HomeMy WebLinkAbout20080234.tiff HEARING CERTIFICATION
DOCKET NO. 2007-82.6
RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1617
FOR AN OIL AND GAS SUPPORT FACILITY(COMMERCIAL WATER TAP USED BY OIL
AND GAS SPECIFIC EQUIPMENT AND TRANSPORTATION VEHICLES TO SERVICE
OFF-SITE OIL AND GAS OPERATIONS) IN THE A(AGRICULTURAL)ZONE DISTRICT-
JAMES WARNER, C/O RYAN WARNER
A public hearing was conducted on February 6, 2008, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner Robert D. Masden, Pro-Tern
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Chris Gathman
Health Department representative, Pam Smith
Public Works representative, Don Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated September 21, 2007, and duly published
September 26, 2007, in the Fort Lupton Press, a public hearing was conducted on October 10,
2007,to consider the request of James Warner, c/o Ryan Warner,for a Site Specific Development
Plan and Use by Special Review (USR) Permit #1617 for an Oil and Gas Support Facility
(commercial water tap used by oil and gas specific equipment and transportation vehicles to
service off-site oil and gas operations) in the A(Agricultural)Zone District. At said hearing, at the
request of the applicant,the Board deemed it advisable to continue the matter to January 16,2008,
and again to February 6, 2008, in order to allow a representative of the applicant to be present.
At said hearing on February 6, 2008, Bruce Barker, County Attorney, made this a matter of record.
Chris Gathman, Department of Planning Services, presented a brief summary of the proposal,
entered the unfavorable recommendation of the Planning Commission into the record as written,
and gave a brief description of the location of the site and surrounding land uses. He stated 13
referral agencies reviewed the proposal, and 11 offered comments which have been addressed
in the Conditions of Approval and Development Standards. He further stated the proposed use is
located on five acres of a 120-acre agricultural parcel, and the applicant is currently in violation for
operating without the appropriate permit. Mr. Gathman stated, if approved, the facility will be in
compliance; however, if denied,the case will proceed through the Violation process with a request
to delay legal action for 30 days. He stated the applicant is proposing to use an existing oil and gas
access from State Highway 60, circle through the site, and exit back onto the Highway, rather than
utilize County Road 3. In response to Chair Jerke, Mr. Gathman stated the Garcia Planned Unit
Development(PUD) consists of five non-urban residential lots. He explained the site consists of
an existing commercial water tap operated by Magpie Operating,which contracts with outside water
carriers who haul the water to be used at off-site oil and gas facilities. He stated the proposed
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access is approximately 700 feet from the intersection with County Road 3, and the applicant has
obtained an access permit from the Colorado Department of Transportation (CDOT) for the
specified location, which cannot be changed through the USR process. Mr. Gathman stated he
has received three letters of opposition or concern from surrounding property owners, regarding
continued use of the existing Lateral Ditch access road, noise, dust, truck traffic, environmental
quality, and transportation safety. He stated additional concerns were expressed regarding
incompatibility with the Weld County Comprehensive Plan and site zoning, non-compliance with
state and federal air quality standards, and exceeding the allowed number of truck trips per day.
He stated the President of the Las Haciendas PUD Homeowners' Association also expressed
concern with traffic safety, air and noise pollution, lack of screening, and incompatibility with the
surrounding area. Mr. Gathman stated, if approved, several Conditions of Approval and
Development Standards have been added to address compatibility, dust abatement, and
landscaping and screening of the parking and turn around area. He stated there will be a minimum
of ten parking spaces, and the applicant is required to obtain a Ditch Crossing/Access Agreement
with the users of the Lateral Ditch. He further stated the hours of operation will be limited
from 7:00 a.m., to 5:00 p.m., except during emergency situations; the water transport trips will be
limited to ten trips per day; and the applicant will be required to submit water usage totals from the
commercial tap,to the Department of Planning Services,on a monthly basis to ensure compliance.
Mr. Gathman stated the Planning Commission voted to deny the proposal, by a vote of six to one,
based on incompatibility with the surrounding area. In response to Commissioner Rademacher,
Mr.Gathman stated staff initially recommended approval,with the proposed Conditions of Approval
and Development Standards. Chair Jerke commented the number of truck trips and calculation
of water usage may be difficult for County staff to monitor on a long-term basis. Mr. Gathman
displayed photographs of the site and surrounding area.
