HomeMy WebLinkAbout20081013.tiff WELD COUNTY ATTORNEY'S OFFICE
915 TENTH STREET
acit
P.O. BOX 758
GREELEY, CO 80632
WEBSITE: www.co.weld.co.us
C. PHONE: (970) 336-7235
FAX: (970) 352-0242
COLORADO
March 24, 2008
David Foster, Esq.
621 17`° Street
Denver, CO 80213
Via Federal Express
• RE: Copy of Materials for Appeal of USR-1629
Dear David:
Enclosed is a complete copy of the materials for submitted for the appeal of USR-1629. Please note
the dates on the Resolution setting the hearing.
Feel free to call me at(970) 356-4000, extension 4390, if you have any questions.
Sincerely,
Bruce T. Barker �z— ----
�, Weld County Attorney
Enclosure
pc: Clerk to the Board
• EXlQ$IT
C
2008-1013 us/ 4429
/ • ‘er--
• CLERK TO THE BOARD
IPHONE (970) 336-7215, Ext. 4225
FAX: (970) 352-0242
P. O. BOX 758
C. GREELEY, COLORADO 80632
COLORADO
March 25, 2008
Laura Macken
3153 East Weaver Place
Centennial, Colorado 80121
RE: Transcript Request
Dear Laura:
Enclosed, please find a CD recording of USR-1629, as well as a copy of the Planning Commission
Minutes for your reference. We will require one(1)certified original, (1)certified copy, and one(1)
• digital transmission, via e-mail or CD, of the transcript for Attorney use.
If you have questions or need additional information, please do not hesitate to contact me at(970)
336-7215, Extension 4226.
Very truly yours,
Esther E. Gesick
Office Manager/Deputy Clerk to the Board
NOTES
RECEIPT DATE .fiu)' 1'-- -)Lci NO.
L, <a co Y RECEIVED FROM 'C') Cam! e&
R. ADD$ESS
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> , f( ( /-( a.. �� .� __..-. $ <U.
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=1 F- ACCOUNT HOW PAID ,
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11.1U BALANCE _■ MONEY _■ - _. EXHIBIT
LA ORDER BY '
2001
//S2
SNIT- D
• POWER
Your Touchstone Energy Partner it.�+ (
May 22,2008
Clerk to the Board's Office
C/O Esther Gesick
915 10th Street
Greeley, CO 80631
Dear Ms. Gesick:
Enclosed is payment for the remaining balance of the transcription fee, in the amount of$142.
• Thank you for all of your help.
Please contact me by telephone at(303) 637-1211 or by email at imaxey@unitedpower.com if
you have any questions or concerns.
Sincerely,
UNITED POWER, INC.
//`.
/
S .s.
Jason S. Maxey
District Representative
Enclosure
•
UNITED POWER,INC. PO BOX 929 • Brighton, CO 80601 303-659-0551 • 800-468-8809 • fax 303-659-2172 www.unitedpower.com
Esther Gesick
rom: Esther Gesick
nt: Wednesday, May 14, 2008 10:06 AM
o: 'Jason Maxey'
Subject: Original Transcript
Good Morning Jason,
I received the original certified transcript on May 8th, and sent it to our print shop to
have a copy made. The final invoice from the transcriptionist came to a total of $392.00.
You have already paid a $250.00 deposit, therefore, a balance of $142.00 is due, payable
to Weld County. Upon receipt I will forward the certified original and one copy to you in
the mail.
If you have any questions, 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)
•
•
1
FILE CONTAINS OVERSIZED
MAPS
PLEASE SEE ORIGINAL FILE
FOR USR#1629 FOR EXHIBIT 6.11
April 7, 2008
BOARD OF COUNTY COMMISSIONERS-WELD COUNTY
RE:
LIBERTY RANCH
MEAD, CO
The appeal of the Planning Commission's Denial of a Site Specific Development Plan and Use by Special
Review Permit#1629 for a Major Facility of a Public Utility or Public Agency (electrical substation), subject to
the provisions of Section 23-4-420, in the A (Agricultural) Zone District, for A. Dale Slater Trust B/United
Power.
•
A package delivered on April 7, 2008 to Centennial Center Complex, 915 10th Street, Greeley, CO
`—mature
Date
Package 1 of 2
r,7• EXHIBIT
a
.ir .,
• AN OPEN LETTER TO THE BOARD OF COUNTY COMMISIONERS OF WELD
COUNTY, COLORADO
RE: The appeal of the Planning Commission's Denial of a Site Specific Development
Plan and Use by Special Review Permit#1629 for a Major Facility of a Public Utility or
Public Agency(electrical substation), subject to the provisions of Section 23-4-420, in
the A (Agricultural) Zone District, for A. Dale Slater Trust B/United Power
We, the residents of Liberty Ranch, would like to express our opposition to the proposed
building of a sub station adjacent to our development with the following arguments:
1) The health and welfare of the residents of Weld County, with which you duly
elected commissioners are charged, is at risk. This includes our economic welfare
as well as possible health welfare. There are many statements which report that
there are no health effects from exposure to Electro Magnetic Frequency, also
known as EMF. However, there are just as many articles that report serious side
effects, the most common being leukemia in children, as well as other effects.
While the evidence is inconclusive on both parts, we do not think it is a wise
choice for you to possibly put us as well as our children at risk. On the economic
side,this sub station would more than likely have a negative impact on our
housing values. In an already slumping housing market,this is not acceptable.
• Many of the families in Liberty Ranch have scrimped and saved, and put their life
savings into their homes in this community. Many are dual income families,
scraping to get by, and any equity they may have built up in their homes would be
erased by a negative impact to this community. While people may find realtors to
show that there would be no impact to housing values,other realtors would say
there would be. Again, the evidence is inconclusive for both sides.
2) This sub station,while this community would benefit from it, does not appear to
be critical to this community. There are meeting minutes in which United Power
has stated to Centex that they had enough power to supply this community. If you
look at the proposed development around Liberty Ranch, Foster Creek with
roughly 1700 homes has been approved. Also, Life Bridge has been approved
which is to the south west of our community,and the adjacent areas to the west
have been zoned for residential use. These developments will cause a strain on the
electrical infrastructure that United Power currently has in place. We understand
the need for this substation in order to continue development in this area, but why
should we be asked to pay the price for further development that will negatively
impact our subdivision,and the families that live here.
3) We have been informed that none of the other landowners in this area want to sell
a parcel of land to United Power for this substation. We would suggest to you that
these folks also are concerned with the ability to sell their property with this
• substation sifting on or adjacent to it.
• 4) When we bought homes in this area,we accepted the risk of existing conditions
on and around our development. To the east of us, in our subdivision, is natural
gas storage tank. To the south of us are high voltage power lines, which tap from
a north—south run, changing to an easterly run at this tap location, and border the
north end of the Foster Creek parcel. We knew that the property to the north of us
was zoned for commercial use,and that there would eventually be some kind of
development there. But in the future when this property is developed, I do not
anticipate a 45 story high rise will be built there. We accepted these risks to our
investments into our homes. But now we feel that we are having something
thrown onto us that we were not prepared for. If United Power has made
commitments to supply power to other developments without properly planning
for these needs, that responsibility and consequence needs to fall on their
shoulders, not on our community. I do not know if any of you live by or adjacent
to a substation,but if you do,you accepted the risk and the responsibility of
investing into a home with those conditions, and had the CHOICE of whether to
purchase that home or not. The families that live here now appear to have had that
ability to choose taken from them and made for them without their consent, all
because United Power could only find one landowner willing to sell to them, and
their failure to plan for the future. If I came into this development and saw that
substation sitting there, I would have never bought this home site, and built what I
consider to be my"dream home".
• In conclusion, we are coming before you today to ask for your help in denying this appeal.
We don't know what other options are out there, but have heard that some people on the
other side of the Interstate are willing to negotiate. In addition,we have noticed that the
east-west high voltage line that this substation needs to be built on runs along the
northern border of the Foster Creek parcel. Why can't this substation,which would also
serve this new development, be located on that parcel? Those folks would have the ability
to choose whether they wanted to live there or not if it was in place before that started
development and building. Or could it be that the Foster Creek developers also do not
want this substation in their area,because their home site sales may suffer?Also, it is our
understanding that United Power has the power of condemnation. If they can fmd another
area to put this on that everyone would be agreeable to,why can't they use it?
The previously mentioned arguments pertaining to health concerns and economic
concerns are real, and even though they are inconclusive, we ask what each one of you
would do if faced with this problem. We icalize the residents of Liberty Ranch are but a
tiny part of the Weld County community, but this substation affects the entire population
of Liberty Ranch, and while in your eyes, it may be miniscule, in our eyes it is the world.
We ask that you give our concerns due consideration.
Attached to this letter is a petition signed by Liberty Ranch residents,indicating
agreement with this letter and asking for your assistance in denying permission for
approval of this substation at A. Dale Slater Trust B property.
