HomeMy WebLinkAbout20090568BOARD OF COUNTY COMMISSIONERS
COUNTY OF WELD, STATE OF COLORADO
TRANSCRIPT OF PUBLIC HEARING
IN RE:
HEARING TO CONSIDER APPEAL OF DECISION OF THE BOARD OF
DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT
NO. 1 REGARDING THE GRANTING OF A PETITION FOR
EXCLUSION OF CERTAIN PROPERTY (2,266.118 ACRES OWNED
BY REI, LLC)
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 February 23, 2009,
(continued from February 18, 2009) at 915 10th Street, Greeley,
Colorado, before Esther Gesick, Deputy Clerk to the Board and
Notary Public within and for the State of Colorado, and
TRANSCRIBED by Esther Gesick.
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
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2
APPEARANCES:
BOARD OF COUNTY COMMISSIONERS
William F. Garcia, Chairman
Douglas Rademacher, Pro-Tem
Sean P. Conway, Commissioner - EXCUSED
Barbara Kirkmeyer, Commissioner
David E. Long, Commissioner
WELD COUNTY ATTORNEY OF RECORD:
Bruce T. Barker
APPELLANT'S ATTORNEY:
Richard Lyons, Bernard Lyons Gaddis and Kahn, P.C.
APPELLEE'S ATTORNEY:
Paul Cockrel, Collins Cockrel and Cole
MaryAnn McGeady, McGeady Sisneros, P.C.
ALSO PRESENT:
Esther Gesick, Acting Clerk to the Board
3
PROCEEDINGS
2
3 CHAIR GARCIA: Right, the, uh, Board will come back to
4 order for land use hearing, Wednesday, February 23, 2009, and
5 the matter before us today is SD two thou or, SD0001, which
6 is Docket number 2009-11. Hearing to consider an appeal of
7 decision of the Board of Directors of Beebe Draw Farms
8 Metropolitan District Number One, regarding the Granting of
9 Petition for Exclusion of Certain Property (2,266.118 acres,
10 owned by REI Limited Liability Company). This matter has been
11 continued from last Wednesday, February 18, 2009. Counselor.
12 BRUCE BARKER: Mr. Chairman, um, the -- what you have
13 before you today in electronic format; the first item is the
14 Colorado State Statute dealing with the issue of the appeal of
15 the exclusion. And, you will recall that, uh, we had spoken
16 about that last week. It's Section 32-1-501, and specifically,
17 I think -- believe it's, uh, subsection five - sub b - sub Roman
18 numeral one and Roman numeral two. And that's on page three of
19 that statute.
20 Um, the next two items are the two draft Resolutions.
21 The first one was submitted, uh, by Beebe Draw Farm REI; that's,
22 uh, number 402, and then 403 is draft Resolution as submitted by
23 Bernard Gaddis Lyons and Kahn. Um, and so, those are the two
24 things that -- and I do appreciate the two sides providing
25 those. That was a great, great help. And so, you have, uh, one
4
1 that, uh, is saying grant the -- the uh, appeal, and the other
2 one here is saying, uh, deny the appeal. So those are the two
3 positions that you have before you today.
4 Um, one other thing I wanted to mention, um, there
5 were a number of e -mails that I think that was -- were sent by -
6 - they were unsolicited e -mails from members of the public, uh,
7 that were sent to each of you. I think I got a copy of a couple
8 of them. I had instructed, um, all of you, last Friday, to
9 disregard those, and if you received anything else over the
10 weekend, that you should disregard those e -mails. That in fact,
11 the State statute requires you to consider only that information
12 that has been presented on the record; the record being that
13 which came from the District Board hearing and those
14 proceedings. So, I wanted to make that clear. The other thing
15 was there was a reminder to me about the burden that, um, is
16 present in the appeal. Um, I failed to mention this last week,
17 but I thought I better do it, um, again today. It's about the
18 burden of persuasion is upon the appellant, and that was the
19 reason why we allowed, um, to go first, and second would be the
20 Appellees, and then, finally, with a rebuttal from the
21 appellant, so I just wanted to point that out.
22 CHAIR GARCIA: And, for the record, the, uh, the
23 reminder regarding the burden and, uh, that was shared with
24 Counsel on both sides, correct?
5
1 BRUCE BARKER: Yah, and also, that reminder -- I did
2 send an e-mail through to all of you to remind you of that last
3 Friday.
4 CHAIR GARCIA: Yes, and that was, for the record,
5 shared with both, uh, both sides, correct?
6 BRUCE BARKER: Correct.
7 CHAIR GARCIA: Ok, thank you. Are there any questions
8 for, um, Counsel?