Pam Smith, Department of Public Health and Environment, stated the site is serviced with a
four-inch water tap from the Little Thompson Water District. She stated the site was previously
accessed from County Road 3,which resulted in the staging of semi-trucks before entering the site.
She stated staff is requiring a septic system, since the proposal allows for parking ten trucks on
the site. She further stated Development Standard #16 restricts the site to the residential noise
standard,which is 55 decibels; however, she does not believe the applicant will be able to comply,
therefore, she recommends increasing the restriction to Light Industrial, which is 70 decibels,
between the hours of 7:00 a.m., and 7:00 p.m. She also referred to a previously submitted
memorandum, marked Exhibit I, restricting the amount of time the engines are allowed to idle
before they must be turned off.
In response to Chair Jerke, Donald Carroll, Department of Public Works,stated the site is serviced
by a four-inch line,and based on testimony presented at the Planning Commission hearing, it takes
20 minutes to fill a truck. He stated the site will be limited to ten tractor-trailers, and ten trips per
day. Mr. Carroll stated the site will be accessed from State Highway 60, which has an average
daily traffic count of 1,200 vehicles, and staff is projecting the traffic volume will increase to 1,900
vehicles per day by the year 2010. He stated CDOT usually encourages property owners to access
properties from a County Road; however, the applicant was granted an access permit on State
Highway 60,which must be 35 feet wide. He stated the internal road will be surfaced with recycled
asphalt, asphalt, concrete, or the equivalent, and it shall accommodate the loading of heavy
tankers. Mr. Carroll stated the access shall be 90 degrees, and the applicant must provide a
tracking pad if recycled asphalt is used. He stated staging and parking of the trucks will not be
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allowed on State Highway 60 or County Road 3. He further stated in March 2007,the average daily
traffic count on County Road 3 was 217 vehicles. In response to Commissioner Rademacher, Mr.
Carroll stated the site will only have one access from State Highway 60, and the oil and gas activity
accessing from County Road 3 could be consolidated to use the Highway access. He further
stated CDOT did not require any improvements, despite the high vehicle count. Responding to
Commissioner Garcia, Mr. Carroll stated a traffic study is necessary to verify whether
improvements are needed. In response to Commissioner Long and Chair Jerke, Mr. Carroll stated
the site is fairly flat, with a slight slope to the south, and the proposed access is approximately 700
feet from the intersection at County Road 3.
Ryan Warner represented the applicant and responded to Chair Jerke by stating the site has a
ten-inch line with a four-inch tap, and it takes approximately 20 minutes to fill a truck. He stated
there is room on the site to park up to ten trucks; however, since the facility is limited to a total of
ten trucks per day, it will be very rare to have them all there at once. He further stated the truck
drivers are on the site for 20 minutes and then leave, and based on the number of trucks using the
facility, he believes portable toilets will be adequate. Mr. Warner stated the site was previously
accessed from County Road 3, with no incident, and they will post additional signage on State
Highway 60 to notify traffic of entering truck traffic. He stated the internal road will be surfaced with
recycled asphalt or concrete, and dust abatement and noise standards will be easy to meet, since
the trucks will only be traveling five miles per hour within the site. He stated they will also be
instructed not to use air brakes or let the engine idle. He further stated it is somewhat difficult to
police speed; however, he feels the speed will be controlled by practical driving judgement due to
the small area and topography of the site. Responding further to Chair Jerke, Mr. Warner stated
the applicant intends to operate as a good neighbor and will not exceed the noise levels. Ms. Smith
explained decibel levels are measured off the property, and she stated the residential standard
of 55 decibels is similar to light auto traffic at 100 feet, an air-conditioning unit at 20 feet is 60
decibels, and 70 decibels is comparable to a vacuum cleaner or freeway traffic at 50 feet. She
stated if the noise standards are exceeded, a citation is given and the applicant must show how
they intend to come into compliance. If that does not work,then staff requires screening; however,
noise levels will be difficult to quantify, since the number of trucks will be different throughout the
day. Mr.Warner stated there will be landscaping,screening,and fencing along the eastern border,
and they are willing to screen along State Highway 60, if needed. Responding to Commissioner
Rademacher, Mr. Gathman stated a majority of the area east of County Road 3 is zoned
agricultural, the Las Haciendas PUD is zoned E (Estate), and he is uncertain of the zoning to the
north within Larimer County. In response to Commissioner Rademacher, Chair Jerke stated the
Agricultural producer across the ditch is under the Right to Farm. Mr. Warner stated they do farm
the land to the east, and did enter into a contract with the ditch operator. He further stated there
is approximately 15 feet of separation between the ditch and the proposed access lane.
