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Home My WebLink About20092851.tiffBOARD OF COUNTY COMMISSIONERS COUNTY OF WELD, STATE OF COLORADO TRANSCRIPT OF PUBLIC HEARING IN RE: HEARING TO CONSIDER APPEAL REGARDING PROPOSED ROAD IMPACT FEE FROM INDEPENDENT FEE CALCULATION STUDY - SPICER RANCHES, LTD PURSUANT TO NOTICE to all parties in interest, the above -entitled matter came for public hearing before the Weld County Board of County Commissioners on September 14, 2009, at 915 10th Street, Greeley, Colorado, before Elizabeth Strong, Deputy Clerk to the Board, and TRANSCRIBED by Esther Gesick, Deputy Clerk to the Board and Notary Public within and for the State of Colorado. I HEREBY CERTIFY that the attached transcript is a complete and accurate account of the above -mentioned public hearing. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Esther E. Gesick Deputy Clerk to the Board 2009-2851 dentnt.t/0-.210- % /2.0756 2 APPEARANCES: BOARD OF COUNTY COMMISSIONERS William F. Garcia, Chair Douglas Rademacher, Pro-Tem Sean P. Conway, Commissioner Barbara Kirkmeyer, Commissioner David E. Long, Commissioner WELD COUNTY ATTORNEY OF RECORD: Bruce T. Barker APPELLANT'S REPRESENTATIVE: Tom Haren, AGPROfessionals, LLC ALSO PRESENT: Elizabeth Strong, Acting Clerk to the Board Kim Ogle, Planning Services Wendi Inloes, Planning Services Janet Carter, Public Works Monica Mika, Administrative Services 3 PROCEEDINGS 2 3 CHAIR GARCIA: That concludes our New Business. We'll 4 proceed to Planning. We have, uh, hearing number one: Consider 5 request for review of road impact fees - Spicer Ranches, Ltd. 6 USR-1633. Good morning Mr. Ogle. 7 KIM OGLE: Good morning. Kim Ogle, Department of 8 Planning Services 9 COMMISSIONER KIRKMEYER: -- if you'd give those, 10 actually, to the County Attorney, please. I1 CHAIR GARCIA: Are you ready Mr. Ogle? 12 KIM OGLE: I am thank you. Uh, Kim Ogle, Department 13 of Planning Services. Becky Meyring of Spicer Ranches Limited, 14 applicant for Spicer Arena, land use case number USR-1633, is 15 requesting consideration from the Board of County Commissioners 16 for an appeal to the transportation road fee assessment, uh, as 17 established by the Planning Department staff, and affirmed by 18 the Public Works Traffic Engineer. The appeal is outlined in 19 Section 20-1-340, which states, "A fee paid or affected by an 20 administrative decision of the Director of the Independent Fee 21 Calculation Study may appeal such decision to the Board of 22 County Commissioners by filing with the Director within ten days 23 of the written decision and notice." Staff recommendation 24 memorandum, dated September 14, 2009, um, highlights this case, 25 and you should have a copy of that electronically. Uh, some 4 1 highlights are: on December 3, 2008, Ms. Wendi Inloes, Planning 2 Coordinator, assessed the traffic impact fee of $33,517.65. The 3 fee was based on compliance with Table 20-1 of the Weld County 4 Code and information provided by the applicant on the use of the 5 building. On December 24th, Mr. Jacob Augustine, with Casseday 6 Creative Design, and Ms. Meyring's consultant at the time, 7 requested a re-evaluation of those road impact fees. Janet 8 Carter, Traffic Engineer, provided a response to Casseday 9 Creative Design addressing the items needed for the Independent 10 Fee Calculation and an explanation of the assessed road impact 11 fee. Public Works recommended that the arena be assessed 12 $509.00 per 1,000 square feet, for a total assessment of 13 $33,517.00. Uh, on August 7, 2009, Ms. Carter met with the 14 applicant's representative, Mr. Naylor and Mr. Haren of 15 AGPROfessionals, about the requirements of the independent fee 16 calculation. On August 10th, Ms. Meyring provided written 17 documentation of the contractual agreement, uh, to have AGPRO 18 act on her behalf, specific to the road impact fee. Uh, staff 19 received the independent fee calculation from Mr. Naylor on 20 August 10th, and on August 18th, Ms. Carter issued a memorandum 21 stating that the independent fee calculation was incomplete. 22 Department of Public Works determined that the applicant had 23 failed to satisfy the requirements of Section 20-1-330 of the 24 County Code for the following reasons: 1) the applicant failed 25 to rely upon general principals of impact analysis; and 2) the 5 1 data information assumptions used by the applicant, with the 2 impacts of the proposed use. Specifically Weld County Public 3 Works has determined that the submitted materials were not 4 prepared by a qualified traffic planner, or engineer, pursuant 5 to the accepted methodology of transportation planning or 6 engineering, and the independent fee calculation was not 7 calculated by the use of traffic count data, and there was no 8 summary of trip distribution anticipated for the project site, 9 nor was there analysis of the existing and future traffic 10 volumes for the immediate short term, up to 2015, and long-term II - up to 2035. The applicant relied on an average number of 12 vehicles per event, per year, which is not consistent with the 13 materials. Department of Planning Services is forwarding this 14 case for your review and determination as found in 20-1-340 of 15 the County Code, subsection b, which states, "The Board of 16 County Commissioners, after hearing, shall have the power to 17 affirm or reverse the decision of the Director of Planning. In I8 making its decision, the Board of County Commissioners shall 19 find written findings of fact and conclusion of law and apply 20 the standards of 20-1-330, as stated above. The Board of County 21 Commissioners reverses the decision; it shall instruct the 22 Director of Planning to recalculate the fee in accordance with 23 its findings. Department of Planning Services is recommending 24 that the Board of County Commissioners direct staff to accept 25 the methodology and findings developed by Weld County Public 6 1 Works for this independence fee calculation study. It is the 2 judgment of staff that these findings meet the standards of 3 Section 20-1-330 and the proposed fee of $33,517.65 is 4 consistent with the impacts generated from this case. Uh, Ms. 5 Carter is here to answer questions specific to her findings. 6 7 Yes. 8 9 10 CHAIR GARCIA: Thank you. Any questions for Kim? BRUCE BARKER: I think the appellant should go first - CHAIR GARCIA: Oh. BRUCE BARKER: - and then come back to Ms. Carter with Il her response. 12 CHAIR GARCIA: Very good. Thank you for providing us 13 insight into this Mr. Ogle. Hello Mr. Haren. 14 TOM HAREN: Good morning Commissioners. Thank you for 15 this opportunity. Tom Haren, AGPROfessionals, 4350 Highway 66, 16 Longmont. Uh, I believe you have the handouts. The facility is 17 about four miles northeast of Eaton, on 43 and 76. Uh, the 18 feedlot and farm have been there for thirty years. The roping 19 area was built in 2001, so its nine years old. Uh, the building 20 predates the January 1, 2003, County -wide road impact program; 21 the use has not changed. Um, the arena is an indoor riding 22 arena - various jackpots, roping, and such. The majority of the 23 people using the facility are participants in the event, not 24 spectators, and the USR limits the occupancy to 150 people. 25 There's no comparison in the County Code or the ITE (Institute 7 I of Transportation Engineers), as identified by Public Works in 2 their January 12, 2009, memo to the Planning Department; 3 however, Public Works compared the facility to either, an arena 4 or a church or theater. Now, in our review and discussion of 5 the IT, the use of the arena is in the nature of a Budweiser or 6 Pepsi Center. This is not that type of facility and should not 7 be classified as an arena as the Engineering Department 8 recommends. The only comparison to a church is that it is used 9 more during weekends. Other than that, as I will show later, 10 there's absolutely no comparison to a church. There's little or 11 no spectators; there's no grand stands for spectators. AGPRO 12 did have a traffic evaluation prepared, with the assistance of a 13 traffic engineer in Public Works. Using the team roping, we can 14 jackpot events, which is one of the maximum events. Um, peak 15 trips per hour, per unit, as the Code sets up, 1,000 square feet 16 was calculated to be 0.27 trips per unit. Um, in the IT trip 17 generation, the rate that most closely corresponds to the 18 calculated trip rate for the roping arena is mini warehouse, at 19 0.26 trips per 1,000 square feet, with a Weld County Road impact 20 fee of $333.00 per 1,000 square feet. The trip generation rate 21 for an arena, such as Budweiser or Pepsi Center, is 3.33 trips 22 per unit, which is over 12 times the trips of the roping arena. 