands of Weld County residents who donated
their time and contributed financially to the trail and relocation of the Hazelton School; in the
future, the trail will extended from Island Grove to Denver. Mr. Tschillard stated the proposed
use is detrimental to the PRLC due to the following: 1) impact on educational opportunities
offered on the property of the Learning Center, 2) disturbances to the natural setting and wildlife
habitats, which will affect the educational value of the property, and 3) destruction of the PRLC
rights, including the degradation of the eastern shoreline of Seibring Reservoir, which will have
detrimental impacts on student learning and the degradation of the PRLC's learning lakes
quality, which is connected to the Seibring Reservoir. For these reasons, Mr. Tschillard stated
the PRLC believes the use is incompatible and recommends denial of the proposal.
Paulette Weaver, Assistant Director and Director of Curriculum for the PRLC, stated before the
Center was built, the goal was to provide quality, hands-on environmental education to help
young students utilize critical thinking for decision making as they grow to become productive
citizens. She stated the Center works with teachers to develop a set of activities for field trips,
that meet the needs of each group, while keeping connections to the state standards.
Ms. Weaver indicated many of the students have few opportunities to get out and experience
open space in a natural environment and the Center's goal is to have field trips become an
integral required part of the curriculum for students at several grade levels to enable them to
grow from multiple experiences. She stated the impact of the students on the environment is
minimal, in comparison to the affect on the student's scientific understanding. Ms. Weaver
stated a disturbance in the ecology will cause significant changes in the habitat, adversely
impacting learning for the thousands of students who use the PRLC each year. She stated that
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the changes the proposed use would have on the habitat makes it incompatible with the prior
uses in the area. Ms. Weaver stated the students have been taught to be respectful to the
environment, and they have also had a significant impact on the reclamation of the property,
including taking part in planting shrubs and weed control. She further stated the Center
occasionally has people who rent the facility for the weekend; however, the site is primarily
utilized during the weekdays. Ms. Weaver referred to a letter from Bruce Bruderius, current
School Board Member for District 6, which stated the PRLC was a collaborative effort and a
unique investment for an environmental outdoor learning center for students with hands-on
learning in a natural setting and wildlife habitat. The letter also indicated the PRLC is a valuable
learning preserve for current and future generations. Ms. Weaver stated although she realizes
the property rights of both parties need to be respected, the proposed use is not compatible with
the existing uses of the PRLC and the Poudre River Trail. Commissioner Long inquired if there
is a more compatible use the PRLC would prefer to see west of the property. In response to
Commissioner Long, Ms. Weaver stated she personally enjoys the open space and there are
other uses which may be more appropriate, including the running of cattle or possibly the day
use of Mr. Orr's property without the boats. She clarified her previous statement was her
personal opinion and it was not made on behalf of the PRLC. In response to Commissioner
Conway, Ms. Weaver referred to the schedule of activities for the PRLC submitted by Mr. Orr
and stated the Center does not have activities scheduled for every weekend; however, there are
events held many of the weekends. In response to Chair Kirkmeyer, Ms. Weaver stated the
website calendar is updated on a regular basis. Commissioner Conway stated the majority of
the events at the Center appear to be scheduled during the week and inquired if the PRLC tries
to minimize the number of activities on the weekends. Ms. Weaver stated if there is a staff
member who is available on the weekend, they can schedule an activity for that date; however,
the majority of the activities do occur during the week, except for the City triathlon.