Responding to Commissioner Masden, Mr.Warner stated the ditch is elevated above the site, and
any runoff from the site goes to the borrow ditch along County Road 3. Mr. Carroll stated
Development Standards#10 and #11 address maintenance of the historical drainage pattern and
the use of Best Management Practices. In response to Chair Jerke, Mr. Warner agreed he will
need to determine the noise levels of the trucks entering the site, since it is difficult to police the
"no idling" restriction.
Roger Kenney, surrounding property owner, stated some of the neighbors could not be present;
however, they submitted letters, marked Exhibits L and M. He stated he has lived on his property,
which is west of the site across County Road 3, for 16 years. Mr. Kenney stated the applicant has
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been operating illegally for five years,and he displayed various photo boards and maps, previously
submitted at the Planning Commission hearing, marked Exhibit 6.j. He stated there are often eight
to twelve trucks entering the site in the morning and then the activity starts to spread out throughout
the day. He displayed photographs of trucks entering State Highway 60 from County Road 3, and
stated the situation of trucks turning into the lane of oncoming traffic will remain a problem at the
proposed access. Mr. Kenney stated the area surrounding the site is zoned Agricultural or
Residential, and an industrial use should not be allowed. He displayed an aerial photograph of the
site showing three trucks parked on the site, which is common, as well as a photograph depicting
conditions on the site with ten parked trucks and the required landscaping. Mr. Kenney referred
to an aerial photograph showing the proximity of his residence to the site, and stated the new
access will require trucks driving across the site and disrupting the area. He also displayed a map
showing the locations of 32 surrounding homes which will need to be screened from the proposed
use, as well as a map indicating the proposed use is the only one of its kind in the entire Section,
with the exception of a facility in the Johnstown Industrial Park, and one other use which was
denied and has relocated to a new site. Mr. Kenney stated he had a study conducted on the
internal loop road,which indicated the dust levels are twice the legal limit within 200 feet of the site.
He stated the truckers do not turn off their engines during hot or cold weather, and he expressed
concern regarding health standards since there are no restroom facilities for the truck drivers.
Mr. Kenney stated he did hire a realtor, who provided a market analysis indicating his property is
worth$675,000.00 if the use remains, or$760,000.00 if the use is eliminated. He stated the traffic
study conducted by the Department of Public Works estimates between 500 and 591 vehicle trips
per day, which equates to 30 trucks per day, and he feels it will be difficult for staff to monitor the
number of trucks. He stated there are numerous other places for trucks to get water, as evidenced
by continued operations while the subject site was closed during the interim of this process.
Mr. Kenney stated the Planning Commission members commented that the owner of the facility
does not live on, or adjacent to, the site, and the use is not appropriate for the area. In response
to Chair Jerke, Mr. Kenney stated the signage on County Road 3 did eliminate the trucks from
parking in front of his house; however, they just parked further down Road 3, and the only traffic
ticket ever given was to his friend who parked his horse trailer along the road while using his horse
arena. He stated County Road 3 is narrow, and parked trucks pose a traffic hazard.
Theodore Schrage, surrounding property owner, stated he owns 80 acres located approximately
one-half mile south of the site, west of County Road 3. Mr. Schrage stated in 1992, he sold the
three-acre parcel to Mr. Kenney who built his home and improvements. Then in 2001, he sold an
additional 29 acres for the development of the five-lot Garcia PUD, which has homes ranging in
value from $400,000.00 to $500,000.00, all within 500 to 800 feet of the proposed commercial
water tap. He stated there have been times when trucks were parked on both sides of County
Road 3 and the school bus could not get through. He also questioned why the applicant is using
domestic, treated water to frac and drill oil wells. He stated the site has had more than 30 trucks
per day, and it is unrealistic to expect it will be limited to only ten trucks. In response to
Commissioner Rademacher, Mr. Schrage stated the Garcia PUD is completed, and he lives about
1,000 feet to the south.