• Respectfully Submitted April 8,2008
The Residents of Liberty Ranch, Mead, Colorado, County Of Weld Colorado
•
greThe appeal of the Planning Commission's Denial of a Site Specific Development Plan and Use by Special
view Permit#1629 for a Major Facility of a Public Utility or Public Agency (electrical substation), subject to
the provisions of Section 23-4-420, in the A (Agricultural)Zone District, for A. Dale Slater Trust B/United
Power.
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3
eThe appeal of the Planning Commission's Denial of a Site Specific Development Plan and Use by Special
view Permit#1629 for a Major Facility of a Public Utility or Public Agency (electrical substation), subject to
the provisions of Section 23-4-420, in the A(Agricultural) Zone District, for A. Dale Slater Trust B/United
Power.
Name Address / Telephone /Signature
/(4°,7-/ SC re /1.5 %}"(' lj 5-.4(7/' �U/ SCI'— l�`j-//y � i//4/
•
•
April 7, 2008
ORIGINAL PACKAGE DATED NOVEMBER 20,2007
BOARD OF COUNTY COMMISSIONERS-WELD COUNTY
RE:
LIBERTY RANCH
MEAD, CO
The appeal of the Planning Commission's Denial of a Site Specific Development Plan and Use by Special
Review Permit#1629 for a Major Facility of a Public Utility or Public Agency(electrical substation), subject to
the provisions of Section 23-4-420, in the A(Agricultural) Zone District, for A. Dale Slater Trust B/United
'rower.
A package delivered on April 7, 2008 to Centennial Center Complex, 915 10`h Street, Greeley, CO
Sigiiatle
Date
Package 2 of 2
•
EXHIBIT
I H
lest #rGzy
TO: WELD COUNTY PLANNING COMMISSION:
• RE: Case Number USR-1629, Site Specific Development Plan and Use by Special
Review for a Major Facility of a Public Utility or Public Agency (Electrical Substation)
Date: November 20, 2007
This letter is to express our opposition to the proposed United Power electrical substation
which is to be located on County Road 5.5 approximately 1/2 mile south of Highway 66. As
existing residents of the Liberty Ranch community, and constituents of Weld County, we are
requesting that the Commission give full consideration to our objections. We offer the following
concerns:
The location selected by United Power is inappropriate. Liberty Ranch is a community that will
eventually have over 400 homes, a large multi-use park, an elementary school, and small
neighborhood commercial services. The substation is incompatible with residential uses, and
will be located in an area that is targeted on the Weld County Comprehensive Plan as medium
density residential development.
The facility has the potential to diminish property values. The substation will be highly visible
to anyone living in the community, or anyone entering or leaving the community. United Power
has made only minimal attempts at visual mitigation. We believe this could reduce our ability
to re-sell our property in the future, and may have a detrimental affect on our appraisal values.
The timing of the facility is objectionable. Facilities of this nature are usually built prior to
development occurring. We have been denied the ability to make an informed decision about
whether or not to purchase a home that is in proximity to a major utility facility.
• What other sites have been identified or considered? We understand that United Power has a
desire and an obligation to improve their services, and to do so as economically as possible.
However, it appears that United Power has selected the cheapest and easiest solution, at the
expense of Liberty Ranch residents.
We are recommending the following courses of action:
• Continue the November 20th hearing for a minimum of 30 days. Residents need
additional time to consider the full impact and facts of the facility.
• Consider alternative locations. If the facility were located approximately 1/2 mile further
south, in either the southwest or southeast corner of the Slater property, it would be a
far more satisfactory site.
Sincerely
Address:
•
http://www.powerlinefacts.com/Power_Lines_and_Property_Values.htm
The following article was published by The Southwestern Legal Foundation in the Proceedings of the INSTITUTE ON PLANNING
ZONING AND EMINENT DOMAIN Municipal Legal Studies Center,Dallas,Texas,November 18.20, 1998;and The Urban Lawyer,
The National Quarterly on State and Local Government Law,Spring 1999,Volume 31,Number 2.
41
Power Lines and Property Values:
The Good, the Bad, and the Ugly
David R. Bolton, MAI
David R Bolton, Inc.
Austin, Texas
Kent A. Sick
Womack, McClish, Wall & Sick, P.C.
Austin, Texas
1.01. Abstract.
is paper begins with a general review of major scientific and appraisal writings since 1993 on the subject of
EMFs and their effect on real property value. Further,there is a brief examination of current cases, statutes, and
municipal regulations on the subject. Finally, the authors explore the pros and cons of corridor valuation for
expansion of existing utility easements, with an emphasis on the right-of-way marketing efforts of several major
utility companies and using corridor sales data as opposed to traditional "at the fence" methods.
§ 1.02. Review of Original Conclusions.
In 1993, one of the authors took a long look at the then-current relationship between electric transmission lines and
surrounding real estate values. In the article, "Properties Near Power Lines and Valuation Issues: Condemnation or
Inverse Condemnation?," this author presented a broad overview of the subject including the following:
• An examination of scientific inquiry of the day concerning the existence of actual adverse effects of
electromagnetic field radiation(EMF)from major transmission lines on human health;
• Public perception of those effects;
• Straw polls of real estate professionals on their views of whether these lines impact values;
• A survey of 100 residential properties abutting a major power line corridor in Houston relative to their peer
• properties not next to the line;
• A brief review of four important condemnation cases dealing with the potential impact of EMFs on health
and property values, as well as the admissibility of expert appraisal evidence; and
Agency for Research on Cancer classification scheme. A Group 2B classification means that "the agent(mixture)
is possibly carcinogenic to humans. The exposure circumstances entail exposures that are possibly carcinogenic to
humans." 5
Ili Ugly news.
As both the following look at subsequent appraisal literature and common sense make clear, the continuing
scientific uncertainty over the adverse health consequences of EMFs only serves to perpetuate the debilitating
effect of power lines on abutting property values.
§ 1.04. More Recent Literature and Surveys.
[1] Hamilton/Schwann.
In 1995, two academics named Stanley Hamilton and Gregory Schwann published a highly empirical study of
residential home prices in Vancouver, British Columbia. The study contrasted sales in four separate Vancouver
neighborhoods of residences adjacent to power lines of 60kV or greater from 1985 to 1991. The sample size was
impressive, containing 12,907 transactions in the four study areas. The percentage decreases in property values
were not as great as those originally measured in the Houston area in this author's 1993 study. Hamilton/Schwann
nevertheless concluded to an undeniable drop in value "We find that properties adjacent to a line loose 6 3 percent
of their value due to proximity and the visual impact "-The"well supported findings presented in this article lead
one*. conclude that tha depressing effect`power line&have ottproperty values is not merely an American
phenomenon:
[2] Cowger/Bottemiller/Cahill.
ese three real estate professionals employed by the Bonneville Power Administration in Portland, 0regon,gib
lished another study in Right of Way magazine in 1996.This study again concludedthat'overhead transmission
lines,negatively influence valuer "Overhead transmission lines can reduce;the:value of residential and agricultural
property.;The impact is usually small (0-10%)for single-family residential properties. The greatest impacts have
been measured in intensively managed agricultural property(irrigators, etc., and in rural, second (vacation) home
developments."7
[3] Development Strategies Survey.
In 1995, a group of real estate consultants in Missouri conducted a survey of residential brokers and salespersons,
some 167 professionals, all in the St. Louis area. The results were published in a;study concluding that 54%of
those surveyed believed high voltage overhead electric transmission lines("HVOETLs") "very negatively
affected"residential property values;anbther23.8%considered HVOETLs to "somewhat'negatively" affect
property values:
[4] Rikon article.
In January of 1996, a New York attorney named Michael Rikon published an article in the Appraisal Journal
following up on the landmark Criscuola decision, which had just been handed down at the time of this author's
original paper.9 Criscuola was the landmark New York Supreme Court decision;allowing appraisal evidence in
transmission line cases to be based upon fear ill the market place rather than actual epidemiological evidence of
adverse health effects from EMFs. Rikon noted that the Criscuola court's embrace of the "fear in the marketplace"
al1eory of damages had spread beyond transmission line cases to include actions against a cell phone provider to
Wop construction of a tower, against Amtrack to oppose electrification of its tracks in New York, and in increasing
numbers of inverse condemnation eases.10 Clearly, the Criscuola buzz continues to grow.
[2] Potential Legal Liability.
]:n addition, the Texas Health and Safety Code contains at least one provision related to high voltage power lines
(anything over 600 volts)that the authors suspect could have a chilling effect on the values of the underlying
Iseient estate beneath an electric line easement. Chapter 752 of the Code sets out a host of prohibited activities in
1p around power lines, such as restrictions on operation of certain types of machinery or structures near the line
without posting a statutorily-required warning20. Curiously, the Texas Legislature even saw fit to declare violation
of this chapter a criminal offense punishable by jail time, fines, or both.21 Perhaps the most damaging provision,
however, is the one that establishes civil liability to the power line company for any contacts with the line caused
by violations of the statute:
If a violation of this chapter results in physical or electrical contact with a high voltage overhead line,the person,firm,corporation,or
association that committed the violation is liable to the owner or operator of the line for all damages to the facilities and for all liability
that the owner or operator incurs as a result of the contact. 22 [Emphasis added.]