9 COMMISSIONER KIRKMEYER: Sure, I have a question. So,
10 how does that harmonize with the statute? -- When it says that
11 upon appeal to the Board, shall consider the factors set forth
12 in subsection three of the statute that you gave us, and shall
13 make a determination whether to exclude the properties mentioned
14 in the petition or resolution, based on the record developed at
15 the hearing before the Special District Board. So, basically,
16 all we're supposed to be looking at is the record that was at
17 the District Board on --
18
19
20
21
BRUCE BARKER: Correct.
COMMISSIONER KIRKMEYER: -- October 20th.
BRUCE BARKER: Yah, that's correct.
COMMISSIONER KIRKMEYER: To make our determination
22 with the factors in subsection three?
23
BRUCE BARKER: Yah, and subsection three is the one
24 just up from here.
6
1 COMMISSIONER KIRKMEYER: So, and at this point -- all
2 the testimony is closed; the only discussion we have is amongst
3 the Board members at this point?
4 BRUCE BARKER: Correct.
5 COMMISSIONER KIRKMEYER: And we can't garner anymore
6 public information, --
7 BRUCE BARKER: Correct.
8
COMMISSIONER KIRKMEYER: -- `cause it wouldn't matter
9 anyways, `cause it was outside the Board.
10 BRUCE BARKER: That's correct.
11 COMMISSIONER KIRKMEYER: Alright.
12 CHAIR GARCIA: Any other questions for Counsel? Ok,
13 I'll bring it back to the Board, uh, for discussion of the
14 matter. Commissioner Kirkmeyer.
15 COMMISSIONER KIRKMEYER: So, in looking at -- and I
16 did read the record from the, uh, meeting of October 20th, that
17 we had copies of, and went through it and spent several hours,
18 actually, over the weekend looking at it and the statute that
19 was -- um, that we were supposed to be looking at. And it --
20 talks about, we're supposed to make a determination - the best
21 interest of all the following. The first one is the property to
22 be excluded - the Special District. The second one is the
23 Special District from which exclusion is proposed, and the third
24 one being the County. So here's my concern with it not being in
25 the best interest, well -- well, first of all, let me just say -
7
1 - The evidence in the record from the District Board meeting to
2 some, I would say, would probably support that the property to
3 be excluded, it probably is in their best interest because it's
4 about control and who has control. And, in this case, the
5 developer would have complete control again because they would
6 be the only one in that district -- the property owner in that
7 district. Um, so it appears that that would be a -- a, um,
8 interest -- in their best interest.
9 However, in looking at the way they were setting this
10 up; the way this was first developed as an overlapping district.
11 So, you had all the property in District One being taxed on the
12 assessed valuation of what was in District One, which is the
13 whole 4,120, approximately acres. And, then, you had the
14 overlapping district, where you had another district that was
15 just going to do the administration of the services and the
16 operations and the administrations, essentially, and they
17 weren't being taxed. If the exclusion goes through, you now
18 have two separate districts with two separate assessed
19 valuations. And in reading through the record, it's not clear,
20 and I don't have -- I didn't have a map or anything that I could
21 get to, to look at, as to where - one, the oil and gas interests
22 area. But, it's very, I mean I don't think, at least they
23 didn't present any evidence to say that the assessed valuation
24 in both of the districts would be the exact same. So, if the
25 assessed valuation is not the exact same, the way you issue a
8
1 mill levy and bond indebtedness is based on the assessed
2 valuation, the total assessed valuation, so you won't
3 necessarily have a uniform tax, now, across all of the
4 properties in District One and District Two, as was presented at
5 the Special District Board. I mean, they were saying that
6 there's going to be a uniform tax; everybody's still going to be
7 taxed forty mills, eight of that was for bond indebtedness. And
8 yes, I understand that if you exclude the properties out of
9 District One, then form a new District Two, essentially, um, and
10 a new District One, that, yes - if you're in District Two, you
II still have a responsibility to pay the debt that is in -- that
12 has occurred in District One because of State statute. I
13 understand that. But, if there's any further, um, bond
14 indebtedness, which is proposed by District Two, or at least it
15 was in the record, it appeared in the record it was that way,
16 there wouldn't be uniform taxing because you're not going to
17 have the same assessed valuation. So now you have an issue that
18 you don't have uniform taxing across. The other thing is,
19 because you don't have an overlapping District anymore, you
20 don't have one district that has it all; you're essentially
21 changing the financing plan that was approved in 1999. So, to
22 me, that is a material modification, and it also shows why it's
23 not necessarily in the best interest of District Two. I don't
24 think it's in the best interest of District -- of the, um,
25 District One, which is the next thing we're supposed to be
9
1 looking at, because - one, I could not find a lot of evidence in
2 the record, at all, that said anything about why it's in
3 anybody's best interest, other than because we think so. The
4 concern I had that was on the record that said why this was in
5 everybody's best interest, is because, um, I'm looking at my
6 notes here. On page 56 of the record it talks about, that the
7 money would all flow through District Two now, where the
8 developer has control on how it is spent. And, then if you
9 looked on page 55, it goes on further to say that District Two
10 would also have control on how the amenities were -- where it
11 was spent on which amenities and where those would be spent.