23 We do not feel that is comparable. The church classification 24 for a building this size would allot 9,400 participants, 25 according to the Building and Fire Code - over 60 times the 150 8 1 person maximum occupancy in the USR. In 20-1-220.B, the 2 Director shall determine the fee on the basis of the fee most 3 applicable and comparable to the type of land use on the fee 4 schedule. Um, being limited to 150 people, this equates to 2.3 5 persons per 1,000 square feet. The National Fire Protection 6 Agency and Life Safety Code states the occupancy load shall not 7 exceed one person per seven square feet where the area of space 8 exceeds 10,000 square feet. That would allow for 142 persons in 9 1,000 square feet, thus, that is consistent with the 150 in the to USR. The occupancy of a theater or church would be 60 to 70 11 times allowed the rate that we are. They're not comparable in 12 occupancy, nor can they be compared in the impact on the roads. 13 The closest we can get to the Spicer Arena, based on what little 14 we have from the IT trip generation rate, is the mini warehouse 15 fee schedule, but on top of just looking at the traffic, there I6 is some precedence that the road impact fees are based on Ag 17 Commercial category for only the commercial portion of the 18 building, not the ag exempt portion of the building. Um, the 19 County has a road impact fee schedule as shown on Table 20-1. 20 Um, "The Director shall either look at the traffic generation, 21 or the comparable types of land use." Now, Public Works did 22 pick a number off the chart, but as far as looking at comparable 23 types of land use, or actually doing an engineering study, 24 neither was done. Uh, so County staff set the precedence 25 existing for the arena. Uh, we have some examples of the 9 1 precedence; we don't feel any strong precedence has been 2 presented. The transportation road impact fee for the examples 3 show either misapplication, or adjustment of fees or 4 classifications on all examples. None of the precedence has 5 been for an equine riding arena. So, the one that's, um, in 6 your hand out and on the screen, marked 2009, the County used 7 the mini warehouse fee for an Ag Commercial classification for a 8 calf confinement, which I am familiar with this facility. Uh, 9 we are told the County can't negotiate the fee, yet it appears 10 either something happened or this is just an inconsistency. In II addition, the square footage shown on the form was limited to 12 the maximum allowable for the Ag Commercial classification. Ag 13 Commercial only allows you to go up to 2,500 square feet, even 14 though this building was substantially larger. Uh, example 15 number 2, horse breeding facility - it was equine of nature, but 16 is not an arena - paid $1,120, approximately nearly 1/30th of 17 the fee of the roping arena, of which only 2,200 square feet of 18 the facility was used to apply the charge, although there are 19 more components to this facility. Uh, case number 3 - another 20 example presented as precedence by staff is a dairy parlor. 21 Now, there is a specific category in the Code for a dairy 22 parlor, but the road impact fee is determined based on the 23 commercial square footage of the facility and not the ag-exempt 24 portion of the dairy, such as the free stalls and holding area 25 of the milk parlor. An 8,000 square foot milk parlor on the 10 I dairy for 2,000 to 3,000 head is a road impact fee of $4,000; 2 one -eighth of the fee of the roping arena. Now, what's most 3 interesting in the precedence that was presented by staff after, 4 we were told, an exhaustive search, is not these inconsistencies 5 and presented examples, but what's missing from those examples. 6 I would assume the two examples of USR-1540 and USR-1393, uh, 7 the roping rodeo area, called Church Barn, on County Road 33 and 8 USR-1993 for Repels Arena, would be most comparable and 9 precedent setting, yet no fees have been assessed. The Church 10 Barn is for 45,000 square feet and a maximum occupancy of 350. 11 Repels Arena has no requirements for the Road Impact Fee in the 12 USR Conditions of Approval or Development Standards. Both of 13 these USR's were approved after the January 1, 2003, Road Impact 14 Fee was initiated, whereas, even though Spicer Arena was -- got 15 a Commercial USR after the fee, the building existing prior to 16 the fee. So, from Section 20 of the Road Impact Fees, the 17 definition of Ag Commercial indicates a facility having less 18 than 25,000 square feet of total floor space, Spicer is being 19 assessed on 65,800, so that doesn't even meet the Ag Commercial. 20 The facility does have, Spicer Arena does have approximately 21 3,200 square feet of what we would consider commercial area, 22 including office space, restrooms, concession areas, and 1,600 23 square feet of a children's play area. The remaining square 24 footage is agricultural, including a dirt arena, stalls, alleys, 25 pens, animal handling facilities, and tack rooms. If this were 11 1 an outdoor arena, with an adjacent building having the same 2 commercial facilities, the road impact fees would be based on 3 the square footage of the building housing the office and 4 commercial, and not the arena - we just have a roof over if. 5 Also, using what little precedence and data that is accurate, 6 this is the most consistent way we see in the Code and the 7 precedence to assess the road impact fee for Spicer Arena. 8 There is no basis in the Code IT or precedence with a 9 classification of change of use from private to commercial for a to nine year old building to pay $33,517.00 for a road impact fee. 11 The fee is based strictly on Ag Commercial and the square 12 footage of the building; no road impact calculations were 13 provided to my client to substantiate the fee being assessed; we 14 were only told that if the County were to actually calculate the 15 road impact fee, it would be even higher, so we should accept 16 what we have, and that's based on the arena assumptions and the 17 church assumptions, so -- The impact calculations provided by 18 the applicant were summarily discounted. Common sense would say 19 that this fee is extraordinary and unreasonable, but 20 unfortunately, the Code doesn't allow us to use common sense. 21 Not to mention there is no factual basis or precedent to uphold 22 this magnitude of fee. Um, what the Code does require us to do 23 is that you determine findings of fact. Um, the Commissioners 24 cannot negotiate a fee, although, I do find that ironic reading 25 the Home Rule Charter, but must make a written fact -- finding 12 1 of fact and conclusions of law. So the facts that I've proposed 2 to you, as presented here: 1) This structure predates the fee 3 and the use hasn't changed; 2) - as concurred by Public Works in 4 their memo - equine arenas are not in the Code; 3) Equine arenas 5 are not in the ITE. Church and theater arenas are not 6 applicable, Public Works determination is no applicable, no 7 precedence provided by the County, info provided as precedent is 8 inconsistent, there's no fee for the most prime examples that 9 would be comparable to this, and the fee based on the Ag 10 Commercial portion of the facility alone is the most applicable II and consistent. Now using the definition of Ag Commercial for 12 the, the uh, up to the maximum of the 2,500 square feet allowed, 13 would be a fee of $1,272.00, but there was an example where the 14 County went over that fee, uh, but even looking at that for the 15 3,200 square feet of commercial, the fee would be $1,628.00. 16 The Code directs Commissioners; you should reverse the decision 17 of the Director to instruct them to recalculate the fee in 18 accordance with your findings. Um, that's the way we feel, and 19 that's the way we see it. Spicer Arena has already deposited -- 20 In Kim Ogle's testimony, there was a gap between January and our 21 initiation into this project on August 7th, because our client 22 had already deposited $10,000.00 to Weld County, and since then, 23 minus $500.00 fee for this proceeding. We ask that the Findings 24 of Fact and limited precedence shown to instruct the Director to 25 recalculate the fee based only on the Ag Commercial portion of 13 1 the facility, not to exceed 3,200 square feet of Ag Commercial 2 property shown in our testimony. 3 CHAIR GARCIA: And the amount that you're requesting 4 is, uh, $16,470.59. Is that correct? 5 TOM HAREN: The amount that we're requesting is 6 $1,628.80. Thirty-two hundred (3,200) square feet, at the Ag 7 Commercial rate of $509 (3.2). That is somewhat consistent with 8 the precedent that was provided. 9 COMMISSIONER KIRKMEYER: That's on page eight, top 10 slide of your presentation that you handed to us. Correct? 11 TOM HAREN: Right, correct. 