While at first blush an underlying landowner's liability to a power line company for a downed transmission line or
tower seems obvious, the effective global indemnity of the line operator contained in the last clause could
definitely negatively impact underlying property values.
Consider this hypothetical example. Developer John, whose 300 acre tract is bisected by a 138kV power line
easement, is preparing the surface of his newly subdivided tract for roadways with a bulldozer. Inadvertently, the
operator of the bulldozer bumps one of the towers supporting the line. The tower, having been incorrectly
engineered and installed by the power company, immediately falls over on the operator,instantly killing him and
knocking out power to all users serviced by the line. One of the users, a major semiconductor manufacturer, sues
the power line company for consequential damages flowing from the manufacturer's closure of two full shifts
while the line was being repaired and re-energized. Can Developer John possibly be held liable?
1984, a Federal Court sitting in Texas concluded that the "all liability incurred" language of the statute provided
1 indemnity to an electric utility for any claims arising out of any violation, including liability for the electric
utility's awn negligence 23 Subsequently, in 1991 a Texas appeals court held the language extended even to the
"violator" being responsible for the power line operator's attorney's fees, costs, and interest.24 There are few— if
any—other types of"improvements" to real estate that require an underlying landowner to be responsible for
someone else's negligence.
§1.06. A Quick Case Review.
[1] Old cases.
The author's first look at power lines and diminished property values in 1993 contained synopses of three cases
from literally across the country standing for the proposition that fear in the minds of potential purchasers of real
estate was an admissible element of damages in a statutory condemnation proceeding.25 These cases—Criscuola26
from New York,Ryan27 from Kansas, and Daley28 from California—have all survived the appellate,process and
continue to be controlling law in their respective;jurisdictions`
One important distinction has been drawn from this principle of law, however, at least in California. In San Diego
Gas &Electric Co. v. Covalt29, a landowner tried to make out a claim for inverse condemnation caused by a pre-
existing power line based in part on a diminution in value of his property due to fear in the marketplace of EMFs.
The court declined to accept that Daley controlled. The court held rather that while fear in the marketplace was an
acceptable element of damages in a conventional condemnation, such fear could not create a new cause of action
Of inverse condemnation when the power line in question already exists.3°
[2] Coker.
authority and ignore the data and evaluation methods used when the same rights are sold or leased to users of
corridor properties.
[a] Expanding an Existing Easement: The Condemnor's Valuation.
•sider this scenario. A major utility company owns a prior easement which grants the rights for three electric
transmission lines across an approximate 110 acre tract of land in central Texas. A petition is filed to obtain
additional property rights within the easement for the "right to construct, place, operate, maintain, reconstruct,
replace, rebuild, upgrade, remove, inspect, patrol and repair communication lines and facilities and all necessary
and desirable appurtenances on, across, and within the property..." The proposed easement is within the existing
75-foot easement and the length is approximately 1849 lineal feet or about 113 rods.
Citing sales data averaging about 150 acres in size and prices averaging about$1000.00 per acre,the utility
company's appraiser concludes to a market value for the communication easement with the following:
3.24 acres(area of the existing easement)x$ 1000.00 per acre
=$3,224
Value of the property rights within the existing easement
95% or$3,078
Value of the Communication Easement
5%or$162
The Landowner's Valuation.
Assume for purposes of this hypothetical that the condemnor utility company had recently leased a fiber optic line
to a communication company on the basis of$21,312/year, equating to a value of$266,400 (based on a
capitalization rate of.08)or$832 per rod. Utilizing this and other actual market data of sales and lease information
from comparable corridor uses averaging between$300/rod and $880/rod,the landowner's appraiser, considering
the property's true highest and best use, could conclude to a significantly higher value:
113 Rods x$500 per rod= $56,000
Given the foregoing example, it seems manifestly unreasonable for a utility company to consider only the ATF
value when it is purchasing an easement and then turn around and sell or lease the same easement, based on its true
highest and best use, for an exponential profit.
§ 1.08. Arguments Against Corridor Valuation Theory.
[1] Corridor Transactions Are Inadmissible Data.
The traditional rule in Texas has long been that market data involving entities with the power of eminent domain
are legally inadmissible to determine just compensation, because such transactions are not arms-length as a matter
of law.4° There are obvious inequities raised when a utility company is allowed to take using one valuation method
d sell based on another. This fact, considered along with the rationale behind the prohibition against sales
awl
condemnors, leads the authors to believe that a good faith argument exists for the extension of the
existing law.
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High Voltage Power Lines: Do They Affect Residential Property
Value?
• Author info I Abstract I Publisher info I Download info I Related research I Statistics
Author Info
Charles J. Delaney( Charles_Delaneyj Baylor.edu) (Hankamer School of Business Baylor University
Waco, Texas 76798-8004)
Douglas Timmons (College of Business Administration The University of Texas at San Antonio San
Antonio Texas 78285-0633)
Abstract
A survey administered in 1990 suggests that proximity to high voltage power lines is being capitalized
into lower values for residential properties. Respondents who had appraised such property report that
power lines can affect residential property value to varying degrees under certain circumstances and
that the market value of these properties is, on average, 10.01%lower than the market value for
comparable properties not subject to the influence of high voltage power lines. Further, the results
indicate that even appraisers who had not appraised such property believe that power lines contribute
negatively to property value.
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Article provided by American Real Estate Society in its journal Journal of Real Estate Research.
Volume (Year): 7 (1992)
Issue (Month): 3 0
Pages: 315-330
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Handle: RePEc:jre:issued:v:7:n:3:1992:p:3215-330
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Postal: American Real Estate Society College of Business&Public Administration Florida Atlantic University MacArthur
Campus, 5353 Parkside Drive Jupiter FL 33458
• Email:dcooper@fau.edu
Web page: http://www.aresnet.m /
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Postal: Donna Cooper American Real Estate Society College of Business&Public Administration Florida Atlantic
University MacArthur Campus, 5353 Parkside Drive Jupiter FL 33458
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1. Francois Des Rosiers,2002. "Power Lines,Visual Encumbrance and House Values: A Microspatial Approach to
Impact Measurement," Journal of Real Estate Research,American Real Estate Society,vol. 23(3),pages 275-302.
[Downloadablel] (restricted)
• 2. R. Sirpal, 1994. "Empirical Modeling of the Relative Impacts of Various Sizes of Shopping Centers on the
Values of Surrounding Residential ," _Journal of Real Estate Research,American Real Estate Society,
vol. 9(4),pages 487-506. [Downloadable!] (restricted)
http://72.14.205.104/search?q=cache:YxdXJCK1Ag0J:ideas.repec.org/a/j re/issued/v7n31... 12/20/2007
3. Robert A. Simons&William Bowen&Arthur Sementell, 1997. "Tlit Effect of Underground Storage Tanks on
• Residential Property Values in Cuyahoga County.Ohio," Journal of Real Estate Research,American Real Estate
Society,vol. 14(1),pages 29-42. [Downloadable!] (restricted)
• Statistics
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rroperty values Page 1 of 2
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Power Line Health Facts
. . - information for the concerned
mom,.
More EMF Evidence • Specific Diseases • Expert Opinions • International • Property Values • Other
Sources
(See above links for more information)
•Academic
•Government Impact of EMF on Property Values
•Other
Cultural
Summary _
A new television program premiered on t i
the Fox network on March 30, 2003. Fox
These findings were describes the program as follows: ., if. . . •
produced by leading
government authorities In the coming year, 306 people will +.l
based upon research be hit by lightning, 511 people will
conducted for and financed
be carjacked and 217 people will be
by government health attacked by sharks. But only four
authorities.
people will endure them all, and
much more... Meet THE PITTS, the ,-.1.4i1111
"
Accordingly, they do not
suffer from sponsorship unluckiest family in the world.
bias.
The Pitts have another unlucky factor influencing their lives: they live
under a transmission power line, as shown in the screen shot.
Academic:
A new study conducted at St. Cloud University demonstrates that
overhead power lines reduce property values. A similar reduction has
been found in the UK, which does not permit the construction of
overhead power lines without a special authorization from the UK
Secretary of State.
Here is May/June 2001 article in the Assessment Journal that reviews
• the literature and concludes the impact of power lines on residential
property values may result in a 10% reduction
http://72.14.205.104/search?q=cash e:U_GDJcZ_3JUJ:www.powerlinefacts.com/Property... 12/20/2007
rropeny values Page 2 of 2
• An article in the journal, Urban Lawyer concludes power lines reduce
"1` property values by up to 14%, and buttresses it with legal cases.
• Government:
* The Wisconsin Environmental Impact Statement suggests that the
value of property near power lines will decline by between 0% and
14%.