12 So, now all the control goes to District Two, which essentially
13 weakens accountability to the taxpayer in District One, which I
14 don't believe would be in their best interest. Um, and even
15 though the District One Board voted for it, it doesn't appear
16 that it would be in their best interest. I couldn't find
17 anywhere, where it actually said we did an analysis of what the
18 tax base would be in each district, as you know -- the District
19 One and District Two, the new ones, and how that would be a
20 benefit to either of the Districts. Um, I couldn't find that
21 anywhere in the record, I mean it just didn't really say it, I
22 mean, it basically -- there were comments about that -- the
23 benefit was, basically, is that District Two would have control
24 and they wouldn't have to worry about potential litigation.
25 Nowhere in the record did they say there was litigation; nowhere
10
1 in the record did they say that they were not getting along;
2 nowhere in the record does it say that they aren't getting the
3 facilities and improvements carried out or brought forward as
4 they're set forth in the Consolidated Service Plan of 1999.
5 They don't make any of those arguments; it's just because we
6 think it would be is all I could get out of the record. And I
7 went through and read the whole thing - all 131 pages of it, and
8 I couldn't find it. Um, the other thing that concerns me, as
9 well, is -- um, right now you have District One, and it's all of
10 them, and you have a platted area, which was Filing One. And,
11 in the record they talked about District Two, which would be
12 Filing Two, which I'm assuming that, and maybe I shouldn't
13 assume, but, in looking at the record, I couldn't find any more
14 that said this. But, it talked about that in Filing Two you
15 would plat the whole Filing Two, but then when you go for
16 inclusion into District One, `cause now you'd have to be
17 included into District One, you would just include one lot at a
18 time, after the home is built. And, in fact, it said that on
19 page -- it's on page 60 and then it's on page 61 again; it talks
20 about filing for inclusion into District One when a home it
21 built or when a resident moves in, versus, the whole platting of
22 Filing Two being included in at one time. So, to me that's kind
23 of piecemeal development, um, again, it goes back to the whole
24 issue of uniform taxing and assessed valuations and what is
25 what. Again, there was not cost benefit analysis that was
11
1 presented on October 20th. Um, and, essentially, it -- it just
2 I don't think that's in the best interest of the County
3 either, even though in the record they said that they thought it
4 was in the County's best interests. In fact, nobody else can
5 determine that, other -- only the County can make that
6 determination. But, um, there just wasn't even sufficient
7 evidence in the record to make that determination, but I think
8 when you have this kind of piecemeal development occur, I don't
9 think that's necessarily in the County's best interest. In
10 fact, I think it starts causing the Assessor more work to do,
11 because now they have to keep comparing what the assessed
12 valuation is and doing a bunch of different things. I mean,
13 it's -- sure it's paperwork kind of stuff, but it's stuff that
14 causes the use of resources; both human, capital, and money and
15 time. Um, so I don't necessarily believe -- I didn't find
16 anything to support that it was in the best interest of the
17 County either. So, those are the first three items, um, that we
18 were supposed to be looking at.
19 One of the next items that we were supposed to be
20 looking at was the relative cost and benefit to the property to
21 be excluded from the provision of the Special Districts. Again,
22 the only benefit I could see in the record, that it specifically
23 states, is -- and the developer put this into the record, that
24 it would put -- that it would reduce friction and limit the
25 potential for litigation. Um, on page 60, again, it talks about
12
1 a possibility of friction and disagreement, um, on page 45 it
2 says it won't as efficient if left this -- left the way it is,
3 yet there is not mention in the record that it's not efficient
4 now. Um, the other thing then, as you go through, and some of
5 these -- it was kind of hard to determine when you look at the
6 statute and try to look at the record. Like the ability of the
7 Special District to provide economical and sufficient service to
8 both the property to be excluded and all the properties within
9 the Special District's boundaries. I don't know if that was
10 supposed to be for District One or for District Two, but again,
11 I couldn't find anything in the record either of those. In
12 fact, one of the things that concerns me, that I did read in the
13 record, is that District One would be required to, basically,
14 transfer title of several amenities. Um, the boating dock and,
15 I don't know - I think I wrote it down someplace, but I don't --
16 I can't think off the top, but, there were some parcels of land
17 that are in District One now, because it's the whole thing, that
18 would have to be titled over to District Two, and I -- I don't
19 know if that's actually beneficial to District One, or not.