12 COMMISSIONER KIRKMEYER: -- where is shows square 13 footage equals 3,200, divided by 1,000, times $509. And that's 14 the Ag Commercial Rate. 15 TOM HAREN: Yes Ma'am. 16 CHAIR GARCIA: Thank you. Any questions? 17 COMMISSIONER KIRKMEYER: I just -- 18 CHAIR GARCIA: Yes. 19 COMMISSIONER KIRKMYER: -- make sure I'm clear. So, 20 you said the structure predates the fee, but obviously, the use 21 of the structure doesn't predate the fee, because you had to 22 come in for a USR? 23 TOM HAREN: We did come in for a USR for public 24 commercial, but the traffic generation of the facility wouldn't 25 be the same because the facility was in violation prior. Um, 14 1 but the traffic impact and the use and the building and 2 everything was, um, three years prior to the Road Impact Fee. 3 COMMISSIONER KIRKMEYER: Well, the Road Impact Fee 4 that was passed in 2002. Correct? 5 TOM HAREN: Two year, correct. 6 COMMISSIONER KIRKMEYER: So, and then you said also 7 the equine arena, that if it wasn't covered, it wouldn't be 8 charged the fee? Is that what you said? Did I miss something 9 there? 10 TOM HAREN: No, I was trying to make an analogy that II if you took the operation's infrastructure of the building 12 itself, and left it in a building, and you had an outdoor arena; 13 there would be no discussion about the fee. 14 COMMISSIONER KIRKMEYER: Because outdoor arenas aren't 15 assessed an impact fee. 16 TOM HAREN: Correct, but you would still have this 17 same traffic. 18 COMMISSIONER KIRKMEYER: And, because, I'm sorry I 19 wasn't here for the USR. How many events do you have a year at 20 the arena, or approximately? 21 TOM HAREN: Um, most weekends and jackpots Wednesday 22 nights, barring holidays and weather. 23 COMMISSIONER KIRKMEYER: Ok, thank you. 24 CHAIR GARCIA: Any other questions? Commissioner 25 Rademacher. 15 1 COMMISSIONER RADEMACHER: And the church is part of 2 the new USR? 3 TOM HAREN: No, the church was an example for a 4 similar arena, but there is no church activity involved in this 5 arena. 6 COMMISSIONER KIRKMEYER: And, I'm sorry -- 7 CHAIR GARCIA: Yes, Commissioner. 8 COMMISSIONER KIRKMEYER: So, I just want to make sure 9 I'm clear. So, USR-1540, which is Church Barn -- M TOM HAREN: Correct. 11 COMMISSIONER KIRKMEYER: -- you said that there 12 weren't any fees - there weren't any impact fees for the Church 13 Barn. 14 TOM HAREN: When we asked staff, uh, part of our 15 rejection letter included a determination from Public Works and 16 a comment based on precedence, so we asked for precedence. We 17 were provided with the precedence that we showed you on the 18 screen. We were not provided with any precedence from either 19 USR, uh, for the Church Barn, or the USR for Repels Arena, which 20 you would think would be the most damning precedence and 21 consistent with this application, yet none exists. 22 COMMISSIONER KIRKMEYER: So, but just to be clear, I 23 want to make sure I heard what you said, that USR-1540, which is 24 Church Barn, and USR-1393, which is the commercial roping arena, 16 I I believe you said there weren't any impact fees assessed on 2 either one of those USRs. 3 TOM HAREN: Uh, there have not been any impact fees 4 that, uh, have been assessed to date, or shown presented by the 5 staff. Um, there is a reference in the USR for the Church Barn, 6 that the Development Standards and Conditions of Approval 7 reference the Road Impact Fee. Repels Arena, uh, the 8 Development Standards and Conditions of Approval themselves, do 9 not reference the County Road Impact Fee. 10 COMMISSIONER KIRKMEYER: Ok, thank you. 11 TOM HAREN: Thank you. 12 CHAIR GARCIA: Any other questions? Thank you for 13 your presentation. 14 TOM HAREN: Thank you. 15 CHAIR GARCIA: Mr. Ogle, thank you for your, uh, 16 introductory comments on the chronology and all. Are there any 17 further comments that you wish to make on this? l8 KIM OGLE: Um, I do. Uh, the USR-1633 was approved 19 for an Agricultural Service Establishment primarily engaged in 20 performing agricultural animal husbandry, horticulture service 21 on a fee or contract basis, including a rodeo and roping arena 22 (both indoor and outdoor), uh, Commercial in the Agricultural 23 Zone District. Uh, they have 150 people allowed for the indoor 24 arena, 250 people for the outdoor arena. Uh, this case was 25 brought to staff due to a violation that was established in 17 I 2007. It had gone from a personal use arena to one that was 2 doing commercial level activities where these jackpots were 3 identified. Um, I think Wendy has some comments. 4 WENDI INLOES: Wendi Inloes, Department of Planning 5 Services. Just to clear up, um, a few comments Mr. Haren made. 6 The Rapel Roping Arena - I just want to bring up, the reason why 7 that was not assessed is in 2004 we, um, went from the Road 8 Impact Fee -- I don't know, Commissioner Kirkmeyer, was it in 9 certain areas of the County? 10 COMMISSION KIRKMEYER: Um, hmm. 11 WENDI INLOES: -- at the time Rapel came in, it was 12 outside of that -- those areas. We didn't go County Wide Road 13 Impact Fee until 2004. So, that's why that was not assessed. 14 Um, as far as the Church Barn, we don't have a change of use in 15 our office at this time; so therefore, no fee has been assessed 16 on that. Um, I will admit I apparently made a mistake on one 17 those. The $333.00 - that should have been $509.00. I think I I8 looked at, obviously, something wrong. So I will take 19 responsibility for that one. That was my, my mistake. It 20 should have been the $509.00, so that wasn't a break in 21 anything. Um, and I think that kind of answers that -- 22 CHAIR GARCIA: Commissioner Kirkmeyer, question? 23 COMMISSIONER: So, could you -- and maybe, I don't 24 know. Maybe I should wait 'til Janet speaks. I'm sorry. I'll 25 just wait. Let Janet get hers in and then -- 18 1 CHAIR GARCIA: Ok, are there any other questions for 2 Wendi Inloes? Thank you. 3 JANET CARTER: Janet Carter for Public Works. Um, Mr. 4 Haren had a few incorrect statements within his, um, explanation 5 of the process here. Uh, the first one was -- the two that I'm 6 most concerned with is the Traffic Study. Public Works or Weld 7 County has not received a Traffic Study. By our standards, a 8 Traffic Study has to be stamped and signed by a professional 9 engineer. And, that's what we require for any traffic study 10 that enters within the County. Um, also, um, he had mentioned 11 that Public Works had helped him with the Traffic Study. What 12 Public Works did, and I'll explain exactly what I did, I spoke 13 with, um, Tim Naylor, which is -- works for AGPRO, and gave him 14 the traffic counts that were near the project site. Um, he also 15 asked me some, um, clarification questions about the Code and 16 some of the equations that were in the Code, um, in general, 17 about independent fee calculation, and I clarified those items I8 for him. But, once again, we still have not received a Traffic 19 Impact Study, which I've requested for the Independent Fee 20 Calculation since January 12, 2009. Um, the second, uh, I think 21 was just maybe a confusion of the memo, um, that he had 22 incorrect statements. In the memo, um, on July 12th, um, which 23 I also reiterated in the August 18th memo, was that the use of a 24 roping arena where they're doing this rodeo, is not in the ITE, 25 and that's clear and I put it in the memo. And so, I had a few 19 I options. When looking at the different land uses, and how to 2 compare to come up with a true road impact fee for this site, 3 what I did is I first looked in the arena. In the ITE there is 4 only two examples of arenas, and he's correct, it's probably 5 something like Budweiser - something's that's huge, something 6 that's not comparable to this site. So, I examined that. I put 7 down what the value would be for that and moved on. I also 8 looked at the type of use, and a church was something that we 9 thought of internally - would be something similar - where 10 there's not activity during the week, or very little, and on the 11 weekend activity would be raised due to these, um, you know, 12 timed events. So, that's where the church came from. However, 13 we did -- we never used the church valuation for the road impact 14 fee on this site. It was just an example of a type of use. 15 What I did do, is take the values that they gave to use in their 16 December 24th, um, letter or memo, that we received from 17 Casseday Designs, and analyzed the types of trips that they were 18 using. Based off of those trips, I compared them to other uses 19 within the ITE, um, that would have been similar. A similar 20 volume of traffic was this Light Industrial that I had within 21 the memo. We don't actually have, in our Code, in our chart 22 that we have within our Code, a Light General Industrial. What 23 it translates to, however, is the Ag