• The California EMF Program in its draft report saw a 5 to 6% reduction
in property values:
"Most high-quality property values studies show some
depreciation of properties near transmission lines, though
much less is known about distribution lines. As a
benchmark, the high-quality property values studies
suggest that there is a property value reduction of around
5-6% for properties near transmission lines, mostly due to
the visual impacts. It is impossible to determine how much
of the property value loss is due to EMF. By making
assumptions about housing density near transmission lines
and about average property values, we calculated
property values impacts to be between $250,000 and
$2,000,000 per mile." However, this language does not
seem to appear in the final report.
« HUD will not issue FHA insured mortgages for houses near
transmission power lines.
Other:
• More information on the adverse impact of transmission lines on
property values was provided at the Steering Committee's information
meeting.
« In the SE Metro Steering Committee meeting, Xcel's consultant, CAI,
developed data suggesting that a new power line would have only a
minor impact upon property values. he data upon which it relied was
drawn from a database maintained by Capital Appraisals, who maintain
that their data was misinterpreted.
• Sunfish Lake concluded in its Findings of Fact that the proposed
power lines would aversely effect property values.
• Real Estate Agents agree on decline in property values.
Table of contents
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http://72.14.205.104/search?q=cache:U_GDJcZ 3JUJ:www.powerlinefacts.com/Property... 12/20/2007
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Esther Gesick
,rom: David Foster[david@fostergraham.com]
ent: Friday, April 18, 2008 11:53 AM
o: Bruce Barker; mmeyer@rothgerber.com
Cc: Esther Gesick; Michelle Martin; Cynthia M. Treadwell
Subject: Re: Appeal Timeline
We do have concerns and my partner will address those shortly in that I am out of the
office. Thanks.
David Wm. Foster
Send from my blackberry. Sorry for typos.
Original Message
From: Bruce Barker <bbarker@co.weld.co.us>
To: Mark Meyer <mmeyer@rothgerber.com>; David Foster
Cc: Esther Gesick <egesick@co.weld.co.us>; Michelle Martin <mmartin@co.weld.co.us>; Jason
Maxey <jmaxey@unitedpower.com>
Sent: Fri Apr 18 11:53 :30 2008
Subject: RE: Appeal Timeline
Mark:
Thanks. I am thinking about your suggested language change. I will get
back with you this afternoon.
David: Any thoughts?
Bruce.
•---Original Message
From: Mark Meyer (mailto:mmeyer@rothgerber.com]
Sent: Friday, April 18, 2008 10:38 AM
To: Bruce Barker; David Foster
Cc: Esther Gesick; Michelle Martin; Jason Maxey
Subject: RE: Appeal Timeline
Bruce and David:
Attached please find our comments to the draft Resolution, both in
clean and redlined formats. In the initial draft, the final resolution
inserted a standard of review that would be applicable in an appeal with
a court, for example, under a 106 matter. Here, Section 2-4-10.D. makes
it clear that the BOCC "shall hear all the available facts pertinent to
the incident . . . and shall render a determination . . . . " As such,
please make the revisions we propose so that we are not adding a
standard which does not apply to this hearing.
Thank you.
Mark A. Meyer, Esq.
Rothgerber Johnson & Lyons LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
Phone: (303) 623-9000
Facsimile: (303) 623-9222
E-mail: "mmeyer@rothgerber.com"
Or**
NOTICE: This electronic mail transmission may constitute an EXHIBIT
attorney-client communication that is privileged at law. It is not
intended for transmission to, or receipt by, any unauthorized persons.
1
USE Z
If you have received this electronic mail transmission in error,
please
delete it from your system without copying it, and notify the sender
by
•ply e-mail, so that our address record can be corrected.
>>> "Bruce Barker" <bbarker@co.weld.co.us> 4/17/2008 4 :27 PM >>>
Mark and David:
Please review the attached. Let me know if you see the need for any
changes.
Esther and Michelle: Please let us know if you see the need for any
changes.
Thanks.
Bruce Barker.
Original Message
From: Mark Meyer [mailto:mmeyer@rothgerber.com]
Sent: Thursday, April 17, 2008 10:36 AM
To: Bruce Barker; David Foster
Cc: Esther Gesick; Michelle Martin
Subject: RE: Appeal Timeline
That timing works for us as well. You mentioned you would run the
draft
Resolution by David and me prior to its submittal to the Board.
morrow
r the remainder of the record is great. Please note that having the
transcript by the 25th is critical to the timeline.
Thank you.
Mark A. Meyer, Esq.
Rothgerber Johnson & Lyons LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
Phone: (303) 623-9000
Facsimile: (303) 623-9222
E-mail: "mmeyer@rothgerber.com"
NOTICE: This electronic mail transmission may constitute an
attorney-client communication that is privileged at law. It is not
intended for transmission to, or receipt by, any unauthorized persons.
If you have received this electronic mail transmission in error,
please
delete it from your system without copying it, and notify the sender
by
reply e-mail, so that our address record can be corrected.
>>> "David Foster" <david@fostergraham.com> 4/17/2008 10:26 AM >>>
•unds good to me. Thanks.
David Wm. Foster
Foster Graham Milstein Miller Calisher, LLP
2
Original Message
From: Bruce Barker [mailto:bbarker@co.weld.co.us]
nt: Thursday, April 17, 2008 10:24 AM
: Mark Meyer; David Foster
Cc: Esther Gesick; Michelle Martin
Subject: RE: Appeal Timeline
David and Mark:
This is the e-mail message I just got from Esther Gesick, Deputy Clerk
to the Board:
"I just got word from the transcriptionist that she was able to get an
FTR tech to fix her Player, so she is doing her best to meet the 25th
deadline. I'll keep you posted. "
I think the schedule that you both have come up with will work. I
would
think that we could have Esther certify everything in the record
except
the transcript and get that to you by tomorrow. Esther and I will
then
push to get the transcript done by the 25th.
If that sounds OK to both of you, I will get the resolution redoing
the
schedule done today to put on the agenda for Monday.
Bruce.
Original Message
om: Mark Meyer [mailto:mmeyer@rothgerber.com]
Sent: Thursday, April 17, 2008 9:57 AM
To: Bruce Barker; David Foster
Subject: Re: Appeal Timeline
Bruce:
Please confirm these dates work for you to include in the draft BOCC
Resolution. You had mentioned the possibility that you will be sending
out a certified copy of the record, excluding and in advance of
obtaining the transcript. For the proposed timing to work, we will
need
to confirm that this works for you and that we will be able to receive
this information in the next day or two. In addition, as David
references, the timing schedule below assumes that the transcript will
be received by Friday, April 25th, and hopefully sooner.
Thank you.
Mark A. Meyer, Esq.
Rothgerber Johnson & Lyons LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
Phone: (303) 623-9000
Facsimile: (303) 623-9222
E-mail: "mmeyer@rothgerber.com"
4111***
NOTICE: This electronic mail transmission may constitute an
attorney-client communication that is privileged at law. It is not
intended for transmission to, or receipt by, any unauthorized persons.
3
If you have received this electronic mail transmission in error,
please
delete it from your system without copying it, and notify the sender
by
0eply e-mail, so that our address record can be corrected.
***********************************************************************
****
»> "David Foster" <david@fostergraham.com> 4/17/2008 9:36 AM »>
I am okay with the timeline provided to me by Mark below:
* Wed April 30 - United Power submit complaint
* Tues May 6th - Response due
* Friday May 9th - United Power reply
* Wed May 14th - Hearing
This assumes that a full record, including transcript, is received by
Friday, April 25th or sooner.
Bruce, if this works for your purposes with the BOCC, we are capable
of
making these deadlines work for us and our client.
•
David Wm. Foster, co-managing partner
Foster Graham Milstein Miller & Calisher LLP
621 Seventeenth St. , 19th Floor
Denver, CO 80293
(303)333-9810
(303) 333-9786 (fax)
www.fostergraham.com <http://www.fostergraham.com/>
PLEASE NOTE: This email message is intended only for the use of the
individual or entity to which it is addressed and may contain
information that is privileged, confidential, and/or exempt from
disclosure. If you are not the intended recipient, you are hereby
notified that any dissemination, distribution, or copying of this
•ommunication is strictly prohibited. If you have received this
ommunication in error, please notify us immediately. FEDERAL TAX
ADVICE DISCLAIMER: We are required by U.S. Treasury Regulations to
inform you that, to the extent this message includes any federal tax
advice, this message is not intended or written by the sender to be
4
used, and cannot be used, for the purpose of avoiding federal tax
penalties.