20 Sure, it talked about the liability issues, because it's -- the
21 lake I think is one of them as well -- um, but at the same time,
22 they're now transferring property, it's a drop in assessed
23 valuation, and they're also losing control over that property,
24 and they are losing an asset to District One. But, again, I
25 don't understand how that would be a benefit to District One,
13
1 and I didn't find anything in the record to support that it was
2 truly a benefit to District One.
3 Um, the next thing, whether the Special District is
4 able to provide services at a reasonable cost, compared with the
5 cost that would be imposed; I don't think this one really
6 applies, because I didn't find anything in the record that says
7 that they were going to take over fire protection or the library
8 district, or anything of that nature. So, I don't think that
9 one actually applies, and I couldn't find anything in the record
10 to either support it, or not support it.
11 Um, the next one says that the effect of -- and this
12 is "e" -- the effect of denying the petition on employment and
13 other economic conditions in the Special District and the
14 surrounding area. Well, the effect is none. There -- there
15 isn't any because they would be allowed to develop in the manner
16 that they had forth in the Consolidated Plan of 1999, and
17 continue developing that way. So, there isn't any loss for any
18 jobs or anything of that -- because they can still continue to
19 develop. And, if they go and divide the two districts into two
20 distinct districts, instead of overlapping districts, they still
21 are going to continue on. So, there really isn't any effect in
22 denying the petition, `cause it can continue on as -is. And,
23 again, there's no mention in the record that is not being done,
24 and that it isn't being done efficiently; that -- that's not
25 mentioned in the record at all.
14
1 The next one talks about economic impact - this is "f"
2 - the economic impact on the region and the Special District.
3 And, I mean, there is an economic impact on the region and the
4 special district, but if this inclusion -- exclusion should
5 happen, there is no economic impact either, because, again, they
6 can continue on. And, except for the only economic impact may
7 be, is the change in the difference of assessed valuation and
8 the taxing potential, um, of both of the Districts when you make
9 them two separate districts; one district being the 2,200 acres,
10 and the other one being about 1,800 acres. So, that could
11 actually have an economic impact, because you may not actually
12 be able to bond for the amount of money that you need to provide
13 the infrastructure in District Two. Um, splitting the districts
14 does not appear
- and this
is under "g" - does not appear from
15 the record, that it's a feasible alternative.
16
Um, and then, the next one about the additional cost
17 to be levied on the other property within the District. Again,
18 I think that there may be additional cost to be levied on the
19 other properties, but we don't have that because there was no
20 cost benefit analysis; there was no analysis that took place to
21 say this is what the tax will be on District One; this is what
22 the tax on District Two will be, because we didn't have any of
23 that and none of that was present in the record, and I couldn't
24 find it. I did find, however, the Financial Plan was listed in
25 one of the documents that was attached, and it talked about the
15
1 number of lots being, um, sold and developed as you go through
2 the whole thing, um, all the way through 2018, and what that
3 would mean on the Financial Plan.
4 Um, the thing, though that I did also find in the
5 record is that -- um, let me find what page this is on. But, in
6 the record it did talk -- and this was on page 67 -- that the
7 Filing Two, which would be District Two, is not platted, and
8 they state -- and this is on page 67 -- and this is the
9 developer who states there are no plans for filing currently
10 under process. So, essentially, there is no plan for any
11 further development in what would be District Two at this time.
12 So, um, I -- I, in looking at the statute and looking at the
13 record, I couldn't find, really, where it was in anyone's best
14 interest. And, I didn't find anything in the record to
15 substantiate, really, one way or the other. Just because people
16 aren't getting along, or there's the potential for not getting
17 along, I don't think that's a good reason for an exclusion, and
18 I don't think -- and obviously that isn't a reason here within
19 the statute, as well.
20 The other thing that does concern me, is that it does
21 appear that when you exclude the, um, 2,226 from District One,
22 you are making a material modification to the Service Plan,
23 because you are severely monitor or, changing, substantially
24 changing the Financing Plan that was put in place with that
25 Service Plan. And, there was nothing, like I said, in the
16
1 record to say if it would, or would not. It just talked about
2 uniform taxing, and everybody would be taxed. Well, that's all
3 well and fine, but it doesn't mean that everybody's going to be
4 taxed in the same manner.
5 And, um, the other thing is, you may have more -- you
6 could end up with District One paying for infrastructure
7 improvements in District Two. Um, you could have District Two
8 paying for more of the service costs. You could have District
9 Two with an additional mill levy to pay for improvements that
10 occur in District Two. Granted, they would have to go to an
11 election, but their election for bond indebtedness would be only
12 on those properties in District Two, and it would be based on
13 the assessed valuation there, so they may not be able to go into
14 as much debt as originally was planned, um, because I don't --
15 they would have to ask District One, then, to go back to a vote.