Bill Hoyt, Secretary of the Board for the PRLC, stated there has been a rising demand for
wildlife viewing, and in order to meet this need, wildlife must be present and free from excess
disturbances in and around the PRLC. He stated a respected and protected habitat provides
visitors with a safe access to easily view wildlife, and in order to meet this need, the proposed
use must contain an enforceable long-term plan setting standards for the impact to the
surrounding wildlife with limited disturbances. Mr. Hoyt stated his concerns about the eagles at
the property and stated at Barr Lake State Park, boats are not allowed within a one-half mile
radius of the eagles and he requests the same criteria be applied to the subject site from the
months of October to July. He stated Colorado Law requires the Board to enforce the CDOW
regulations for active Bald Eagle nests, which states, "No surface occupancy beyond that which
historically has occurred in the area within a one quarter mile radius of active nests, and
seasonal restrictions to human encroachment within one half mile radius of active nests from
October 15 through July 31." Mr. Hoyt stated at the June 22, 2011, meeting with the CDOW,
Mr. Orr threatened to sue the State, which shows his lack of concern for the surrounding
property owners or for the economic impact the eagles can have on Weld County tourism. He
stated the PRLC has plans to install a webcam at the quarter mile limit with a long lens that will
be available to view twenty-four (24) hours per day, seven (7) days per week, and asked the
Board to consider the potential value it will have for the area. Mr. Hoyt further indicated his
concerns with water quality and the potential threat of zebra mussels, which can destroy entire
regions and cost taxpayers money to remedy the issue. He stated the PRLC requests a written
obligation to accommodate any Use by Special Review Permit, which would require Mr. Orr to
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mitigate the presence of any zebra mussels at the PRLC's learning lake. Mr. Hoyt stated the
four (4) lakes are a single system, since they are all connected, and any pollution from any
human activities at the west lakes will create damage to the PRLC's learning lake and the
educational resources it can provide to the students. He stated the proposed use will disrupt
the activities at the center by allowing hunting, boating, waterskiing, associated noise and
parking, campers, etcetera. The PRLC understands Mr. On has planned to reduce the number
of campsites to 25, but he has yet to see the details and he is concerned about the potential
flooding of the PRLC if the slurry wall is breached. He stated if the proposal is modified to
reduce the number of campsites to twenty-five (25), he inquired whether there will be a limit to
the number of people, cars and RV's allowed per site, whether people would be allowed to live
at the site, and if there are plans to remove trash, provide running water, etcetera. Mr. Hoyt
stated there are too many questions about this proposal, even with the decrease in the number
of campsites. Commissioner Conway inquired why the radius distances recommended by the
U.S. Fish and Wildlife Service and the CDOW are different. In response to Commissioner
Conway, Mr. Hoyt stated he is not a representative of the State, but he believes the State has
the ability to create their own interpretation of those regulations, and he is uncertain about how
that was determined.
Mr. Tschillard recommended the Board deny the original proposal, as well as the modified
proposal and insisted, at a minimum, a full review from the Planning Commission be
considered, and all issues be publicly reheard before a recreational use is permitted. In
response to Commissioner Long's recommendation, Mr. Tschillard suggested the creation of a
long term educational use by creating a coalition that would negotiate the purchase of Mr. Orr's
property; he stated this would help develop a long-term plan for habitat protection and
educational grants for more schools for future generations. He stated this is also an opportunity
for the Board to support cultural tourism, local education and community development, and he
encouraged the Board to make the right decision so fifty (50) years from now, the community
can look back with gratitude at the wisdom they exhibited today.
In response to Chair Kirkmeyer, Mr. Tschillard identified the shoreline the PRLC owns on the
map, which is located on the eastern side of the Seibring Reservoir and is now underwater, due
to erosion; and if there was a legal agreement proposed for the shoreline it would include that
the hedges planted by Mr. Orr on the eastern boundary of the lake be maintained in perpetuity.
He added the PRLC has an understanding with CCWCD that they remove any trees over two
and one half (2 1/2) inches in diameter at waist height. In response to Chair Kirkmeyer,
Mr. Tschillard stated the PRLC does not have any legal agreements in place at this time, and
they would need more time to continue these types of negotiations. He added the land was
donated by the Hall-Irwin Corporation to the Poudre River Trail Education Committee in 1997,
and when the PRLC was developed it was understood it was in the A (Agricultural) Zone
District, and there are uses, such as cattle grazing, that are allowed by right. In response to
Commissioner Garcia, Mr. Tschillard stated the camping and parking rules were discussed
minimally at the June 22, 2011, meeting; however, they did not get that far in negotiations. He
stated the PRLC appreciated the historical use of the property when the Hall's owned it, but
Mr. Orr's proposal is not going to work. Mr. Tschillard indicated he briefly met with Mr. Orr at
the end of the meeting on May, 18, 2011, and both parties indicated they were going to be out
of town for a while, and June 22, 2011, was the first day they were both available.
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Alan Ackerman, Greeley resident, stated the video displayed by Mr. Orr appeared to be a
violation of Colorado law, since nine (9) months of the year Bald Eagles cannot be approached
within a one half (1/2) mile, and the remainder of the year they are not to be approached within
one quarter (1/4) of a mile, and the fine for that is up to $100,000.00, per Colorado Statutes.