•
•
•
5
•
RESOLUTION
RE: AMEND SETTING OF HEARING DATE, SETTING OF BRIEFING SCHEDULE,AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION
DENIAL OF USE BY SPECIAL REVIEW#1629 FOR A MAJOR FACILITY OF A
PUBLIC UTILITY OR PUBLIC AGENCY
WHEREAS,the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado,and
WHEREAS,on January 15,2008, in accordance with Chapter 23 of the Weld County
Code,the Weld County Planning Commission voted to deny the application of A. Dale Slater
Trust B,Attn: Nancy Slater, 13433 County Road 7, Longmont, Colorado 80504/United Power,
Inc., 500 Cooperative Way, P.O. Box 929, Brighton, Colorado 80603,for a Site Specific
Development Plan and Use by Special Review Permit#1629 for a Major Facility of a Public
Utility or Public Agency(electrical substation), subject to the provisions of Section 23-4-420, in
the A(Agricultural)Zone District,and
WHEREAS,on March 14,2008, United Power submitted an appeal of the Planning
Commission's findings, pursuant to Section 2-4-10 of the Weld County Code, and
WHEREAS, by and through Resolution 2008-0914,the Board set a public hearing on
April 23, 2008, at 9:00 a.m.,for the purpose of taking oral argument and considering said
• appeal,with an accompanying briefing schedule,and
WHEREAS,the completion of the transcription of proceedings before the Planning
Commission on January 15,2008, has been delayed and,as a result,the hearing date and
briefing schedule set in Resolution 2008-0914 must be modified, and
WHEREAS,the Board of County Commissioners now deems it advisable to amend its
hearing setting and briefing schedule, and to establish the criteria for the appeal so as to assist
the parties in their briefing and preparation for said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County,Colorado,that a public hearing to take oral argument and to consider the appeal
of the Planning Commission's denial of a Site Specific Development Plan and Use by Special
Review Permit#1629 for a Major Facility of a Public Utility or Public Agency(electrical
substation),subject to the provisions of Section 23-4-420, in the A(Agricultural)Zone District,
for A. Dale Slater Trust B/United Power, be, and hereby is, scheduled for May 14, 2008, at
9:00 a.m.,and that the hearing originally set for April 23, 2008, be,and hereby is,vacated.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be,and hereby
is,ordered to obtain a transcript of the proceedings before the Planning Commission on January
t Formatted:Font:8 pt
4005522311.11 2008-** I.-
PL1963
•
•
15,2008,and to include it in a complete record of the case being certified by the Clerk no later
than April 25,2008.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be,and hereby
is,ordered to send a copy of the complete certified record of the case to persons who request a
copy of the same and to the Board for its review.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is,ordered to send notice of said May 14, 2008, hearing to those persons who previously
received notice of the January 15,2008, Planning Commission hearing.
BE IT FURTHER RESOLVED by the Board that United Power shall have to and until to
April 30,2008, in which to file its brief in the appeal;any persons wish to respond in writing to
the United Power brief shall then have to and until May 6,2008,to file such response; and
I United Power shall then have to and until May 9,2008,in which to file a reply to any responses
thus filed.
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to determine
whether or not it should grant the appeal shall be whether United Power has met its burden of
proof under Section 23-4-420 and the applicable standards set forth in Section 23-2-400 with
respect tq,the Site Specific Development Plan and Use by Special Review Permit#1629 for a Deleted:the Planning Commission
Major Facility of a Public Utility or Public Agency(electrical substation), subject to the provisions exceeded its jurisdiction or abused its
of Section 23-4-420, in the A(Agricultural)Zone District,for A. Dale Slater Trust B/United discretion in denying
Power.
• The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of April,A.D.,2008.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
William H. Jerke, Chair
Weld County Clerk to the Board
Robert D. Masden, Pro-Tem
BY:
Deputy Clerk to the Board
William F. Garcia
APPROVED AS TO FORM:
David E. Long
County Attorney
Douglas Rademacher
2008-**
PL1963
•
•
Date of signature:
S
4 Formatted:Font:8 pt
100552231/1 k 2008-"1
PL1963
•
4.--- a
111) CLERK TO THE BOARD
• PHONE (970)336-7215, EXT.4218
FAX: (970)352-0242
P.O. BOX 758
wiiGREELEY, COLORADO 80632
C.
COLORADO
STATE OF COLORADO)
ss
COUNTY OF WELD )
I, Esther E. Gesick, Deputy Clerk to the Board of County Commissioners, in and for the
County of Weld, State of Colorado, do hereby certify that the attached E-mails are evidence that
a complete electronic copy of the original case on file in the Weld County Clerk to the Board's office
for the appeal by A. Dale Slater Trust B / United Power, Inc., of the Planning Commission Denial
of A Site Specific Development Plan and Use by Special Review Permit#1629 for a Major Facility
of a Public Utility or Public Agency (electrical substation), subject to the provisions of
Section 23-4-420, in the A(Agricultural)Zone District, was provided to the persons who requested
• a copy of the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of said County
at Greeley, Colorado, this 18th day of April, 2008.
mo ' EO x
:Qa. CQ - "O/
DEPUTY CLERK TO THE B.( ` �t0
a
• EXHIBIT
3 3—
U5.e #/4°
Esther Gesick
om: Esther Gesick
nt: Thursday, April 17, 2008 4:26 PM
o: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File -Dale A. Slater Trust/United Power
Attachments: desktop-34.tif; 2008-0999.tif; desktop-1.tif; desktop-2.tif; desktop-3.tif; desktop-4.tif;
desktop-5.tif; desktop-6.tif; desktop-7.tif; desktop-8.tif; desktop-9.tif; desktop-1O.tif;
desktop-11.tif; desktop-12.tif; desktop-13.tif; desktop-14.tif; desktop-15.tif; desktop-16.tif;
desktop-17.tif; desktop-18.jpg; desktop-19.jpg; desktop-20.jpg; desktop-21.jpg;
desktop-22.jpg; desktop-23.jpg; desktop-24.jpg; desktop-25.jpg; desktop-26.jpg;
desktop-27.jpg; desktop-28.jpg; desktop-29.jpg; desktop-3O.jpg; desktop-31.jpg;
desktop-32.tif; desktop-33.tif
J ±1 A J J J siii
desktop-34.tif(22 2008-0999.tif(529 desktop-1.tif(28 desktop-2.tif(25 desktop-3.tif(31 desktop-4.tif(6 KB) desktop-5.tif(32
KB) KB) KB) KB)KB) KB) KKBB))I
A A ±1J ±1J
desktop-6.tif(45 desktop-7.tif(42 desktop-8.tif(38 desktop-9.tif(34 desktop-10.tif(39 desktop-11.tif(23 desktop-12.tif(44
KB) KB) KB)a KB) KB) KB) KB)
A � J A
�e sktop-1B3) (15 desktop-14.tif(19 desktop-15.tif(12 desktop-16.tif(19 desktop-17.tif(25 desktop-18.jpg desktop-19.jpg
KB) KB) KB) KB) KB) (339 KB) (208 KB)
Iti Ili id A A A iti
desktop-20.jpg desktop-21.jpg desktop-22.jpg desktop-23.jpg desktop-24.jpg desktop-25.jpg desktop-26.jpg
(215
KB) (198 KB) (202 KB) (193 KB) (199 KB) (191 KB) (190 KB)
J A A A -±1 ii
desktop-27.jpg desktop-28.jpg desktop-29.jpg desktop-30.jpg desktop-31.jpg desktop-32.tif(26 desktop-33.tif(564
(191 KB) (175 KB) (186 KB) (164 KB) (182 KB) KB) KB)
Gentlemen,
I will be sending the documents via a series of e-mails due to the size of the file.
Attachment #2008-0999 is the Planning Commission Resolution and Minutes. The attachments
titled desktop-1 through 34 include Staff's Inventory List, Comments, various
correspondence, sign posting certification and photographs, and a Field Check. I
apologize that these will come through as separate attachments due to the color scanning
of staff's PowerPoint presentation. The remainder of the file will come under separate e-
mail.
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970) 352-0242 (fax)
•
1
Esther Gesick
oabom: Esther Gesick
nt: Thursday, April 17, 2008 4:35 PM
: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File- Dale A. Slater Trust/United Power(E-mail #2)
Attachments: desktop-23.jpg; 2008-1001.tif; desktop-1.tif; desktop-2.tif; desktop-3.tif; desktop-4.tif;
desktop-5.tif; desktop-6.jpg; desktop-7.jpg; desktop-8.jpg; desktop-9.jpg; desktop-10.jpg;
desktop-11.jpg; desktop-12.jpg; desktop-13.jpg; desktop-14.jpg; desktop-15.jpg;
desktop-16.jpg; desktop-17.jpg; desktop-18.jpg; desktop-19.jpg; desktop-20.jpg;
desktop-21.jpg; desktop-22.jpg
J J J J ■
desktop-23.jpg 2008-1001.tif(144 desktop-1.tif(31 desktop-2.tif(44 desktop-3.tif(38 desktop-4.tif(41 desktop-5.tif(29
(110 KB) KB)EU KB) KB) KB)N KB) KB)
iiii J kg
Ili iji
desktop-6.jpg(234 desktop-7.jpg(131 desktop-8.jpg(92 desktop-9.jpg(119 desktop-10.Jpg desktop-11.jpg desktop-12.jpg
KB) KB) KB) KB) (105 KB) (145 KB) (257 KB)
K K K
desktop-13.jpg desktop-14.jpg desktop-15.jpg desktop-16.jpg desktop-17.jpg desktop-18.jpg desktop-19.jpg
(127 KB)
• --• it i A
desktop-20.jpg desktop-21.jpg (96 desktop-22.jpg
(245 KB) KB) (150 KB)
Gentlemen,
Attached are documents #2008-1001 (legal notices) , and the appeal materials which are also
under 23 separate attachments due to color scanning.