16 And, that's very uncertain. Right now, what we have is the
17 certainty, and what the property owners have is the certainty of
18 what is in the Service Plan, the Financial Plan in the Service
19 Plan, and the priorities for the amendments that are supposed to
20 be done. If you exclude out the property, and you amend the
21 Intergovernmental Agreement, you don't have that certainty any
22 longer; you don't have the accountability to the taxpayers. The
23 other thing is, I don't know that we actually have the
24 accountability to the Board of County Commissioners that we
25 should be having from the Special District, because they are
17
1 making a big, huge change. And it's not just a boundary change;
2 it's a financial structure change to the whole thing.
3 The other thing that I just saw somewhere in the
4 record -- mentioned that was in the record, was this whole talk
5 about, um, -- There was some discussion about the guiding
6 principals and the structure that was set up in the 1999
7 Consolidated Service Plan. And in that 1999 Plan, it was
8 intended to have overlapping districts, and that District One
9 would be the mill levy taxing entity, or district, and District
10 Two would be the service provider. They are fundamentally, with
11 this exclusion, they are fundamentally making a change in that
12 guiding principle, because now they are suggesting that District
13 Two would also be a, um, taxing District as well. Um, you know,
14 there are other means of alternative financing. They haven't
15 proven that they even need to do alternative financing at this
16 point, because they don't really have any growth occurring out
17 there. So, um, and again, the 2,226 acres would be more than
18 fifty percent of the area, um, but it's really - they're
19 changing the structure and the guiding principles, and I think
20 that they do need a material modification and they should come
21 to the Board and ask for that.
22 Those are my comments after spending all day Sunday on
23 it.
24
CHAIR GARCIA: Very good. Any other, uh, comments
25 from the Board? Commissioner Rademacher.
18
I
COMMISSIONER RADEMACHER: I came to the same
2 conclusion; however, when I first looked at this - the
3 Metropolitan Board had every authority to do what they did, and
4 they did act within that authority in making this exclusion,
5 `cause nobody did object at the meeting. And, that's what was
6 really of, uh, concerning. However, after reading through
7 everything, I came to much the conclusion as Commissioner
8 Kirkmeyer, as far as the tax identities, and I think it is a
9 substantial change to the Service Plan. So, um, that's pretty
10 well where I'm going at with it too.
11 CHAIR GARCIA: Thank you. Commissioner Long?
12
COMMISSIONER LONG: And I'd have to -- excuse me,
13 before I start. I don't know what I'm down with, but it's a
14 frog. But, um, I came to the same conclusions. I, I found it
15 almost somewhat of a assuredness test in -- in diplomacy between
16 the two organizations, or between the two -- the Board and
17 whatnot, and not being -- I don't want to say disingenuous, or
18 whatever, but just not all the cards on the table. Um, and I
19 don't know what went on behind the scenes, but just reviewing
20 the record, as I did also on Saturday and Sunday, found the same
21 conclusion; that there is a material difference in the way that
22 the taxes are going to be assessed, or what -- what kind of
23 money's going to be available for the infrastructure and the way
24 that the Metropolitan District is formed. So, not to belabor
25 the point, but, I would agree.
19
1 CHAIR GARCIA: I will add, first of all, uh, thank you
2 Commissioner Kirkmeyer. That was an excellent framework of
3 going through the statute. I believe that you collected a lot
4 of the opinions of the rest of the Board -- to adopting that. I
5 too adopt the, uh, findings that you had, Commissioner
6 Kirkmeyer, with several, um, additional points that I'd like to
7 make.
8 First, I also found that the record was not complete,
9 in the sense that, uh, -- I did ask the question regarding the,
10 uh, the reasoning behind having the two districts, and uh, the
11 maintenance of balance. And, that was not very clear in the
12 record itself, or in the briefs that were provided. And, uh,
13 that was an item that, um, more information would have made a
14 decision a little bit easier, um, as well for the, uh, District
15 One Board to have been able to make. Um, let's see -- the
16 concern that I have is that, uh, through the, uh, exclusion of
17 the property from Division One, or, uh, District One, that once
18 development occurs in that area, um, the subsequent purchasers
19 may be left without services in that district, as they would be
20 under the original Service Agreement, removed from District Two.
21 If that, uh, original Service Plan is to be followed -- it that
22 piece of the Original Service Plan is to be followed, they could
23 be left without special district services.
24 I would also include, there were some arguments
25 regarding, uh, the procedural issues that were, uh, made
20
1 involving, uh, the provision of a deposit, uh, notice and, uh,
2 signature on petition for, uh, on property that was involved,
3 and, uh, had shared ownership. I did not find those arguments
4 to be particularly determinative in my, my decision making
5 process. I found that those, uh, notice and deposit issues were
6 resolved in an appropriate manner. I think everybody's had a
7 chance to, uh, -- to uh, repine any further comments. Motion?