Mike Ehrlich, Ft. Collins resident, commended the Board for the opportunity to speak and
referred to Commissioner Long's statement at the previous meeting suggesting the PRLC look
into purchasing Mr. Orr's property. He stated he is a property rights' advocate and he indicated
the subject property went up for sale after the PRLC was formed, and if the Center was
concerned about surrounding land uses, they could have offered to purchase the property at
that time. Mr. Ehrlich also referred to a previous comment about how the prior mining at the site
did not appear to bother the eagles, and he stated the eagles have shown their resilience by
rebuilding the nest in the same area with boating and hunting on the site, and by raising two (2)
eaglets. He stated the Eagle Lakes Boating Club wants to coexist with the PRLC and he does
not see why they cannot reach a compromise. Mr. Ehrlich added that a private lake, which
allows one (1) boat on the lake at a time, is more appealing than taking his children to boat on
public waters, which is too dangerous.
Brian Haas, member of the Eagle Lakes Boating Club, stated Mr. Orr is doing the community a
service by taking boats off public lakes, since boating on private lakes is safer. He referred to
2009 Accident Statistics provided in the 2011 Colorado Boating Statutes and Regulations,
marked Exhibit OOO, which indicate that in 2009 there were 111 reported accidents in
Colorado, fifteen (15) of those accidents resulted in death, seventy (70) people were injured,
which is a 13.5 percent chance that if a person is involved in one of those types of accidents, it
could be fatal. He stated based on these statistics, there is a 63 percent chance of being
injured, and if the two (2) are combined, there is a 76.6 percent chance of dying or being injured
on a public lake in Colorado. Mr. Haas stated he loves boating and wakeboarding; however, he
does not feel comfortable on public lakes. He referred to a boating accident he was involved in,
when he was seventeen (17) years old, where a friend of his was hit by a boater who was
operating his boat under the influence of alcohol. Mr. Haas further stated public lakes are
over-crowded and not policed very well, and out of the one hundred and eleven (111) accidents
in 2009, thirty (30) percent of them involved alcohol. He indicated he had a civil engineer and
environmental water engineer visit the site to assess the erosion at all three (3) of the lakes and
the findings were similar to what the CCWCD found. They indicated they did not find any
evidence of erosion on the west lake, and on a scale of one (1) to ten (10), it was considered
nothing to one (1), and the middle lake had a similar results. However, on the east lake, they
did see the damage to the shoreline; however, in their opinion it was not due to boating, as the
lake has rarely been used for boating. He added the engineers ran a fully weighted wake board
boat on all three (3) of the lakes and analyzed the wakes hitting the various banks and it was
their opinion, the erosion on the eastern shoreline of the lake is caused by wind erosion and not
by the boat wakes. Mr. Haas referred to a report from the Raptor Research Foundation entitled,
"Bald Eagle Response to Boating Activity in North Central Florida," marked Exhibit PPP. He
briefly summarized the study, which was conducted on three lakes, and indicated that boating
activity reduced the number of eagles using the shoreline on only one (1) of three (3) lakes
studied, and it did not influence the flush distance and increased the distance perched from the
shoreline by only three (3) meters. He stated at this time there is no evidence that recreational
boating negatively affects eagle use of the lakes. Mr. Haas further stated the PRLC has
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indicated they have over 14,000 visitors per year and even draw visitors from around the world,
which is significantly more intense than the proposed use. He stated from his experience, the
parking lot is full of cars and there is a lot of activity at the PRLC, which seems to create more of
an impact on the site, than people enjoying the lake on a weekend for recreational uses.
Mr. Haas indicated he respects the activities of the PRLC and inquired why they cannot do the
same, as well as respect the rights of the property owner. He stated before a boat is allowed on
a public lake in Colorado, it has to be inspected for zebra mussels prior to entering the water
and after exiting the water, and it does not make any sense for anyone to travel with the extra
weight of water in their boat, due to high gas prices. Mr. Haas stated when boats are originally
taken to the site in May, they have been winterized, which is the process where RV coolant is
run through the boats' systems killing any mussels; therefore, the claim that mussels will get into
the water system is almost impossible. He also stated that once many of the boats arrive to the
site, they will be parked at the lakes from May to September, and they do not leave the facility.
He thanked the Board for the opportunity to speak.