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970) 352-0242 (fax)
•
1
Esther Gesick
oom: Esther Gesick
nt: Thursday, April 17, 2008 4:38 PM
o: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File -Dale A. Slater Trust/ United Power(E-mail #3)
Attachments: 2008-1005.tif; 2008-1003.tif; 2008-1004.tif
J J1
2008-1005.tif(425 2008-1003.tif(524 2008-1004.tif(151
KB) KB) KB)
Gentleman,
Document #2008-1003, USR Application materials
Document #2008-1004, Referrals without Comments
Document #2008-1005, Referrals with Comments
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970) 352-0242 (fax)
•
•
1
Esther Gesick
oom: Esther Gesick
nt: Thursday, April 17, 2008 4:43 PM
o: 'david@fostergraham.com'; 'mmeyer@rothgerber.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File- Dale A. Slater Trust/ United Power(E-mail#4)
Attachments: desktop-9.tif; 2008-1OO7.tif; desktop-1.jpg; desktop-2.jpg; desktop-3.jpg; desktop-4.jpg;
desktop-5.jpg; desktop-6.jpg; desktop-7.tif; desktop-8.tif
desktop-9.tif(96 2008-1007.tif(732 desktop-1.jpg(143 desktop-2.jpg(197 desktop-3.jpg(137 desktop-4.jpg(159 desktop-5.jpg(184
KB) KB) KB) KB) KB) KB) KB)
desktop-6.jpg(177 desktop-7.tif(36 desktop-8.tif(76
KB) KB) KB)
Gentleman,
Document #2008-1007, Deeds
Attachments 1-9, Maps
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
970)356-4000 X4226
770)352-0242 (fax)
•
1
Esther Gesick
cm: Esther Gesick
nt: Thursday, April 17, 2008 4:44 PM
o: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File- Dale A. Slater Trust/ United Power(E-mail#5)
Attachments: 2008-10O9.tif; desktop-17.tif; desktop-1.tif; desktop-2.tif; desktop-3.tif; desktop-4.tif;
desktop-5.tif; desktop-6.tif; desktop-7.tif; desktop-8.tif; desktop-92; desktop-1O.tif;
desktop-11.jpg; desktop-12.tif; desktop-13.tif; desktop-14.tif; desktop-15.tif; desktop-16.tif
±1 J J ±1 ±1 J ±1
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Gentlemen,
Document #2008-1009, Utilities
•tachments 1-17, Surrounding Property Owners (includes color scan)
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970)356-4000 X4226
(970) 352-0242 (fax)
•
1
Esther Gesick
,rom: Esther Gesick
ent: Thursday, April 17, 2008 4:47 PM
o: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File -Dale A. Slater Trust/United Power(E-mail #6)
Attachments: soil-3.jpg; desktop-1.tif; desktop-2.tif; desktop-3.tif; desktop-4.tif; desktop-5.tif; desktop-6.tif;
desktop-7.tif; desktop-8.tif; desktop-9.tif; desktop-10.tif; desktop-11.tif; desktop-12.tif;
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desktop-19.tif; desktop-20.tif; desktop-21.tif; desktop-22.tif; desktop-23.jpg; soil-1.jpg;
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Gentlemen,
Attachments Soil 1-3, Soil Survey
Attachments 1-23, Planning Commission Exhibit 5
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970)352-0242 (fax)
•
1
Esther Gesick
000m: Esther Gesick
nt: Thursday, April 17, 2008 4:50 PM
: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File- Dale A. Slater Trust/ United Power(E-mail #7)
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Gentlemen,
1
This e-mail contains the 56 pages of Planning Commission Exhibits 6.A thru 6.I.
Esther E. Gesick
•eputy Clerk to the Board
15 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970) 352-0242 (fax)
•
•
2
Esther Gesick
o Esther Gesick
nt: Thursday, April 17, 2008 4:54 PM
o: 'mmeyer@rothgerber.com'; 'david@fostergraham.com'; 'Jason Maxey'
Cc: Bruce Barker
Subject: USR#1629 Appeal Case File -Dale A. Slater Trust/ United Power(E-mail#8)
Attachments: 2008-1013.of
2008-1013.tif(3
MB)
Gentlemen,
This is the last e-mail containing Document #2008-1013, 33 pages of Board of Commissioner
Exhibits received to date.
If you need anything further, please let me know.
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970)356-4000 X4226
(970)352-0242 (fax)
•
•
1
Esther Gesick
0.0m: Bruce Barker
nt: Monday, April 21, 2008 9:25 AM
: Bill Jerke; Rob Masden; Dave Long; Douglas Rademacher; William Garcia
Cc: Michelle Martin; Esther Gesick; Jennifer VanEgdom
Subject: FW: Resolution Redline- United Power Special Use
Attachments: FGMMC email logo 2.jpg
FGMMC email logo
2•jpg(10 KB)...
This came in on Friday and went into "Junkmail. " Pertinent to discussion of Planning Item
2 on the agenda for April 21, 2008.
Original Message
From: Cynthia M. Treadwell [mailto:ctm@fostergraham.com]
Sent: Friday, April 18, 2008 11:55 AM
To: mmeyer@rothegerber.com; Bruce Barker
Cc: David Foster
Subject: Resolution Redline - United Power Special Use
Gentlemen:
Our client will not consent to the redline changes proposed. Respectfully, there are
already several significant jurisdictional issues and this proposed language substantially
lters the scope of the review and does not reflect any of the intent or discussion to
te.
We believe that for clarification purposes an additional sentence needs to be added to the
end of that paragraph as follows: "This appeal shall be conducted in accordance with the
standards of C.R.C.P. 106 (a) (4) . "
Cynthia M. Treadwell
Foster Graham Milstein Miller & Calisher LLP
621 Seventeenth St. , 19th Floor
Denver, CO 80293
(303)333-9810
(303)333-9786 (fax)
www.fostergraham.com <blocked: :http://www.fostergraham.com/>
PLEASE NOTE: This email message is intended only for the use of the individual or entity
to which it is addressed and may contain information that is privileged, confidential,
and/or exempt from disclosure. If you are not the intended recipient, you are hereby
notified that any dissemination, distribution, or copying of this communication is
strictly prohibited. If you have received this communication in error, please notify us
immediately. FEDERAL TAX ADVICE DISCLAIMER: We are required by U.S. Treasury Regulations
to inform you that, to the extent this message includes any federal tax advice, this
message is not intended or written by the sender to be used, and cannot be used, for the
purpose of avoiding federal tax penalties.
• EXHIBIT
1 k.
1 a # ,
Esther Gesick
sorom: Bruce Barker
nt: Monday, April 21, 2008 11:40 AM
: Mark Meyer; David Foster
Cc: Michelle Martin; Esther Gesick
Subject: Resolution
Attachments: 20081157.tif; Other Appeals.doc
20081157.tif(74 Other Appeals.doc
KB) (30 KB)
Mark and David:
The Board of County Commissioners approved the attached resolution today. It is nearly
identical to what I sent to both of you last week (has some minor grammatical and form
changes) .
I provided the Board with Mark's e-mail and suggested language for the 3rd BE IT FURTHER
RESOLVED paragraph. Additionally, I presented Cynthia Treadwell's e-mail sent to me on
Friday. Finally, I presented to the Board the attached Word document, which details two
instances in the Weld County Code where there are specific references to the criteria for
appeal.
My advice to the Board of County Commissioners was to approve the resolution as presented
in its attached form. No changes were made to the langauge in the last BE IT FURTHER
ESOLVED paragraph. My advice is based upon the belief that it is proper for the Board to
eat this as a review of a lower body's decision, much like a 106 (a) (4) proceeding. The
wo examples in the Word document are from different chapters of the Code. The Chapter 3
appeal procedure is for a grievance decision made by the Personnel Grievance Board. The
criteria there is somewhat similar to that of a 106 (a) (4) appeal. The Chapter 20 appeal
procedure is for a decision made by the Director of Public Works regarding a road impact
fee calculation. In that instance, the Board of County Commissioners can substitute its
own decision for that made by the Director (which I think was the procedure being proposed
by Mark) . I told the Board that this situation seems to me to be more like that of the
Personnel Grievance Board appeal process, where the Board gives deference to the lower
body that it appointed to make such decisions. I also told the Board that it was my
opinion that the Board could either grant or deny the appeal. If the Board grants the
appeal, it may only then remand to the Planning Commission with directions to take more
evidence, or say, "based upon the evidence in the record, when you made your decision, you
exceeded your jurisdiction in doing so -- rethink it against the criteria in the Code. "
Thanks for your input. I will ask Esther to transmit the transcript to you immediately
upon our receipt of the same.