8 COMMISSIONER LONG: Or, just so it's on the record; I
9 find that appellants did make -- did, for me, satisfy the burden
10 of proof --
H COMMISSIONER RADEMACHER: I agree.
12
COMMISSIONER LONG: -- in their argument, and I want
13 to also reflect on that the record provided me, also, with the
14 needed, um, avenues for me to come to that decision. Being that
15 Commissioner Kirkmeyer point out, there was a lack of real
16 argument for exclusion, because there really wasn't a cost
17 benefit, there really wasn't those analysis done on the
18 financial piece that would have, for me, been able to satisfy
19 another decision.
20 CHAIR GARCIA: Discussion? Motion?
21 COMMISSIONER KIRKMEYER: I wish to say, I know we have
22 two draft Resolutions in front of us, um, and in looking at the
23 one -- I mean, obviously, from my comments, you know where I'm
24 going. But, in looking at the one that, um, the -- it would be
25 0403, the Draft Resolution by Lyons and Kahn; it appears that
21
1 Section one isn't really something -- I mean, I would agree with
2 Commissioner Garcia's comments about the exclusion and the
3 permit, or the petition, and, you know, the twenty or thirty -
4 nine acres, whatever it was. I can't remember know, but I'm
5 sure it's in here. That doesn't appear that that should really
6 be in our Resolution. From when were looking at the statute, it
7 doesn't even appear like something we should be making a
8 determination on. Is that correct?
9 BRUCE BARKER: That's correct.
10
COMMISSIONER KIRKMEYER: So, um, absent of having an
11 actual resolution right now, other than this one here, if we
12 were to make a motion to deny the -- Actually, maybe I just need
13 to ask you. What would be the proper motion?
14 BRUCE BARKER: I think what, what you're saying is, if
15 you look at the Resolution that's before you -- that's, uh, got
16 number 403 at the end --
17 COMMISSIONER KIRKMEYER: Uh huh.
18
BRUCE BARKER: -- that that doesn't really fit with
19 everything you said. I mean, some of the stuff in there is --
20 you'd agree with, but the other things that you brought up are
21 not included. The points that are detailed there, which go back
22 to subparagraph three of that Section; those are -- the
23 headings, basically, are correct. I mean, that what you were
24 taking a look at, in which you recited in your statement, and
25 so, what I would suggest is that if you'd like to go ahead and -
22
1 - you can make a motion, not so much to approve that Resolution,
2 but to go ahead and take the action, um, however, to include,
3 uh, as to the points that you made -- if there's -- and the
4 one's that all of you made, I think that we could collectively
5 put those, uh, into the Resolution, such that it would flow with
6 what you -- what you're intending it to be. Does that make
7 sense? I mean I -- I'm not certain that you have to go through
8 and put in and strike -- and put in everything from this Draft
9 Resolution. Appreciate having it, but it, in essence, gives you
10 an idea of what it would look like. In that sense, it's not
11 like a land use case, where you've got detailed development
12 standards, detailed conditions that are being placed on the
13 permit. It's in essence, giving reasons why you think that it
14 should be, um, whichever way you go.
15 COMMISSIONER KIRKMEYER: And so, in general, if I make
16 comments that, um, we don't believe it's in the best interest --
17 or, can I just say in general that it does -- well, you know,
18 the 501-3, whatever it is?
19 BRUCE BARKER: Correct.
20 COMMISSIONER KIRKMEYER: Alright. Let me -- let me
21 give it a shot, and if it's wrong, I guess we'll -- we'll make
22 some changes. Um, if that's acceptable?
23 CHAIR GARCIA: Yes.
24
COMMISSIONER KIRKMEYER: Mr. Chairman, pursuant to
25 Section 32-1-501(5)(b)(I), C.R.S., relief set forth in the
23
1 appeal of the decision of the Board of Directors of the Beebe
2 Draw Metropolitan District Number One, regarding the granting of
3 a petition for exclusion of certain property, be, and hereby is,
4 granted, and the exclusion is denied, as more fully stated, for
5 the following reasons. First, I would, along with what I've
6 already put into record, I would say that it -- um, the
7 exclusion is not in the best interests of the property; the
8 exclusion is not in the best interests of the excluding
9 District; the exclusion is not in the best interests of the
10 County. Getting there -- and further, the um, the other
11 provisions that are in, um, relative costs and benefit to the
12 property to be excluded; the ability of the excluding district
13 to provide economical and sufficient service; um, that the --
14 there really isn't any effect on -- on denying the petition or
15 on employment or on economic conditions in the special district
16 and surrounding area. There is not an economic impact on the
17 region or on the special district, surrounding area or state as
18 a whole. Um, there is economically feasible alternatives that
19 are available, and -- this last part; that, um, the exclusion is
20 not a boundary adjustment as contemplated by Section 32-1-207(2)
21 of the Colorado Revised Statutes, and that the exclusion
22 constitutes a material modification of the Service Plan.