Jim Roth, Lessee, stated he spoke to Mark Leslie, CDOW, and Peter Plage, U. S. Fish and
Wildlife Service, and they informed him the suggested buffer zones/radiuses are simply
guidelines, and seldom is it exactly like it reads in the Colorado State Regulations. He stated
the Poudre River Trail runs adjacent to an existing eagle nest located west of Windsor on the
Frank State Wildlife area, and when he visited the area this morning, there was more activity
there than the proposed site, the eagles are doing well, proving cohabitation with eagles is
possible. Mr. Roth indicated when he started the boat club and guided hunting service, it was
never his intent to harass or bother the quality of life for the eagles and he will continue to treat
them with respect. Mr. Roth stated he has come across an abundance of articles that show
eagles can cohabitate with humans and similar situations exist all over the United States. He
stated many of the states have taken steps to adapt to the buffer zones to fit the eagles, as well
as, accommodate the humans. He further stated many of the State guidelines for watching
wildlife recommend humans stay in their vehicles, since vehicles are less likely to disturb the
birds. Mr. Roth indicated at Barr Lake State Park, visitors are asked not to stop along the street
adjacent to the eagle's nest and refrain from getting out their vehicles, which is a similar
situation as the proposed site. He stated the U.S. Fish and Wildlife Service is willing to stick
with what has historically worked for eagle nests and they will not follow suit with what other
states are doing. He asked the Board to take his comments into consideration and stated he is
committed to do a good job of managing the club to make it work with the eagles.
Tannis Bator, Greeley resident and former educator, stated the decisions made today should be
based on looking forward seven (7) generations from now. She stated the community needs to
preserve a natural habitat for residents to enjoy now and in the future. Ms. Bator referred to a
book entitled, "Last Child in the Woods," by Richard Louv, which states if we, the people, do not
hug these types of environmental areas, we will not know how to treat nature now, or in the
future.
Kathryn Hoyt, Greeley resident and teacher, stated she takes students to the PRLC and she did
not attend the meeting on May 18, 2011, so she does not know if teacher's did have a voice;
however, she stated to her it does not matter if water damage were to occur at the PRLC on the
weekend or whether there are no boats operating at the site while the children are present, but
what matters is what happens inside of the lake, which is a huge part of what the students
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observe. She stated they do not have any other place to go and this is where they teach the
children about making decisions for the betterment of the community and there are many other
teachers who would support her statements. The public hearing was closed at 12:11 p.m.
Mr. Orr referred to Mr. Hoyt's comment about the potential for the PRLC to be flooded if the
slurry wall is breached, and he stated if something were to happen to the slurry wall, it will not
flood the PRLC. He stated the PRLC has indicated there are many unanswered questions;
however, he has provided the Center with the Eagle Lake Boat Club's Rules and Regulations,
which address many of the concerns heard today, and if any of the members are in violation of
any of the rules, their club membership is terminated and they do not get their money back. He
stated he does not believe there is a need to strengthen or change any of the Club's Rules and
Regulations. Mr. Orr indicated the fledglings have already left the eagle's nest and stated the
recommendation of the CDOW shall not be adheared to, since it goes out to July 31, 2011,
every year, regardless of when the fledglings have left the nest, and the one half (1/2) mile
setback does not take surrounding uses into account and should be changed.
In response to Commissioner Rademacher, Mr. Orr stated he grazes his own cattle on the site,
they have access to the lakes, and that is where they water. Commissioner Long stated he has
appreciated all of the comments and the new testimony in regards to this application and he
shares the concerns about wildlife. He indicated he was currently on a website with a webcam
displaying an active eagles' nest that currently has 11,000 visitors, and has had over 188 million
views. He stated this particular eagles' nest is located next to a subdivision, an operating farm,
and on the end of a fish hatchery, which is visited by school children on a regular basis.