Bruce Barker.
• EXHIBIT
I L
1 Lisa*te029
• CHAPTER 3
Human Resources
Sec.3-4-70.Grievance hearing.
I. Review of appeal.
1. The Director of Human Resources shall transmit the Grievance Board's decision, the
notice of appeal and any memorandum brief to the Board of County Commissioners for review.
2. The Board of County Commissioners may affirm the Grievance Board's decision,
modify it in whole or in part, or remand the matter to the Grievance Board for further fact-
finding. A modification may only be made if,based upon the Grievance Board's findings of fact,
the decision is clearly wrong or is in excess of the Grievance Board's jurisdiction, authority,
purposes or limitations as defined by this Chapter and the procedures outlined in Chapter 2 of this
Code. The Board of County Commissioners may review the entire hearing record upon a majority
vote of the Board of County Commissioners.
CHAPTER 20
Road Impact Fees
Sec.20-1-330. Standards.
• If, on the basis of generally recognized principles of impact analysis, it is determined that
the data, information and assumptions used by the applicant to calculate that the Independent Fee
Calculation Study satisfy the requirements of this Section, the fee determined in the Independent
Fee Calculation Study shall be deemed the fee due and owing for the proposed traffic-generating
development. The adjustment shall be set forth in a Fee Agreement. If the Independent Fee
Calculation Study fails to satisfy the requirements of this Section, the fee applied shall be that fee
established for the traffic-generating development in Section 20-1-220 above.
Sec.20-1-340.Appeal of decision.
A. A fee payer affected by the administrative decision of the Director on an Independent
Fee Calculation Study may appeal such decision to the Board of County Commissioners,by filing
with the Director within ten (10) days of the date of the written decision a written notice stating
and specifying briefly the grounds of the appeal.
B.The Board of County Commissioners, after hearing, shall have the power to affirm or
reverse the decision of the Director. In making its decision,the Board of County Commissioners
shall make written findings of fact and conclusions of law, and apply the standards in Section 20-
1-330 above. If the Board of County Commissioners reverses the decision of the Director, it shall
instruct the Director to recalculate the fee in accordance with its findings. In no case shall the
Board of County Commissioners
•
Rj
• �
Tt
One Tabor Center, Suite 3000
R O T H C E R B E R 1200 Seventeenth Street
Richard K. Clark Denver, Colorado 80202-5855
Attorney at Law JOHNSON 8 Telephone 303.623.9000
303.628.9531 Fax 303.623.9222
rclark@rothgerber.com LYONS LLP www.rothgerber.com
Denver • Colorado Springs • Casper
April 25, 2008
r =u t=i
Esther E. Gersick C. +rp
Office Manager/Deputy Clerk to the Board t a
Weld County Board
P.O. Box 758 --
1[ i r1 =1
Greeley, CO 80632 U.. o
CD
Re: Appeal of USR-1629
Dear Deputy Clerk to the Board:
• Attached please find an original and one copy of the Objection to Appeal Criterion with
respect to the above-referenced case. Please return a file-stamped copy for our files in the self-
addressed stamped envelope, which I have provided.
Should you have any questions, please give us a call. Thank you.
Very truly yours,
ROTHGERB OHNSON & LYONS LLP
Diane Encinias, Assistant to
Richard K. Clark, Esq.
/dme
Enclosures
cc: Weld County Board of Commissioners (w/encl.)
Bruce T. Barker, Esq. (w/encl.)
David W. Foster, Esq. (w/encl.)
Richard K. Clark, Esq. (w/encl.)
Mark A. Meyer, Esq. (w/encl.) EXHIBIT
• � m
usrz *Pen
{00554905/I}
06 :
I
• BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Case Number: USR-1629
Appeal Pursuant to § 2-4-10 of denial of Site Specific
Development Plan and Use by Special Review
2--,
Applicant: A. DALE SLATER TRUST B (UNITED
POWER)
D
OBJECTION TO APPEAL CRITERION =
Applicant A. Dale Slater Trust B through United Power, Inc. ("Applicant") objects to the
criterion to grant the Appeal which is set forth by the Board of County Commissioners in its
Resolution of April 21 because the criterion and standard of a review by the Board to determine
whether the Planning Commission "exceeded its jurisdiction or abused its discretion" is contrary
to the Code of Weld County, is inconsistent with the processing of this case by the Planning
Commission, and violates the constitutional rights of the Applicant.
• In support of this objection, Applicant states as follows:
1. During September, 2007, Applicant submitted an application for a Site Specific
Development Plan and Use by Special Review to construct an electric substation for a public
utility on a portion of Applicant's property in Weld County.
2. Thereafter, the Department of Planning Services of Weld County gathered
information including input from numerous referral agencies. After reviewing the case under all
of the standards set forth in § 23-2-4000 of the Weld County Code, the Department of Planning
recommended approval.
3. However, following review of the case on Tuesday, January 15, 2008, the
Planning Commission "recommended" that this application be denied by a vote of 3 to 2 with 4
members absent. The Resolution evidencing the "recommendation" of denial is attached at
Exhibit A to this Objection.
4. Applicant has appealed the decision of the Planning Commission to the Board of
County Commissioners in accord with Section 2-4-10, a copy of which is attached at Exhibit B to
this Objection.
5. The Board of County Commissioners decided to hear the appeal and has issued a
Resolution on April 21, 2008 which states that the criterion the Board will use to determine
• whether the appeal should be granted "shall be whether the Planning Commission exceeded its
jurisdiction or abused its discretion" in recommending denial of the application. A copy of the
Resolution is attached as Exhibit C.
{00554295/I}
• 6. The criterion "exceeded its jurisdiction or abused its discretion" is not set forth in
the Weld County Code. To the contrary, Section 2-4-10 of the Code (Exhibit B) simply states
the Board of County Commissioners "shall hear all the available facts." The appeal is thus a de
novo proceeding during which the Board receives the facts, determines whether the Applicant has
met its burden of demonstrating that there is a need for the facility pursuant to Section 23-4-420
(attached at Exhibit D) and whether the standards enumerated under Section 23-2-400 are met.
7. The Resolution of April 21, 2008 (at Exhibit C) seeks to establish a criterion and
standard which is not based on the Code of Weld County. The criterion "exceeded its
jurisdiction or abused its discretion" is the test applied by a Colorado District Court's review of a
decision by a governmental body such as a Board of County Commissioners pursuant to the
Colorado Rules of Civil Procedure, Rule 106(a)(4). There is no law in Colorado or provision of
the Weld County Code which applies this judicial standard to an appeal from a decision of the
Planning Commission to the Board of County Commissioners.
8. The criterion which the Resolution (at Exhibit C) seeks to establish is inconsistent
with the acts of the Planning Commission on which the Applicant has relied. The Resolution of
Planning Commission in the case clearly states that the Planning Commission is
"recommending" disapproval of the application to the Board of County Commissioners.
Pursuant to that Resolution, the Board of County Commissioners should receive all available
facts pursuant to Section 2-4-10, apply the standards of Section 23-2-400, and then decide
whether the Planning Commission's "recommendation" should be implemented or not. The
• criterion of whether the Planning Commission "exceeded its jurisdiction or abused its discretion"
is totally inconsistent with this process. The Planning Commission merely made a
"recommendation" of denial although the Planning Department recommended approval; the
Board will now decide the case.
9. Changing the Board's standard of review while the case is pending by adding a
criterion not identified in the Weld County Code violates due process protections afforded
Applicant pursuant to the Fifth Amendment to the U.S. Constitution and Section 25, Article II of
the Colorado Constitution.
Respectfully submitted this 25th day of April, 2008.
ROTHGERBER J SON & LYONS LLP
Ric . Clark, #2753
Mark A. Meyer, #26176
1200 17th Street, Suite 3000
Denver, CO 80202
Telephone: 303-623-9000
• Facsimile: 303-262-9222
Attorneys for Applicant United Power, Inc.
(00554295/I) - 2-
CERTIFICATE OF MAILING
I hereby certify that on this 25th day of April, 2008, a true and correct copy of the
foregoing OBJECTION TO APPEAL CRITERION was served by placing the same in the U.S.
Mail, first class postage prepaid, addressed as follows:
Weld County Board of Commissioners
915 Tenth Street
P.O. Box 758
Greeley, CO 80632
Bruce T. Barker, Esq.
Weld County Attorneys Office
915 Tenth Street
P.O. Box 758
Greeley, CO 80632
David W. Foster, Esq.