23 Accordingly, no exclusion of this property should be granted
24 until Districts Number One and Two seek, and obtain,
24
I modification of the Service Plan, pursuant to the provisions of
2 Section 32-1-207, Colorado Revised Statutes. That cover it?
3 CHAIR GARCIA: There's a -- there's a motion.
4 COMMISSIONER RADEMACHER: I'll second.
5
CHAIR GARCIA: Motion by Commissioner Kirkmeyer, um,
6 as previously read, and second by Commissioner Rademacher. Any
7 further discussion? Seeing none; all those in favor signify by
8 say Aye.
9 BOARD UNISON: Aye.
10 CHAIR GARCIA: Those opposed, say Nay. Motion carries
lI unanimously. Thank you and we are adjourned at 10:35.
12
13
14 [End of discussion/action on Appeal Hearing to Consider Appeal
15 of Decision of the Board of Directors of Beebe Draw Farms
16 Metropolitan District No. 1 Regarding the Granting of a Petition
17 for Exclusion of Certain Property (2,266.118 Acres Owned by REI,
18 LLC) ]
25
1 CERTIFICATE
2
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 of
11 Decision of the Board of Directors of Beebe Draw Farms
12 Metropolitan District No. 1 Regarding the Granting of a Petition
13 for Exclusion of Certain Property (2,266.118 Acres Owned by REI,
14 LLC), before the Weld County Board of County Commissioners,
15 February 23, 2009, and as further set forth on page one. The
16 transcription, dependent upon recording clarity, is true/
17 accurate with special exceptions(s) of any or all precise
18 identification of speakers, and/or correct spelling or any
19 given/spoken proper name or acronym.
20
21
22 Sedj✓'v7
23 Esther E. Gesick, Notary
Dated this 5th day of March, 2009.
��a E .GS<
`NOTARF V
s,.PUBUO
24ORIGINAL ( )
My Commission by s Sept 11 2009
25 CERTIFIED COPY (X )
26
1 INVOICE
2 (Recording/Transcribing)
3
4
5
6
7
8
9
10
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: March 5, 2009
11
12 To: McGeady Sisneros, P.C.
13 450 East 17th Avenue, Suite 400
14 Denver, Colorado 80203-1214
15
16 RE: Transcript of 02/23/2009 Hearing to Consider
17 Appeal of Decision of the Board of Directors of
18 Beebe Draw Farms Metropolitan District No. 1
19 Regarding the Granting of a Petition for
20 Exclusion of Certain Property (2,266.118 Acres
21 Owned by REI, LLC)
22
23 3 hours staff time @ $60.00 per hour - - - $180.00
24 25 pgs. @4.00 - - - - - - - - $100.00
25
26
27 TOTAL, due on receipt, please - - $280.00
McGEADY SISNEROS
March 2, 2009
VIA FEDERAL EXPRESS
Esther Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
McGeady Sisneros P.C.
450 E. 17'^ Avenue, Suite 400
Denver, Colorado 80203-1214
303.592.4380 tel 303.592.4385 fax
www.mcgeadysisneros.com
Re: Deposit for Transcripts of Appeal of Beebe Draw Farms Metropolitan District No. 1
Dear Ms. Gesick:
Enclosed is a check made out to the Weld County Clerk to the Board in the amount of $450.00
for the deposit required to obtain transcripts of the hearings held in front of the Board of County
Commissioners on February 18, 2009 at 10:00 a.m. and February 23, 2009 at 10:00 a.m.
regarding the Appeal of the decision of the Beebe Draw Farms Metropolitan District No. 1. We
would appreciate it if you could prepare the transcripts as soon as possible. Please feel free to
contact me at the phone number above if you require any additional information to prepare the
transcripts. Thank you in advance for your time and attention to this matter.
Very truly yours,
MCGEADY SISNEROS, P.C.
Kristin J. Bow
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Re: Transcript Page 1 of 3
Esther Gesick
From: Esther Gesick
Sent: Tuesday, March 03, 2009 9:46 AM
To: 'Kristin Bowers'
Cc: Bruce Barker; Julia Dybdahl; MaryAnn McGeady
Subject: RE: Transcript
Kristin,
I left a return voice mail with Julia this morning and said that once I wrap up one small project this morning I
should be able to dive into the transcripts. I completed the Minutes and Bruce provided the Resolution, so once
they are signed by the Board I will forward copies to you all to review in the interim. As to the request for
completed transcripts by Friday, I will give it my best, but I may require through the weekend to be sent overnight
on Monday. I'll keep you posted on my progress throughout the week. If you need anything further, please let me
know.