Commercial, and so that's 24 pretty much how I came to that value. I wasn't actually using 25 the arena or the church, it was just -- I was trying to explain 20 1 how this value got compared from their land use, which doesn't 2 exist in the ITE, and translate that to something that is within 3 the Code and that would be fair. And, that was based off of the 4 traffic volume they supplied me with. Um, so at that point, 5 with the general, um, industrial, um, that matched up with the 6 Ag Commercial, with is $509.00, um, per uh, $109.00 -- or 7 $509.00, um for Ag Commercial. And, Wendi probably made a 8 really honest mistake with that $333.00. She wrote down Ag 9 Commercial on that document, and if you look at our actual 10 table, her finger probably just slipped, and she didn't put -- II she put the $333.00, which is the item right next to it -- an 12 honest mistake. But, she did put correctly on there, Ag 13 Commercial, which is what we had ranked them to be, which is 14 $509.00. Um, you know, just to -- just an overall view of why 15 we need to apply these. Um, these are trucks and trailers that 16 are coming out there, and they do add an added impact onto our 17 roadways. And yes, it's hard because their facility is so 18 large, to think that we wouldn't be able to somehow cut them a 19 deal. And, if you -- we had a period of time where we discussed 20 this internally with -- between the Planning Department and also 21 Public Works, um, from that December 24th memo, until my first 22 issued memo on July 12th, and what it came down to is with the 23 type of vehicles that were entering their site, and with the 24 traffic volumes that they have, it's really an Ag Commercial 25 site, and that's how we came up with that value. And, I can 21 1 explain a little bit more in detail, but I don't want to waste 2 your time. Um, so if you have further questions, I'd be more 3 than happy to answer those. 4 CHAIR GARCIA: Would you give a little bit more 5 information on the, uh, the square footage? 6 JANET CARTER: On the square footage, that's just 7 purely their -- their square footage of their site. Um, it is a 8 commercial facility. Um, they're for profit and I understand 9 that the people that are attending are -- they are, um, to do 10 these jackpots and whatnot for the rodeo, um, so Wendi actually u makes the breakdown of the type of the use within the facility 12 itself, but it is an Ag Commercial site. And, so, that's why 13 there probably wasn't a distinction within, um, the actual 14 building itself, as far as I know of. Um -- 15 CHAIR GARCIA: Ok, thank you. Any other questions for 16 staff? Commissioner Conway. 17 COMMISSIONER CONWAY: Um, maybe this is a question for 18 Tom, but you say that there has been no Traffic Study submitted? 19 20 JANET CARTER: No. We have not received -- COMMISSIONER CONWAY: So, we have no idea how many 21 trucks are coming and going or any else that's -- 22 JANET CARTER: No. We had an estimated value, um, 23 based off of their, um, what they would assume would come to 24 their site. They did supply us with that. So, they said based 25 off of if we had a roping event, we would expect maybe this 22 1 amount of people coming, but we've never received a traffic 2 study where they did an analysis of the volumes that are 3 existing on the roads and then, also a true analysis of the trip 4 distribution. So, how much is coming north; how much is coming 5 south; what's coming from the west; what's coming from the east. 6 No trip distribution, no projections of what traffic would be in 7 the future, um, based off of, you know, future um, models 8 modeling. We've not received a Traffic Study at all, and from 9 the January 12th memo, I definitely requested that. Because 10 that is a key factor into determining what the Road Impact Fee I is. And, if they're really contesting it, they need to prove 12 that they're not creating the volume that's, um, described by 13 their land use, and also the volume, um, that they were 14 proposing. And, they have yet to prove, um, that they are not 15 creating the volume that would trigger this Road Impact Fee. 16 And, also just as an added note, I did do a comparison here in 17 the memos, if you guys can see, of the different Counties and 18 what they charge for those fees, and you can see ours are 19 considerably lower that what they would be charged if they were 20 in any other county. Um -- 21 CHAIR GARCIA: Commissioner Conway. 22 COMMISSIONER CONWAY: Have we done traffic counts 23 previously in this area? 24 JANET CARTER: Yes. And, that's what I provided, um, 25 to the applicant's, um, representative. I supplied them with 23 1 the traffic counts that we had recent on the roadways near their 2 site, and then I also clarified, um, in our Code we have a 3 section on the Independent Fee Calculation where it lists the 4 few equations that would have to be established as part of 5 independent fee calculation, and I explained those processes and 6 also gave them an estimated cost of building one mile of 7 roadway. 8 COMMISSIONER CONWAY: Do we know if traffic -- I know 9 we don't have a traffic count, or study that we compare apples 10 to apples to, but do we know there is even going to be an 11 increase in traffic, since this has been -- my understanding is 12 this facility has been operating for some time. It came here as 13 a violation. Is that correct, Kim? 14 KIM OGLE: Correct. 15 COMMISSIONER CONWAY: So, we don't even know if there 16 has -- I mean, if there's been -- I know we need a traffic study 17 to kind of determine that, but there may not be any increase in 18 traffic. l9 JANET CARTER: That's correct. And, there could not 20 be an, um, escalation of traffic out there, but they have yet to 21 prove that there has been any change in the traffic out there. 22 However, I would imagine just, you know, I guess my point to 23 almost everyone who comes in is, I hope business is booming for 24 you, and that you would have an escalation because then your 25 business would be excelling. And so, we have to make that 24 1 assumption that there has been some improvement. And, the other 2 thing is, because this has been going on for so long under the 3 violation, our traffic counts probably aren't a true reflective 4 like snap shot in time of what it was prior to when they moved 5 to commercial, because it was in violation. So, although that 6 traffic's on the road now, they aren't -- they haven't paid for 7 the damage that they've done to those roadways; I guess damage 8 isn't the right word, but, if you understand what I mean. In 9 2001 they built this structure. It was, you know, a family 10 business, and then they turned it over to commercial. We don't II have a snap shot in time from probably -- we may, but we don't 12 have a time where we had prior to them actually working it as a 13 commercial site because they didn't go through the original 14 process in the correct order. 15 COMMISSIONER CONWAY: So, we don't have traffic counts 16 going back to 2001? 17 JANET CARTER: We do, but I'm not sure when they 18 opened their facility to have that examination. I can look up 19 those traffic values to have a comparison. 20 COMMISSIONER CONWAY: I'd like -- I, you know, I know 21 we're probably going to decide this today, but I'd -- I would 22 think common sense would tell me if this was the county in 2000; 23 this was the count in 2005 and we'll do an estimate. I mean, 24 I'd like to know if there's been -- I'm not sure there's been a 25 case made. I know you're saying it's up to the applicant to 25 1 prove that, but you have existing traffic counts which will 2 either determine whether there's been an increase or not an 3 increase. 4 JANET CARTER: Well, there's been an increase since 5 2001 in the volume out there. That's a definite. 6 COMMISSIONER CONWAY: But, we don't have those 7 numbers. 8 JANET CARTER: I don't have those numbers present 9 today. Um, but another thing to be fair to the applicant, that 10 increase -- because we didn't count their driveway, that 11 increase on that roadway from 2001 to now may not be solely 12 provided from their building. 13 COMMISSIONER KIRKMEYER: It could be attributed to 14 something else. 15 JANET CARTER: Yeah. It could be attributed to 16 something else, so it's not really a fair way to examine it, and 17 that's one of the reasons why I did ask for a traffic study. 18 Because then they can account for what's theirs, and then also 19 what the existing condition is. 20 CHAIR GARCIA: Commissioner Kirkmeyer? 21 COMMISSIONER KIRKMEYER: Ok, so it sounds to me like 22 we all agree that it's Agriculture Commercial, and that's that 23 $509.00; it's just the amount of square footage appears to be 24 the difference now. Right? So, -- Ok, so my question would be 25 on the milk barn example that we sent to the, um, to the folks. 