Commissioner Long further stated over time, eagles are moving closer to urbanization and they
are learning to coexist with humans. He further indicated the Board recently had a request for a
similar facility and referrals were sent to the CDOW and no reply was received, and for some
reason the CDOW is not applying the same standards in a fair manner, which is a concern and
he is uncertain why they chose to enforce the radius on this proposal. Commissioner Long
stated the eagles have been coexisting on the site previously and he believes Mr. Roth and
Mr. Orr do not want to destroy the habitat, and sometimes the proposed uses will occur at the
same time as an event at the PRLC and sometimes, they will not. Commissioner Long stated
children have opportunities to learn at the PRLC, he has two children of his own, and they also
understand there are other coexisting uses. He stated there is an opportunity to allow property
rights to occur on one side of the fence and educational opportunities to occur at the same time,
and not be diminished on either side. He stated the degradation of the shoreline is between the
water owner and the storage vessel and he has seen multiple times where wind has been the
source of the erosion. He stated from his perspective and by seeing other similar situations, he
is in support of this proposal.
Commissioner Rademacher commended the public for attending the meeting and stated the
eagles have been present at the site for eighteen (18) years, and the mining, along with the
water skiing at the site, which has occurred at the lake since it was built, has not disturbed them.
He referred to Mr. Ackerman's statement that it is illegal for people to walk within a one
half (1/2) mile of the eagles, and if that is the case, then the entire Poudre River Trail is illegal,
since is also located within the one half (1/2) mile radius. He stated eagles in Alaska are as
common as blackbirds are here in Colorado and they nest along the shoreline and are used to
living on the pier, they are not afraid of people, and nothing seems to faze them. Commissioner
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Rademacher stated he does not believe the proposed use will faze the eagles any more than
what has been present on the site for the last eighteen (18) years. He stated he concurs with
Commissioner Long that the issue with the CCWCD is between two (2) parties and it is not at
the Board's discretion or purview. In regard to the zebra mussels, he reiterated that all boats
must be inspected prior to entering and exiting public lakes, and trying to enforce it on Seibring
Reservoir does not make sense. He stated if the proposed use is denied, water skiing will
continue on the property, regardless, since Mr. Orr and Mr. Roth have the right to hunt and
water ski on the lakes. Commissioner Rademacher further stated he is not in agreement with
the one-half mile radius from the CDOW, the federal standard of 330-feet is more appropriate,
and he is in support of the application.
Commissioner Garcia thanked all in attendance and commended the applicants for meeting with
the various entities. He stated he was appreciative of all testimony provided and it has been
included as part of the record. He commended Mr. Haas for providing the information about the
boating safety issues and the moving personal account. Commissioner Garcia stated he read
through the abstract provided by Mr. Haas and he summarized the contents, and stated the one
(1) lake that had the highest boating activity showed significantly reduced numbers of eagles of
all ages; however, it did indicate there was no direct correlation to the boating activity, and with
this study being conducted in 1988 and 1987, he is uncertain whether there have been any
more recent studies. However, the study did show boating activities can reduce and preclude
forage areas and those animals are resilient and find ways to cope with environment; however,
they do show avoidance behaviors, which was included in the study. He referred to Ms Bator's
comments about how the community needs to be at peace with nature and the testimony heard
from May 18, 2011, along with the testimony provided today from the private property owner
and the users of the PRLC. He stated there are inconsistencies between the CDOW and the
U.S. Division of Fish and Wildlife regarding the different setback radiuses and he is
disappointed in the way this has been handled. He thought a representative from the CDOW
should have been present at the meeting. He stated there seems to be some consistency with
the Barr Lake State Park rules, which allows visitors to observe the eagles from a gazebo
located one quarter (1/4) of a mile from the eagle nest, marked Exhibit NNN; however, the
article does not indicate how close a person can boat next to the eagles. Commissioner Garcia
further stated his concern about the impact on the agricultural water and if there is a loss of
water on these reservoirs, caused by erosion or clogging due to zebra mussels. He stated he
does not know the likelihood of zebra mussels; however, the possibility exists, and with those
unanswered questions, the impact on our agricultural community needs to be considered. He
stated one of the criteria the applicants need to demonstrate is that they have demonstrated a
diligent effort to conserve prime agricultural land in the locational direction for the proposed use,
and there is prime agricultural water that the Board needs to be stewards of, and there are too
many unanswered questions.