Thanks!
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970)356-4000 X4226
(970)352-0242 (fax)
From: Kristin Bowers[mailto:kbowers@mcgeadysisneros.com]
Sent: Monday, March 02, 2009 7:02 PM
To: Esther Gesick
Cc: Bruce Barker; Julia Dybdahl; MaryAnn McGeady
Subject: Re: Transcript
Thanks, Esther. We sent a check in the amount of $450 to your attention via federal express. You should receive it
tomorrow. I would like to discuss with you expediating this order. We are in a time crunch and need them as soon as
possible. Please let me know how we can accomplish this. Thanks in advance for you help.
The information contained in this communication is confidential, may constitute inside information, is intended only for the
use of the addressee, and is the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this
communication or any part thereof is strictly prohibited and maybe unlawful. If you have received this communication in
error, please notify us immediately by return e-mail and destroy this communication and all copies thereof, including all
attachments.
Original Message
From: Esther Gesick <egesick@co.weld.co.us>
To: Kristin Bowers
Cc: Bruce Barker <bbarker@co.weld.co.us>
Sent: Mon Mar 02 17:00:05 2009
Subject: FW: Transcript
Hi Kristin,
The cost for transcripts is as follows:
3/5/2009
Re: Transcript Page 2 of 3
APPENDIX 5-E, Weld County Code
RATES FOR CLERK TO THE BOARD
TRANSCRIPTS FROM CDs:
$60.00/hour for time spent on the transcription, plus $4.00 per page. (Provides two (2) certified copies of transcript to
requestor.) Minimum charge of $60.00, with a deposit of three (3) times the clock time of the hearing to be paid in advance,
with balance payable prior to receipt of transcript. Transcripts will be completed as staff time is available. Fee nonrefundable.
No deadline will be assured.
Based on 2.5 hours of hearing time X 3 X 60.00 = $450.00 Deposit due
Please let me know if you wish to proceed based on the quoted amount. If so, please forward a check payable to "Weld
County Clerk to the Board" and I will proceed with preparing the transcript.
Thanks!
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970)356-4000 X4226
(970)352-0242 (fax)
Original Message
From: Bruce Barker
Sent: Thursday, February 26, 2009 4:59 PM
To: Esther Gesick
Subject: FW: Transcript
Ideas?
Original Message
From: Kristin Bowers [mailto:kbowers@mcgeadysisneros.com]
Sent: Thursday, February 26, 2009 4:38 PM
To: Bruce Barker
Cc: MaryAnn McGeady; Anna Mercurio
Subject: Transcript
Hi Bruce:
I was wondering what the process is for ordering copies of the transcripts from the BOCC hearing held on Wednesday,
February 18 and Monday, February 23, 2009? Thanks in advance!
Kristin J. Bowers
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, CO 80203-1214
(303) 592-4380 phone
(303) 592-4385 fax
kbowers@mcgeadysisneros.com
The information contained in this communication is confidential, may constitute inside information, is intended only for the
use of the addressee, and is the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this
communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in
error, please notify us immediately by return e-mail and destroy this communication and all copies thereof, including all
3/5/2009
Re: Transcript Page 3 of 3
attachments.
The information contained in this communication is confidential, may constitute inside information, is intended only for the use of the addressee, and is
the property of McGeady Sisneros PC. Unauthorized use, disclosure or copying of this communication or any part thereof is strictly prohibited and may
be unlawful. If you have received this communication in error, please notify us immediately by return e-mail and destroy this communication and all
copies thereof, including all attachments.
3/5/2009
Transcript Time Log
Esther E. Gesick, Deputy Clerk to the Board
915 10th Street, Greeley, Colorado 80631
(970)356-4000 X4226 / cgesick@co.weld.co.us
February 18.2009 Hearing
03/03/09 11:30 - 1:00 =
2:30 - 5:00 =
03/04/09 9:00 - 11:00 =
12:00 - 1:10 =
4:10 - 4:45 =
February 23, 2009 Hearing
1.50 hrs
2.50 hrs
2.00 hrs
1.25 hrs
0.50 hrs
7.75 hrs X $60.00 = $465.00
+ 64 pages X $4.00 = $256.00
$721.00
03/05/09 9:30 - 12:30 = 3.00 hrs
TOTAL BILL:
Deposit
BALANCE DUE:
3.00 hrs X $60.00 = $180.00
+ 25 pages X $4.00 = $100.00
$280.00
$1,001.00
- 450.00
$ 551.00
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