26 1 We only did the milk barn, as far as square footage, and it 2 appears on this one we're doing all of the facility as far as 3 square footage. So, why did only do the milk barn and not all 4 of the other -- well, not that I think you should have, but, I 5 mean, in one case we only did the milk barn itself to get -- and 6 it ends up being a smaller square footage, versus everything on 7 this one. So -- 8 WENDI INLOES: How I -- How I assess it is how it 9 comes in through the building permit. If it's a -- typically 10 you only permit the structure. We don't typically permit a, um, II fenced in, like in a dairy, you don't assess pens because 12 they're -- that's not a structure and doesn't require a building 13 permit. So, I assess based on the structure, and that's based 14 on square footage. So, if you put that you have 10,000 square 15 feet of building, or 5,000 of that is structure and 5,000 of 16 that is pens, then yes, I'm going to assess it on, but that's 17 the kind of information, um, I assess based on what the building 18 permit is. 19 COMMISSIONER KIRKMEYER: And the building permit in 20 this case was this, however many square feet it was -- 21 WENDI INLOES: The roping -- the indoor arena, Right? 22 COMMISSIONER KIRKMEYER: So, for the indoor arena it's 23 more than 3,200 square feet? 24 WENDI INLOES: Yeah, was it 6,000? 25 TOM HAREN: 65,000. 27 COMMISSIONER KIRKMEYER: Oh, that's right. 65,000; 2 that's the number I was looking for. So, we're saying that 3 there's 65,000 square feet out there in the indoor arena? 4 KIM OGLE: Yes. 5 COMMISSIONER RADEMACHER: Well no, because some of 6 that is Commercial area, or office space and what not. Right? 7 TOM HAREN: 3,200 would be non -arena. 8 COMMISSIONER RADEMACHER: Ok, that's what I was 9 getting at. l0 COMMISSIONER KIRKMEYER: Would be non -arena? 11 WENDI INLOES: But, if there's like an office, um, the 12 employees work at, whatever, that instead of assessing $2,000 l3 on office space and 5,000 square foot of arena, I try to use a 14 little bit of discretion there and say, ok, yes it didn't meet 15 the Ag Commercial 2,500 square feet, but, given the use, you 16 know, we look beyond that and just try to group everything into 17 one. Otherwise, you're looking at $2,100 in office space and 18 $509.00 for the rest of it. So, it actually -- 19 CHAIR GARCIA: If I could ask a question before I 20 recognize Commissioner Long. Uh, couple of procedural questions 21 for Bruce. Uh, number one - if you would address the burden of 22 proof, uh, who has the burden of proof. And then the second 23 question I would ask is that, uh, Mr. Haren pointed out that, 24 uh, we don't have the ability to negotiate or split the baby, or 25 what have you. Would you address, uh, what we can find - if 28 I it's one side or the other, or what are our options? Thank you 2 for allowing me to ask those questions. 3 BRUCE BARKER: Sure. The burden of proof is on the 4 appellant, as in any appeal. Um, so that's number one. Number 5 two is - the way this was set up, was that we do have general 6 categories that may or may not fit. The idea was that you fit 7 it as close as you can. You get in there, but if the property 8 owner wishes to appeal, you go through an independent fee 9 calculation study, which includes, if you go on into the Code, 10 um, you find on -- I think it's on page, uh, nine of that H Chapter, um, and it's under Section 20-1-310, there's a formula 12 that's set up there that has a variety of different things, some 13 of which are facts. Ok, these would be facts that would be 14 supplied by the appellant saying these are the things that we 15 found. I don't see anywhere in there -- I take exception to the 16 idea that you have to have a traffic study, to have to pay for 17 one to have an independent fee calculation study be done for 18 every one of these. I mean I think it's a wise thing to do, 19 cause then you can prove those facts -- you can prove what is 20 coming up, but in essence, I believe that the August 10th letter 21 did make an attempt at doing just that -- that came from 22 AGPROfessionals. The -- so you go through this calculation, 23 this is just the way it was set up -- the appeal is, this is how 24 we figure it, these are the facts that we have, you find those 25 facts, you see if it fits, and then make the determination based 29 I upon that information that's provided you. You may agree with 2 the appellant, that in fact that independent fee calculation 3 study is correct based on those facts; you may agree with the 4 Director who has made the determination based on that general 5 idea of how we fit this into that table. Um, that's the way it 6 was set up originally, and I think that's, um, pretty much the 7 way I would advise you to go. Um, you know, it seems to me that 8 what you're doing right now is trying to figure out, well, 9 should it have been calculated as this instead of that. Really, 10 that's not the method by which we set up for an appeal. It's to II use this formula, that I think has already been stated, and they 12 provided facts in their August 10th letter appropriately. 13 CHAIR GARCIA: Thank you. Commissioner Long. 14 COMMISSIONER LONG: Well, and I -- when we first came 15 up with this concept of road impact fees, we recognized that we 16 weren't going to capture all the different uses there might be, 17 and there's some latitude given to get as close as you can to 18 something that's already outlined. I think there's opportunity 19 here, and we discussed this when we originally did the concept, 20 that should there become, uh, an increase in certain uses, that 21 we spell that out. We allow that time to go out and say, ok, 22 this is kind of a different animal. We have a lot of arenas, I 23 think in the future there's going to be a lot more arenas, and I 24 think we can step back and maybe not decide today -- at lease 25 not from my perspective, but sit back or take the relevancy of 30 1 what they applied in their letter and bring it back and say this 2 is how arenas could be looked at separately from the other 3 categories that it's trying to be compared to, or is close to. 4 That's what my preference would be. Um, not to try and compare 5 and contract, but look at this as a different animal, because it 6 is different than the other ones that, that -- that we're 7 obligated to compare it to, cause, you know, I'm wanting to put 8 in common sense here and say this, this is different. This 9 doesn't have the huge numbers of people that are going to occupy 10 a -- a building of that size, you know, because it's an arena. II You don't have it full of people, you just have a few horses and 12 people and whatnot. So, to me it's different. So, I'd like to, 13 you know, I'm -- I guess I'm -- I would almost lean to using 14 theirs as a comparative kind of a model and go from there, but 15 let's try to spell out something that looks at an arena 16 differently, as compared to something else. 17 CHAIR GARCIA: Ok, before we come back to Mr. Haren. 18 Are there any other questions for staff? 19 COMMISSIONER RADEMACHER: I already got my answer. 20 CHAIR GARCIA: Ok. Um, you will get a chance to 21 speak. Yes, comment Ms. Carter. 22 JANET CARTER: I just -- I just wanted to clarify, um, 23 I think. Um, with the equations that are put out in the Code 24 that Bruce was talking about, where it doesn't necessarily 25 request a traffic study, in order to get those calculations, 31 1 though, you would have to have a traffic study. In order to 2 determine the VMT and the VMC, those things are not something 3 you can just get from a number. That -- those are, um, pretty 4 detailed analysis to get those numbers. It's not just saying I 5 guess that we're going to have 28 vehicles per day. It's 6 something that you have to compare a volume of data to 7 determine, and that's why I requested a traffic study. So, 8 although it doesn't say point blank in the Code, "You have to 9 have a traffic study," in order to get that information, you 10 pretty much would. 11 CHAIR GARCIA: Commissioner Conway. 12 COMMISSIONER CONWAY: Why is the information presented 13 in the August 10th letter not sufficient? l4 COMMISSIONER KIRKMEYER: Could you tell me what page - 15 - what number you're on? 16 COMMISSIONER RADEMACHER: Eleven. 17 COMMISSIONER CONWAY: Page eleven of 23, there's the 18 August 10th letter, and in there he spells out, um -- 19 BRUCE BARKER: I think it's in the second paragraph. 20 COMMISSIONER CONWAY: Yeah. 21 COMMISSIONER RADEMACHER: Yeah. 22 BRUCE BARKER: -- and in the data that's attached. 