Commissioner Conway thanked all in attendance and stated everyone has been respectful of
one another and accommodating. He stated Mr. Hass provided horrific statistics about the
dangers of boating in public waters and the Board is aware of these concerns, and has, in the
past, approved such facilities when they have found them to be compatible. Commissioner
Conway stated he is a strong advocate of property rights; however, he believes activities on one
property cannot impact the property rights of the neighbors. He stated the impacts this proposal
would have on the PRLC and the possibility of introducing mussels into the water system is very
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PAGE 12
concerning, especially for the impact it may have downstream. He referred to Mr. Tschillard's
comment about the PRLC being considered the "Crown Jewel" of the Poudre River Trail. He
added he saw the project when it first came together in the 1990's and referred to a statement
from Ms. Weaver about how it took considerable resources to make this project a reality and it
was not easy; it took many donations, time, and effort from the people of the community, and
the Board has the responsibility to respect those efforts. He proposed the possibility for the
PRLC to work with the same resources that created the Center to see what they could do to
possibly acquire the property rights from Mr. Orr, which could be a win-win situation for all. He
further stated he agrees with the Planning Commission and finds that the proposed use is not
compatible.
Chair Kirkmeyer thanked all in attendance and stated the public is a very important part of the
process. She thanked the applicants and her fellow Board members for all of their hard work
and stated she appreciated the continuance, which allowed her time to visit the site. She stated
the reason they had the one (1) month continuance was to allow the applicants additional time
to get more questions answered and to determine if it would be possible to get some items in
place that could allow this use to coexist with the existing uses in the surrounding area. Chair
Kirkmeyer stated that, according to the Weld County Code, it is the applicant's responsibility to
show the requirements of the Code have been met. She referred to certain goals and policies
of Chapter 22 Comprehensive Plan, regarding wildlife, and stated this application is not
consistent or compatible with the existing surrounding land uses. She indicated the members of
the Board are advocates for property rights, and she agrees with Commissioner Conway that
private property rights do not allow for one person to diminish the property rights for the person
on the other side of the fence. Therefore, she cannot find anywhere in the Code where the
proposed use will be compatible and it will impact the educational learning opportunities for the
students, children and users of the facility from Weld County and other places, as well as, have
impacts to the shoreline and water quality of the lakes. She agrees the Board cannot, and
should not, get in between two (2) lease holders. She stated the Board cannot enforce the one
(1) boat at a time rule and there is no way to enforce the inspection of boats for zebra mussels
or whether they are winterized properly. Chair Kirkmeyer indicated there are a lot of people
downstream who rely on these reservoirs for the storage, augmentation, and replacement
supply, but there is a provision in the Code that says there must be adequate provision for the
health, safety and welfare of the inhabitants of the neighborhood and the County, and she
cannot find that this criteria has been met, even with all of the proposed conditions.
Commissioner Long stated this situation is the same as the USR they recently approved and he
is concerned with the issue of consistency and fairness. He stated the Board thought they had
sufficient measures to protect the water from zebra mussels, and today it's sounding like the
Board does not believe there is any way to protect waters from mussels other than state waters.
He stated the Board cannot do that and the lakes existed before the PRLC was there, and now
the Board is limiting the opportunities to exist at the lake. He stated the property rights for the
lakes existed before the PRLC, and it's not always who was there first, but in this instance, the
PRLC is stating their rights trump those of Mr. Orr.
In response to Chair Kirkmeyer, Mr. Orr stated he is concerned about Development
Standard #42, which states, "There will be no human encroachment of an active Bald Eagle
nest (i.e. camping, motor boating/water skiing, and the construction of a physical object
2011-1280
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HEARING CERTIFICATION - ED ORR (USR-1778)
PAGE 13
including oil and gas wells, and associated encumbrances) for a distance of one-half mile radius
from October15, through July 31, of any given year based on state and federal guidelines." He
stated if this is the case, there would be no water skiing allowed at the lakes since that boundary
encompasses all three (3) of the lakes. Mr. Orr stated the standard of 330 feet by the
U.S. Division of Fish and Wildlife Service is appropriate and he would agree to it.
Commissioner Rademacher stated that he also concurred with the federal guideline.
Commissioner Long motioned to amend the language of Development Standard #42 with the
verbiage that was provided to them by the U.S. Fish and Wildlife Service, marked Exhibit LLL.
Commissioner Garcia indicated he does not agree with the amendment and will not be
supporting the motion. Commissioner Conway stated he agrees with the amendment; however,
Chair Kirkmeyer stated there are exceptions to the 330 feet, and she wanted to make sure the
Board was aware of that. In response to Commissioner Long, Mr. Orr stated that the map
would be inserted in the Eagle Lake Boat Club's Rules and Regulations, and he would keep the
area off limits at any time. Upon a roll call vote, the motion carried three (3) to two (2), with
Commissioner Garcia and Chair Kirkmeyer opposed.