Foster Graham Milstein & Calisher LLP
621 17th Street, 19th Floor
Denver, CO 80293
• teja-n- Sc4.0e4;4--
{00554295/I
RESOLUTION OF THE WELD COUNTY PLANNING COMMISSION
Moved by Robert Grand that the following resolution be introduced for denial by the Weld County Planning
Commission. Be it resolved by the Weld County Planning Commission that the application for:
CASE NUMBER: USR-1629
APPLICANT: A. Dale Slater Trust B
PLANNER: Michelle Martin
LEGAL DESCRIPTION: SE4 of Section 28,T3N,R68W of the 6th P.M.,Weld County,Colorado.
REQUEST: Site Specific Development Plan and Use by Special Review for a Major Facility
of a Public Utility or Public Agency(Electrical Substation),subject to the
provisions of Section 23-4-420 in the A(Agricultural)Zone District.
LOCATION: North of and adjacent to CR 28 and west of and adjacent to CR 7.
be recommended unfavorably for the following reasons:
The Planning Commission recommends that this request be denied for the following reasons:
1. Section 23-2-400.C. — The design of the proposed facility does not mitigate negative impacts on the
surrounding area to the greatest extent feasible.
Mr.Grand did not believe that had been explored to the fullest possibility.
2. Section 23-2.400.E.—The applicant did not prove,by a preponderance of the evidence,that the measures it
proposed to mitigate or minimize any potential adverse impacts from the proposed facility would ensure that the
health,safety,and welfare of the inhabitants of Weld County would be protected.
Mr.Grand did not think that had been adequately addressed.
3. Section 23-2-400.G.--All reasonable alternatives to the proposal have not been adequately assessed and the
proposed action is not consistent with the best interests of the people of Weld County and represents a
balanced use of resources in the affected area.
Mr. Grand was not convinced that was true either. He added that he felt there was a need for the power.
That was not the issue. He just didn't think these people should not be singled out as opposed to the three
points of the Code he mentioned. To him that was a penalty,and as citizens of the County,they should look to
the Planning Commission for consideration for their welfare.
Additional Commissioner's comments:
Doug Ochsner said he disagreed with Mr. Grand and cited Section 23-2-400.B.,'The facility will not have an
undue adverse effect on existing and future development of the surroundings areas as set forth in applicable
MASTER PLANS." This proposal may have a small effect, but he did not see an undue adverse effect on
future development. He believed most of the concerns can be mitigated. Doug continued that the applicant
must show need for the facility and he thought they had. Growth in the area has been outlined and the need is
obvious with the various subdivisions,residences and businesses planned for the area.Section 23.2-400.E.,
paraphrasing that the applicant has greed to implement and reasonable measures deemed necessary to ensure
health, safety and welfare has shown health and safety of the residents are not an issue on this substation.
Section 23-2-400.G., he believed reasoning must be used and that a point on the map can't be picked
arbitrarily. Other locations had not worked out,United Power had a willing seller and no other alternatives had
arisen.
Nick Berryman cited Section 23-2-400.B.regarding"undo adverse effect"and wanted the Commissioners to
reach more of a consensus on how they define that language and its interpretation.We have an impact on the
Liberty Ranch subdivision. However,do those concerns of the residents meet the criteria for what we would
term an undue adverse effect on their property?
Tom Holton was uncomfortable with how they were doing the motion and said he did not necessarily agree with
the first two sections,but did agree with the third and asked how they reconciled that.
•
•
Motion seconded by Tom Holton.
VOTE:
For Denial Against Denial Absent
Doug Ochsner—Chair
Tom Holton—Vice Chair
Paul Branham
Erich Ehrlich
Robed Grand
Bill Hall
Mark Lawley
Nick Berryman
Roy Spitzer
The Chair declares the resolution passed and orders that a certified copy be placed in the file of this case to serve as a
permanent record of these proceedings.
CERTIFICATION OF COPY
I,Donita May, Recording Secretary for the Weld County Planning Commission, do hereby certify that the above and
foregoing resolution is a true copy of the resolution of the Planning Commission of Weld County,Colorado,adopted on
January 15,2008.
Dated the 15th of January,2008.
Donita
Secretary
•
•
•
•
Sec.2-4-10. Appeals process.
The Board of County Commissioners shall act as a board of appeals to hear complaints on actions taken by
County boards, commissions and departments. Except for decisions made by the Board of Adjustment and
Uniform Building Code Board of Appeals, procedure for appeals shall be as set forth in this Chapter, by
resolution of the Board, or as otherwise provided by law.
A. Any person appealing an action by a County board, commission or department to the Board of County
Commissioners shall file such a complaint, in writing, with the Clerk to the Board within sixty (60)days of the
incident in question.
B. Such complaint shall include:
1. The name of the employee,board,commission or department against which the complaint is made.
2. A description of the basic facts involved in the complaint.
C. The Clerk to the Board shall schedule a hearing with the Board of County Commissioners, to be held
within fifteen(15)days of the filing of the complaint, and shall notify all parties involved in the incident.
D. The Board of County Commissioners shall hear all the available facts pertinent to the incident, may
schedule a second hearing within thirty (30) days following the initial hearing if the Board determines such a
need, and shall render a determination within thirty(30)days of the final hearing.
E. No person shall be denied the right to appeal, provided that he or she complies with the administrative
procedures established by the Board. (Weld County Codification Ordinance 2000-11
•
•
RESOLUTION
RE: AMEND SETTING OF HEARING DATE, SETTING OF BRIEFING SCHEDULE, AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION
DENIAL OF USE BY SPECIAL REVIEW#1629 FOR A MAJOR FACILITY OF A
PUBLIC UTILITY OR PUBLIC AGENCY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on January 15, 2008, in accordance with Chapter 23 of the Weld County
Code, the Weld County Planning Commission voted to deny the application of A. Dale Slater
Trust B, Attn: Nancy Slater, 13433 County Road 7, Longmont, Colorado 80504 / United Power,
Inc., 500 Cooperative Way, P.O. Box 929, Brighton, Colorado 80603, for a Site Specific
Development Plan and Use by Special Review Permit#1629 for a Major Facility of a Public
Utility or Public Agency (electrical substation), subject to the provisions of Section 23-4-420, in
• the A (Agricultural) Zone District, and
WHEREAS, on March 14, 2008, United Power submitted an appeal of the Planning
Commission's findings, pursuant to Section 2-4-10 of the Weld County Code, and
WHEREAS, by and through Resolution 2008-0914, the Board set a public hearing on
April 23, 2008, at 9:00 a.m., for the purpose of taking oral argument and considering said
appeal, with an accompanying briefing schedule, and
WHEREAS, the completion of the transcription of proceedings before the Planning
Commission on January 15, 2008, has been delayed and, as a result, the hearing date and
briefing schedule set in Resolution 2008-0914 must be modified, and
WHEREAS, the Board of County Commissioners now deems it advisable to amend its
hearing setting and briefing schedule, and to establish the criteria for the appeal so as to assist
the parties in their briefing and preparation for said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that a public hearing to take oral argument and to consider the appeal
of the Planning Commission's denial of a Site Specific Development Plan and Use by Special
Review Permit#1629 for a Major Facility of a Public Utility or Public Agency (electrical
substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone District,
for A. Dale Slater Trust B / United Power, be, and hereby is, scheduled for May 14, 2008, at
9:00 a.m., and that the hearing originally set for April 23, 2008, be, and hereby is, vacated.
• BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to obtain a transcript of the proceedings before the Planning Commission on January
2008-**
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15, 2008, and to include it in a complete record of the case being certified by the Clerk no later
than April 25, 2008.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send a copy of the complete certified record of the case to persons who request a
copy of the same and to the Board for its review.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send notice of said May 14, 2008, hearing to those persons who previously
received notice of the January 15, 2008, Planning Commission hearing.
BE IT FURTHER RESOLVED by the Board that United Power shall have to and until to
April 30, 2008, in which to file its brief in the appeal; any persons wish to respond in writing to
the United Power brief shall then have to and until May 6, 2008, to file such response; and
United Powershall then have to and until May 9, 2008, in which to file a reply to any responses
thus filed.
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to determine
whether or not it should grant the appeal shall be whether the Planning Commission exceeded
its jurisdiction or abused its discretion in denying the Site Specific Development Plan and Use
by Special Review Permit #1629 for a Major Facility of a Public Utility or Public Agency
(electrical substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone
District, for A. Dale Slater Trust B / United Power.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of April, A.D., 2008.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
William H. Jerke, Chair
Weld County Clerk to the Board
Robert D. Masden, Pro-Tem
BY:
Deputy Clerk to the Board
William F. Garcia
APPROVED AS TO FORM:
David E. Long
County Attorney
• Douglas Rademacher
Date of signature:
2008-"
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Sec.23-4-420. Public utilities facilities.
Applicants for activities reviewed pursuant to Article II, Division 5 of this Chapter as MAJOR FACILITIES
OF PUBLIC UTILITIES shall have the burden of proof to demonstrate that there is a need for the facility within
the proposed area of service, and the Planning Commission shall be satisfied that a need exists as part of the
determinations for any such permit.
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