23 JANET CARTER: Yeah. And when it -- and I can 24 explain that. Um, why it's not complete is, um, again, they 25 never supplied supporting data to show where they made these 32 I calculations from, um, so I don't know what was the traffic 2 count that they received. Were they using our traffic count or 3 somebody else's traffic count to contribute to this data? Um, 4 there was no explanation of the VMT or the VMC, which again, you 5 know, is that data that you, um, weigh. It's a number of, um -- 6 it's data that you take and you basically do an analysis of to 7 get those two numbers. Um, the lengths of the, um, traveling 8 public to get there -- that was never determined -- was not 9 explained. They just say that it's ten. Um, another thing, um, 10 and I'll just flip to my memo. If, uh, if you look on the 11 August 18th memo, I, um, number the reasons why it was 12 incomplete. Number one - the traffic count data, um, collected 13 by the applicant's representative, was not included with a 14 submittal. The calculations for VMT, VMC, and the length of the 15 impacted roadways from the Highway Capacity Manual Formula, 16 which is where we get this section out of the Code, um, were not 17 provided with the submittal. The submittal materials were not 18 performed by a transportation engineer, or a transportation 19 planner, which would have -- they would have the expertise to, 20 um, perform those equations, uh, to do a correct analysis. Uh, 21 and then I also -- they also have no mention of the independent 22 fee, um, -- in the independent fee calculation related to the 23 ITE Manual, which is that comparison of what land use they're 24 saying they truly are. Um, because -- or like we stated -- like 25 I stated before, an arena doesn't quite fit, a church doesn't 33 1 quite fit. What category are they suggesting that they fit? 2 Um, the -- the submitted, um, independent -- I'm on item number 3 five here. The submitted independent fee calculation did not 4 contain the summary of the study area or the trip distribution, 5 so we don't know if they're coming from two miles away, ten 6 miles away, and these are things that contribute to our 7 roadways. It's not just necessarily the road right in front of 8 somebody's property that they're impacting, and that's something 9 that is normally supplied within a traffic study, and that goes to to, again, that length of just ten. Which is what -- the number II that they put in for that value. Um, number six. In the 12 analysis of a, um -- of the existing traffic volumes, which 13 alludes to what Commissioner Conway was asking before, you know, 14 what is this background traffic, and what is the traffic that is 15 actually being, um, added to the roadway due to their facility. 16 And then, number seven was the analysis of future traffic 17 volumes, um, due to their site as growth happens. So, those 18 were the seven key items that were not supplied within their 19 Independent Fee Calculation, which made me deem it as -- um, 20 incomplete. 21 CHAIR GARCIA: Thank you. Any other questions? 22 Commissioner Kirkmeyer. 23 COMMISSIONER KIRKMEYER: At any point was there 24 discussion? Cause as a said earlier, we -- everybody's agreeing 25 that it's Agriculture Commercial; everyone's agreeing about the 34 1 $509.00. And, I know they can ask for a Traffic Impact Fee 2 Independent -- you know, analysis thing done. It does seem like 3 to have to ask for when really it's a discussion about how much 4 square foot is really attributed to the Agricultural Commercial 5 portion. I mean, that's really where the disagreement is. 6 We're not -- they're not disagreeing on the $509.00, it's really 7 how much is attributed to Agricultural Commercial. So, for that 8 you don't really need a traffic independent traffic analysis. 9 That's where you sit down, you go down, you look and figure out 10 how much square footage is actually attributed to it. 11 WENDI INLOES: I -- I agree with you. I will say, 12 throughout this whole process, typically as the administrator of 13 this fee, I would be involved with all these conversations. I 14 was never involved with any conversation, um, I believe at the 15 time the Director and Mr. Haren, whoever, was having these 16 conversations. So, could've we probably figured something out 17 earlier, probably. But, again, typically, I get involved with 18 the first letter, so we've kind of done this in a way, now 19 unfortunately we're here. 20 JANET CARTER: And just to follow up, my involvement 21 was, um, once we received that December 24th letter, it wasn't, 22 um, contesting, uh, you know, that we have so much space as 23 office, some much space as this, or so much space as that - it 24 was contesting the $509.00, and that's when my involvement in 25 this process came to be. That they didn't like the $509.00 Ag 35 1 Commercial on it; they wanted a lower value to be assessed to 2 it. So, as to if there were conversations outside of that, I am 3 unaware of it. 4 CHAIR GARCIA: I have a question, and uh, maybe Mr. 5 Ogle can answer this one. In the Resolution that we have 6 prepared for us, it uh, the draft one talks about independent 7 fee calculation study, uh, with a proposed fee of $16,470.59, 8 and in our discussions today I haven't heard that number. Is 9 that a typo, or do you know anything about that? 10 KIM OGLE: And that's in the Resolution? 11 CHAIR GARCIA: That's in the Resolution. Mr. Haren, 12 we'll be coming back for rebuttal, but do you have any knowledge 13 of what that number is supposed to be? 14 TOM HAREN: I don't. 15 CHAIR GARCIA: Ok, because that's the number I had 16 initially asked you about. Because I -- that number is out 17 there -- I don't know, it might just be a typo. 18 COMMISSIONER KIRKMEYER: If you look in the fourth 19 Whereas, which says, "submitted an independent fee calculation 20 study pursuant to the Code, wherein the fee was proposed be 21 $16,470.59." So, I'm assuming that came from all this traffic 22 study stuff that wasn't stamped by an engineer that they figured 23 out. 24 JANET CARTER: That was their value that they 25 submitted to us, saying that that's what they would prefer to 36 1 pay; not the $33,000, and I can't see my number here -- that we 2 were proposing. 3 COMMISSIONER RADEMACHER: $33,517.00 4 JANET CARTER: Yeah. Thank you. 5 CHAIR GARCIA: Ok, thank you for that explanation. 6 Are there any other questions for staff? Thank you for your 7 presentations. Mr. Haren. 8 TOM HAREN: Thank you. There are two components to 9 this - traffic and category, and I'd like to address the traffic 10 real quick and then just lay that aside, cause I think we're all 11 in concurrence about the Ag Commercial. But, um, we were 12 objectionable on the traffic, uh, because the traffic engineer 13 is not in the Code. Uh, we had several meetings with the 14 previous Director, but our last meeting was with uh, Monica, 15 whereas, she concurred we did not need a traffic study. I felt 16 it was, uh, a high cost to pay five or six thousand in order to 17 be heard. She said, uh, we do not need one, but we must use the 18 formula. We must use the formula. Our sources - we did, uh, 19 get some information from the County. Um, I would have liked -- 20 like more of just data of traffic counts. The County takes 21 traffic counts; there's no other agency, other than private 22 people, that take them. So, uh, we did have a lot of 23 information from CDOT; they were very forthcoming in traffic 24 counts. And, engineers and consultants we've used in the past 25 also assisted because they had historical data. Uh, our lengths 37 1 were from Highway -- from -- our lengths were from State 2 Highways - 34, 14, 85 and 25 is where those numbers came from. 3 Um, we had some debate over engineering and using these numbers. 