Chair Kirkmeyer went through all of the changes included in the Hearing Certification from
May 18, 2011, with the fifteen (15) changes to the Resolution, including the change made to
Development Standard #42, as reflected in the motion above. In response to Chair Kirkmeyer,
Mr. Orr stated he has reviewed, and concurs with, the Conditions of Approval and Development
Standards, as proposed and modified.
Commissioner Long commended the public and stated he is respectful of the educational
opportunities provided at the PRLC; he believes a similar application will come back before the
Board, and the issue with protecting the waters is another realm where the Board does not have
the ability to enforce on any of the other reservoirs in the County. Commissioner Rademacher
stated his concern about the lack of consistency with the radiuses and stated there is still going
to be boating on the lake, along with hunting, because the owner has the right to do that. He
stated the Board had the opportunity to mitigate the use and now they do not. He informed the
public, before they start calling in to complain about boats and hunting on the property, that the
owner has the right to do so on his property, and he feels an opportunity was lost here.
Commissioner Conway encouraged those who have testified in opposition of this proposal to
follow-up on the suggestion from Mr. Tschillard to meet with Mr. Orr and come up with a win-win
situation for all. He reiterated that Mr. Orr will have the right to continue boating and hunting on
his property; however, he will not have the opportunity to have a commercial operation on the
site, if this application is denied. He stated he thinks there is an opportunity for all of those who
have put all of their energy and efforts into this cause and encouraged them to meet with
Mr. Orr and see if he is a willing seller. He thanked Mr. Orr for following the Board's instructions
and reaching out to the various entities. Chair Kirkmeyer stated the proposed use is not
consistent with the County's Comprehensive Plan or compatible with the existing surrounding
land uses, and she does not see where there is adequate provision for the health, safety and
welfare of the inhabitants of the neighborhood and County.
Commissioner Garcia moved to deny the request of Ed Orr, Go Jim Roth, for a Site Specific
Development Plan and Use by Special Review Permit #1778 for a Recreational Facility (water
skiing lake and campsite for water skiing members, along with commercial hunting on a fee
basis) in the A (Agricultural) Zone District, based on the recommendations of the Planning
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HEARING CERTIFICATION - ED ORR (USR-1778)
PAGE 14
Commission. Commissioner Conway seconded the motion and upon a roll call vote, the motion
carried four (4) to two (2), with Commissioners Rademacher and Long opposed. There being
no further discussion, the hearing was completed at 1:11 p.m.
This Certification was approved on the 11th day of July, 2011.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, CO,LQRADO
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EXHIBIT INVENTORY CONTROL SHEET
Case USR #1778 - ED ORR, CIO JIM ROTH
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 May 3, 2011)
Ray Tschillard and
Richard Maxfield, Poudre Public Input from BOCC Meeting on May 4, 2011
D. Learning Center Photos of the Recreational Vehicles (RVs)
Ray Tschillard and
Richard Maxfield, Poudre Public Input from BOCC Meeting on May 4, 2011
E. Learning Center Aerial Map
Ray Tschillard and Public Input from BOCC Meeting on May 4, 2011,
Richard Maxfield, Poudre Article from the Greeley Tribune's Website
F. Learning Center (dated May 3, 2011)
Ray Tschillard and
Richard Maxfield, Poudre Public Input from BOCC Meeting on May 4, 2011,
G. Learning Center Article from the Greeley Tribune (dated May 4, 2011)
Christine Sallee,
H. Teacher E-mail of Opposition, dated May 3, 2011
Dr. Marsi Liddell,