4 We did not get any calculations from Public Works, uh, anything 5 other than this wasn't an engineered document or no previous 6 engineering from Public Works, um, but the idea of, you know, 7 they were working with us, this looked like the best we could 8 do. If we went further, it could actually be a higher fee if 9 they actually went through and did calculations. So, of course 10 that would concern us even more, um, but there are two 11 categories -- or two areas, traffic and the category. Our 12 traffic summation was 0.26 is the calculation we came up with, 13 which does compare to the mini warehouse. If you were going to 14 pick something out of the Code, but obviously, the Code says the 15 closest land use category. So, just on traffic alone, that's 16 where the mini warehouse came from. Now, let's look at the -- 17 what we -- what I feel is more pertinent, the land use category 18 of Ag Commercial, which I think we're all in agreement. You 19 know, I don't know what the basis and purpose when the rule was 20 created, but I find it very interesting that the only category 21 in the table with a limitation is the Ag Commercial. It says 22 you charge $509.00 up to 2,500 square feet. Now, why on a 23 building, would you limit it to a maximum square footage? If 24 you were doing a church, if you were doing a theatre, if you 25 were doing retail, if you were doing industrial, why would you 38 I limit it to an upside? And, I can only speculate that, in 2 consideration of Ag Commercial, the relationship of what is 3 actually commercial to the volume of these buildings is very 4 small. Somewhere I think that had to be in the calculation, 5 otherwise, why would you put an upside limit on Ag Commercial, 6 therefore, 2,500 square feet. So, I concur the land use is Ag 7 Commercial. If you're going to apply it, as was applied in some 8 of the examples, you take the square footage up to 2,500 square 9 feet. There are a few examples where the square footage of 10 commercial property was taking in exceedance of the 2,500 square 11 feet, but give or take, that seems to be the use which would 12 verify, uh, what Commissioner Kirkmeyer is saying, and 13 Commissioner Rademacher; the Commercial use of the building - 14 the commercial portion, is Ag Commercial and the rest is animal 15 husbandry. Or, in term of a building permit, would be Ag 16 Exempt, um, and that's what we, uh, concluded in our, um, 17 statements. I don't feel that is negotiating, picking a number 18 out of the sky. Um, I feel we have provided -- followed the 19 process to provide traffic counts to get to this point, but in 20 not negotiating, the Director is supposed to pick a category. 21 If you don't agree, you're to redirect the category that they're 22 supposed to use, or how to use that category, and that's what 23 we're requesting - Ag Commercial, either 2,500 square feet, or 24 the 3,200 that is actual Commercial in the building, um, and I'd 25 be happy to answer any other questions. 39 I CHAIR GARCIA: Very good. Thank you. Are there any 2 questions for Mr. Haren? Thank you for your presentation and 3 your remarks. Bringing it back to the Board, and uh, question 4 for Bruce. 5 COMMISSIONER KIRKMEYER: Monica is at the table now. 6 CHAIR GARCIA: Well, Monica, we've already, uh, closed 7 the presentation by the County. If you have anything further to 8 say, I'm going to give Mr. Haren the opportunity to rebut. 9 MONICA MIKA: That's fine. I just thought that since 10 Mr. Haren was mentioning we had a conversation, I though perhaps 11 it would be to his benefit if I concurred with what he was 12 saying or not. Um, Monica Mika, Weld County. Tom and I did 13 have a conversation, and we were at the point where neither Tom 14 nor I really participated in the beginning of this process. And 15 like Wendi and staff have said, this is a unique case, and this 16 case was processed a little bit differently than most -- most 17 cases that we have. And, when Tom and I were looking at it, 18 staff was really at an impasse, and when Tom and I discussed 19 this, it wasn't just about the process, it was about the fee, 20 and it was about the land use. According to the Code, the 21 process is that staff would work with the applicant all the way 22 through the process, and there would be a building permit that 23 would be let, and that's the real trigger in this, is that all 24 this discussion we're having now happens prior to the issuance 25 of a building permit. Tom and I, when we met, we both 40 I understood that there's a concern with this; is that there's a 2 pending building permit out there that can't be approved. So, 3 that was some of the impetus for going back and looking at this. 4 Um, Tom had talked about what his speculation was on a Code 5 change, and I do think that it is my responsibility to tell you 6 what I believe happened that wasn't based on speculation. The 7 reason that there was a benchmark for Ag -- Agriculture 8 Commercial added to the Code when this -- when the impact fee 9 went into effect, we did not have an Agriculture Commercial. 10 And what happened is, is when we were working with the small 11 USR's, it became apparent that there needed to be some give and 12 take, or flexibility, to allow an Ag use that was low intensity, 13 one owner, with maybe two employees - something real small, to 14 be able to come through and work through the road impact fee. 15 So, that was the intent of the Ag Commercial, and that was why 16 it was specifically called out for just a small -- a small 17 square footage, and I think that's important for the 18 Commissioners to know when you're looking at this process. Tom 19 and I also talked about the need to have a transportation 20 engineer look at this, and both Bruce and I have worked on this 21 for a long time, and this is the second appeal that we've had 22 for the road impact fees. And, Elizabeth is right - Bruce is 23 right, is that the Code doesn't specifically say you need to 24 have a transportation engineer fill this out. However, in order 25 to have credibility in the calculation, and running through the 41 1 methodology, you need to be able to have the fundamental 2 knowledge to fill out the actual formula. So, I just think that 3 that's important for the Board to know and -- and how you go 4 about that. I felt that it was more important to have this 5 venue and discussion in front of the Board to really talk about 6 where this application needs to go. So, I just wanted to add 7 that in. Thank you for allowing me that input. 8 CHAIR GARCIA: Thank you. Any questions for Monica? 9 Thank you. Mr. Haren, if you'll, uh, give you the 10 opportunity for rebuttal directed to those comments. 11 TOM HAREN: No rebuttal. Thank you. 12 CHAIR GARCIA: Thank you. We'll bring it back to the 13 Board, uh, for discussion. Uh, Commissioner Kirkmeyer? 14 COMMISSIONER KIRKMEYER: I'm sorry; I have a question 15 for our Attorney. So, the Code does read, in 20-1-130, 16 Definitions for Agriculture Commercial, and it goes on to say, 17 um, "having less than two thousand five hundred (2,500) square 18 feet of floor space, per lot." So, as we're figuring out the 19 impact fee, we're really only supposed to assess up to 2,500 20 square feet in an Agriculture Commercial operation? Is that how 21 it should be implemented? That's in that letter too, on page 11 22 of 23. And when I read in the Code, that's what it says too, 23 so, does that mean we're really only supposed to be -- the way 24 we would actually implement the Code is that -- 42 1 BRUCE BARKER: No, what is says is, "agricultural 2 commercial" means this, less than 2,500 square feet of total 3 floor space per lot. Ok, so if -- what it's saying is if it's 4 over that, it's probably something else. I mean, it saying -- 5 COMMISSIONER KIRKMEYER: Then they would have the 6 ability to put the fee on more than 2,500 square feet. 7 BRUCE BARKER: If you put the fee -- I mean, I guess 8 the thing is that 2,500 feet, or less, is going to be 9 Agricultural Commercial. If there's something that's bigger 10 than that, what is above that is going to put it into a 11 different category, and I mean, that was -- the idea was to 12 limit it to say Agricultural Commercial is limited to what would 13 be less that 2,500 square feet. 14 COMMISSIONER KIRKMEYER: I would just say, here's what 15 I think to start off some of the discussion. I think we all 16 agree its Agricultural Commercial, so that does appear to be the 17 closest land use classification, um, and everybody can agree 18 about the $509.00. What we don't agree on is what amount of 19 square footage, and when I say we - I mean between Planning and 20 between, um, the applicant here, or the appellant here, on the 21 actual amount of square footage that's related to the 22 Agricultural Commercial. So, you know, I don't agree with the 23 $33,000.00 fee; that seems a little -- that seems a little 24 excessive. In the original letter, and stuff, from the 25 appellant, it was, you know, $16,000.00. I don't even know if 43 1 that's fair, actually. I mean, I think maybe it could have been 2 solved if we would have had some better discussions between the 3 previous Planning Director, perhaps the Board, and the 4 appellant, but that didn't happen, and that's, you know, that's 5 on us. That's not on these three. That's more on us. So, you 6 know, I think -- I mean, I think it should be that we would 7 reverse the decision, agree that it's the Agricultural 8 Commercial as the closest land classification, agree to the 9 $500.00, and send everybody back to make a determination on what 10 amount of square footage is actually Agricultural Commercial. 11 I'm trying to be consistent with how we've done it with other 12 roping -- other indoor roping arenas. That's what I think, but, 13 that's my points. 14 CHAIR GARCIA: Procedural question for Bruce. Is 15 that, un, hypothetically, uh, as described by Commissioner 16 Kirkmeyer, if that were the decision of the Board, is that 17 within our powers and abilities? 18 BRUCE BARKER: Well, I think what 20-1-340, what it 19 says is, is that you can either affirm or reverse the decision. 20 I guess the -- what's being suggested is you reverse the 21 decision and you send back for decision making, which may, if an 22 agreement cannot be reach, would come back to you all. 23 COMMISSIONER KIRKMEYER: With some findings, though. 24 Can we do that? 25 BRUCE BARKER: Ok, well -- 44 1 COMMISSIONER KIRKMEYER: Like about the Ag 2 classification -- the Agricultural Commercial and the $509.00? 3 4 5 findings. 6 BRUCE BARKER: Yeah, I think you could. COMMISSIONER RADEMACHER: Yeah, it has to come with COMMISSIONER KIRKMEYER: Yeah, so it's from us, that 7 we can give that kind of direction. 8 COMMISSIONER RADEMACHER: I'm fine with that. 9 CHAIR GARCIA: Thank you. Further discussion? Are we 10 ready for a motion? 11 COMMISSIONER KIRKMEYER: Sure. 12 CHAIR GARCIA: Commissioner Kirkmeyer. 13 COMMISSIONER KIRKMEYER: I'll make -- I'll take a stab 14 at it. Mr. Chairman, I would move that the Board reverse the 15 decision of the Director -- of the, uh, Interim Director and, 16 um, with the following findings. That we do find that it is, 17 um, and the appellant where he made the discussion and with our 18 Planning staff, that it is Agricultural Commercial; that is the 19 closest land use classification. And that it is at the $509.00 20 and that we direct our staff to work with the appellant to 21 recalculate the amount of square footage related to the 22 Agricultural Commercial portion of the facility. 23 CHAIR GARCIA: Motion to, uh, reverse, and uh, the 24 factual findings as stated by Commissioner Kirkmeyer. Second by 25 Commissioner Conway? 45 1 COMMISSIONER CONWAY: Second. 2 CHAIR GARCIA: Further discussion? 3 COMMISSIONER CONWAY: I have a question. 4 CHAIR GARCIA: Yes, Commissioner Conway. 5 COMMISSIONER CONWAY: We haven't addressed the traffic 6 issue. I assume -- do we want to address that in this 7 Resolution? Um, because, A - I'm, I mean, a traffic study is 8 not required, and one of the items that were -- I don't know. 9 Do we -- I guess, let me just throw that out. Do we want to to address, as part of the findings -- 11 COMMISSIONER KIRKMEYER: I'm going to say no, because 12 I think that if everybody, again -- if everybody, again, would l3 have had the opportunity and again, this was with the 14 previous Director, if they would have actually sat down and 15 really looked at what is that portion of square footage related 16 to Agricultural Commercial, they would have never had to go to 17 the independent traffic study, because they would have just been 18 arguing about the square footage. So, that's why I didn't 19 include it. 20 21 22 COMMISSIONER CONWAY: Thank you for the clarification. COMMISSIONER KIRKMEYER: Sure. CHAIR GARCIA: Commissioner Rademacher. 23 COMMISSIONER RADEMACHER: And, do we want to put a 24 time limit -- time line on this too? 25 COMMISSIONER KIRKMEYER: Well, I think according -- 46 1 COMMISSIONER RADEMACHER: It's to their benefit to do 2 it as quickly as possible. 3 COMMISSIONER KIRKMEYER: Well, and I think according 4 to the Attorney, if I thought I heard correctly, is that if they 5 can't agree, and the Planning Director comes up with a different 6 fee that the appellant doesn't agree to, they can come back and 7 appeal it again. 8 COMMISSIONER RADEMACHER: Ok. 9 COMMISSIONER KIRKMEYER: Right? 10 COMMISSIONER RADEMACHER: Right. ll CHAIR GARCIA: Commissioner Long. 12 COMMISSIONER LONG: And to extend on my comments 13 earlier, um, I think there needs to be some common sense applied 14 to this. It's not just the square footage, but the number of 15 people that are actually going to be able to occupy that 16 facility for that given use. I mean, because it might be a big I7 building, but that doesn't mean it's going to be just absolutely 18 full of people that came in cars. I mean, this is a different 19 of use, and I think we need to be sensitive and apply common 20 sense to the strategy that we're coming up with; not just with 21 the square footage, but also the number of people. 22 23 question. 24 CHAIR GARCIA: Commissioner. COMMISSIONER CONWAY: I also have a technical 47 1 COMMISSIONER CONWAY: They've, uh -- will they have to 2 pay another $500.00 to come through the appellant process again 3 if they are unable to make, um, -- 4 BRUCE BARKER: I don't think so. I mean, I think that 5 the -- in essence it's part of this same appeal -- 6 COMMISSIONER CONWAY: Ok, I -- 7 BRUCE BARKER: -- so I would think that that would be 8 the case. 9 COMMISSIONER CONWAY: -- I don't think it's fair since 10 we have ruled, somewhat in their favor today, for them, if 11 they're unable to reach an agreement, have to pay another 12 $500.00 to come before us. 13 BRUCE BARKER: Correct. 14 COMMISSIONER CONWAY: So, as long as there's a IS clarification on that with staff and the applicant, that if, 16 indeed, they are -- I'm hopeful they'll be able to make -- sit 17 down and work this out, but if they're not and they have to come 18 back, I don't think it's fair to assess them another $500.00 to 19 come before us. So, I don't know what we need to do or say, as 20 long as there's an understanding that this is all part of that 21 ongoing -- the $500.00 that you've paid is all part of that 22 process and you're not going to get dinged another $500.00. 23 BRUCE BARKER: I think it's part of the same appeal. 24 I think you set that on the record. 48 1 COMMISSIONER CONWAY: Great. Ok, as long as that's 2 clarified. 3 CHAIR GARCIA: Further discussion. Seeing none, we 4 have, uh, as previously stated, a motion to reverse. All those 5 in favor signify by saying "Aye." 6 BOARD UNISON: Aye. 7 CHAIR GARCIA: Those opposed say "Nay." Motion 8 carries unanimously. Thank you all. Thank you for presenting 9 it. Thank you all. 10 11 [End of discussion/action on Appeal Hearing to Consider Appeal 12 Regarding Proposed Road Impact Fee from Independent Fee 13 Calculation Study - Spicer Ranches, Ltd] 14 49 1 2 CERTIFICATE 3 STATE OF COLORADO) 4 ) ss 5 COUNTY OF WELD ) 6 7 I, Esther E. Gesick, Deputy Clerk to the Board and 8 notary public within and for the State of Colorado, certify the 9 foregoing transcript of the CD recorded proceedings, In Re: 10 discussion/action on Appeal Hearing to Consider Appeal Regarding it Proposed Road Impact Fee from Independent Fee Calculation Study 12 - Spicer Ranches, Ltd, before the Weld County Board of County 13 Commissioners, September 14, 2009, and as further set forth on 14 page one. The transcription, dependent upon recording clarity, IS is true and accurate with special exceptions(s) of any or all 16 precise identification of speakers, and/or correct spelling or l7 any given/spoken proper name or acronym. 18 Dated this 19th day of October, 2009. 19 20 x‘ee 21 Esther UE. Gesick, Notary 22 r✓ donnzcaa4Au .42A.142).�oFCO�S'• ORIGINAL ( ) oW, .20i3 23 CERTIFIED COPY (X) 24 50 1 INVOICE 2 (Recording/Transcribing) 3 4 5 6 7 8 9 10 I 12 13 14 15 16 17 WELD COUNTY CLERK TO THE BOARD c/o Esther Gesick, Deputy Clerk to the Board 915 10th Street, Greeley, Colorado 80631 (970)356-4000 X4226 (970)352-0240 (fax) egesick@co.weld.co.us Date: October 19, 2009 To: AGPROfessionals, LLC Attn: Tim Naylor, Planning Consultant 4350 Highway 66 Longmont, Colorado 80504 18 RE: Transcript of 09/14/2009 Hearing to Consider 19 Appeal Regarding Proposed Road Impact Fee from 20 Independent Fee Calculation Study - Spicer 21 Ranches, Ltd. 22 23 4.5 hours staff time @ $60.00 per hour - - $270.00 24 49 pgs. @4.00 - - - - - - - $196.00 25 Minus Deposit - - - - - - - $180.00 26 TOTAL, due on receipt, please - - - - $286.00 Esther Gesick From: Esther Gesick Sent: Friday, October 09, 2009 4:50 PM To: tnaylor@agpros.com; Tom Haren Cc: Esther Gesick; Kim Ogle Subject: Legal Transcript Estimate - Spicer (09/14/09 hearing) Attachments: Fees.doc Tim, I've attached our fees page for your reference. I checked the digital recording and the hearing was 1 hr — 5 minutes, so let's plan on a deposit of $180.00 ($60.00 X 3 times the length of hearing.) I should be able to get started on typing that next week once the payment arrives. Thanks and have a great weekend! Esther E. Gesick Deputy Clerk to the Board Weld County, Colorado 915 10th Street Greeley, CO 80631 (970)356-4000 X4226 (970)352-0242 (fax) NOTES RECEIPT r.: RECEIVED FROM r- ADDRESS DATE fill:. : j NO. 1 9 O Cfl 4 FOR f ACCOUNT, H©W.PAIIID ..AMTr OF ACCOUNT . CASH ..• AMT. .PAID _ ,CHECK( / . ,i...' •BALANCE .... buf . MONEY.. '' ORDER - BY :'?2001 WM. B 8L808 i NI) E S : CJ w 1-- I- L . z �j O • o i _J C7 W C.) RECEIPT RECEIVED FRO ADDRESS FOR DATE /4'/Zt ACCOUNT HOW PAID 4M1. OF ACCOUNI CASH AMT. PAID CHECK-z/>C% MONEY ORDER �� y�-1 [/CJ BALANCE DUE 2001 REINFCNM a HLHP'• Hello