President, Aims
I. Community College E-mail of Opposition, dated May 3, 2011
Ray Tschillard and
Richard Maxfield, Poudre
J. Learning Center Letter Requesting Accelerated Enforcement Action
K. Gary McCabe Letter of Opposition, dated May 7, 2011
L. Ed Orr, Applicant Letter Requesting a Continuance, dated May 10, 2011
M. Lee Watkins E-mail of Opposition, dated May 12, 2011
Kim Lawrence of
Lawrence, Jones, Custer
N. Grasmick, LLC Photos of the Subject Property
O. Vera and Cliff Kahl E-mail of Opposition, dated May 13, 2011
P. Danae Shipman Letter of Support, dated May 16, 2011
E-mail, dated May 16, 2011, and Updated Petition with
Q. Judy Firestien Additional Signatures
E-mail of Support, dated May 17, 2011, and an Exhibit
R. Jennifer Prall of an Online Poll Conducted by the Greeley Tribune
S. Jennifer MacGregor E-mail of Support, dated May 18, 2011
T. Planning Staff Changes to the Resolution
U. Not Sure Tribune Opinion, dated May 11, 2011
V. Kim Lawrence Flash Drive
W. Judy Firestein Petition
X. Lynn Casseday E-mail of Opposition, dated June 5, 2011
Y. Cindy Johnson E-mail of Opposition, dated May 18, 2011
Z. Stephanie Simmons Letter of Opposition, dated June 21, 2011
E-mail with new language for Condition of Approval
AA. Bruce Barker #2.H, dated May 18, 2011
BB. Erik Staub E-mail of Opposition, dated June 23, 2011
CC. Naomi Johnson E-mail of Opposition, dated June 30, 2011
DD. Julie O'Connell E-mail of Opposition, dated June 30, 2011
EE. Jean Vreeland E-mail of Opposition, dated June 30, 2011
FF. Jean and Dick Hoffmann E-mail of Opposition, dated June 30, 2011
Holly Bea-Weaver and
GG. Steve Weaver E-mail of Opposition, dated July 1, 2011
HH. Mary Ann Murphy E-mail of Opposition, dated July 1, 2011
II. Teri Romshek E-mail of Opposition, dated July 2, 2011
JJ. Dr. Robert King E-mail of Opposition, dated July 2, 2011
Marilynn &Wayne
KK. Harrison E-mail of Opposition, dated July 3, 2011
LL. Nicole Bishop E-mail of Opposition, dated July 2, 2011
MM. Ruth Firestien E-mail of Opposition, dated July 4, 2011
NN. Judy Firestien E-mail of Opposition, dated July 4, 2011
OO. Cindy Keesis E-mail of Opposition, dated July 5, 2011
PP. Dr. Marsi Liddell E-mail of Opposition, dated July 5, 2011
QQ. Gary Fentiman E-mail of Opposition, dated July 5, 2011
RR. Mark Larson E-mail of Opposition, dated July 5, 2011
SS. Terry Hunter E-mail of Opposition, dated July 5, 2011
TT. Kathryn Switzer E-mail of Opposition, dated July 5, 2011
UU. Terry Hunter E-mail of Opposition, dated July 5, 2011
VV. Lori Ozzello E-mail of Opposition, dated July 5, 2011
WW. Applicant Presentation Materials, dated July 6, 2011
XX. Tom Selders E-mail of Opposition, dated July 5, 2011
YY. William Hoyt E-mail of Opposition, dated July 5, 2011
ZZ. Lisa Evans E-mail of Opposition, dated July 5, 2011
AAA. LaRue Johnson E-mail of Opposition, dated July 5, 2011
BBB. Erik Staub E-mail of Opposition, dated July 5, 2011
CCC. Joyce Ackerman E-mail of Opposition, dated July 5, 2011
DDD. Lin and Gene O'Hara E-mail of Opposition, dated July 5, 2011
Recommended Buffer Zones and Seasonal Restrictions
EEE. Mark Leslie, CDOW for Colorado Raptors
FFF. Poudre Learning Center Compatibility Issues
Central Colorado Water Eight (8) Photographs and Map
GGG. Conservancy District
HHH. Nona C. Winder E-mail of Opposition, dated July 6, 2011
Ill. Susie Cowles E-mail of Opposition, dated July 6, 2011
JJJ. Ellen Meyer Gregg E-mail of Opposition, dated July 6, 2011
Laura Manuel and
KKK. Chris Clinton E-mail of Opposition, dated July 6, 2011
U.S. Fish and Wildlife Service
LLL. Applicant Bald Eagle Conservation Measures
MMM. Applicant Poudre Learning Center Calendar
NNN. Applicant Sentinel Express Article, dated March 30, 2011
OOO. Brian Haas 2011 Boating Statutes & Regulations
Bald Eagle Response to Boating Activity in
PPP. Brian Haas North Central Florida
QQQ. Clerk to the Board Draft Resolution —Added to the File for Minutes Clarity
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