Kristin Schuett, surrounding property owner, stated she purchased her land in 2006, and she has
planted hay and started construction of her future home. She stated there is an underground
pipeline which connects the wellheads on her property to the site, and she questioned who is
responsible if the pipelines need to be repaired, removed, or replaced, because they are not
located within easements. She also expressed concern with the lack of weed control on the subject
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site, which has resulted in the spread of Canadian Thistle on her property. Ms. Schuett stated,
regardless of the outcome of this hearing, the applicant needs to be required to do weed control.
In response to Commissioner Rademacher, Ms. Schuett stated she did contact the applicant, who
did go out and cut the weeds; however, by that time it was too late to prevent the spread. Chair
Jerke provided Ms. Schuett with contact information for the County Weed Specialist. He stated
there is no requirement for removal of abandoned oil and gas lines, unless the owner of a particular
property has them removed. Mr. Gathman stated the tank batteries are allowed as a Use by Right,
and this application only addresses the use of the water tap.
Stan Elmquist, surrounding property owner, stated he lives directly north of the site, across State
Highway 60, in Larimer County. He stated he agrees with Mr. Kenney's comments, and added the
previous mitigation attempts have resulted in shifting the problem to a different location. He stated
there is nothing compelling the Board to approve the request, and it should be denied. In response
to Commissioner Rademacher, Mr. Elmquist stated CDOT typically requires new facilities to use
an indirect access, such as County Road 3, to eliminate the cumulative effect of granting multiple
accesses along a Highway system. Commissioner Rademacher stated the average daily traffic
count on State Highway 60 is predicted to be 1,900 vehicles by the year 2010. In response to
Commissioner Rademacher, Mr. Elmquist stated he worked on noise analysis when he worked with
CDOT, and it is his opinion that in this situation the area residents will experience disruptive spikes
of noise from truck traffic,with lulls in between. In response to Commissioner Garcia, Mr. Elmquist
stated he is not aware of any problems for area users accessing water from the ditch, and there
is a letter from the applicant which addresses the delivery of water.
Mary Pedilla, surrounding property owner, stated her residence is directly north of the proposed
access. She stated it has been wonderful not having the trucks in the area, the traffic flow has
been safer, and she has experienced a significant reduction in the amount of dust. Ms. Pedilla
stated she is not opposed to the use; however, she is opposed to the location. There being no
further comments, Chair Jerke closed public testimony.
Richard Olona, Attorney, represented the applicant and stated the applicant is aware of the
concerns of the surrounding property owners. He stated Mr. Kenney's concerns will be addressed
by the new access from State Highway 60 and staging trucks within the site. He further stated
Mr. Kenney's comments were based on a time when the site was more productive; however, the
current proposal would limit the site to ten trucks per day, which averages to one truck per hour.
Mr. Olona stated Mr. Kenney has brought a lawsuit against Magpie Operating and the land owner;
however, that action is pending the outcome of this hearing. He stated the trucks do take
approximately 20 minutes to fill, which equals 72 trucks in a full 24-hour period, contrary to
Mr. Kenney's testimony of more than 300 vehicles per day. He stated the new access will allow
the ingress and egress of trucks without entering the lane of oncoming traffic,and the proposal also
limits the amount of light and sound,while preserving the remaining 110 acres for agricultural use.
Mr. Olona stated a Dust Study was done in conjunction with the lawsuit; however,the findings were
based on 200 trucks per day and are not relevant. He stated the market value for Mr. Kenney's
home was also reviewed and was found to be unsupportable and unprofessional. He stated there
are four active wells on the subject property,which has undergone various ownership transfers and
is currently owned by Magpie Operating. He further stated there is a vast need for the proposed
use for oil and gas operations in the area. In response to Commissioner Rademacher, Mr. Olona
stated there is no other water facility in the area. Mr. Warner added the nearest tap is operated
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by the City of Loveland, approximately five miles north, and he confirmed that they have not been
using the site during this review process.
Lauren Light, Department of Public Health and Environment,stated a Development Standard could
be added to require that diesel engines be shut off if engines idle more than five minutes, as well
as adding a Condition of Approval which requires posting a sign with the proposed language, and
the board concurred. In response to Chair Jerke, and at the request of the attending Clerk,
Ms. Light proposed adding the language as Development Standard #34. Commissioner Masden
and Chair Jerke concurred with allowing 70 decibels for Light Industrial, to be more realistic with
the proposed use in relation to the surrounding uses. Ms. Smith suggested amending
Development Standard #16 to replace "Residential" with "Light Industrial." In response to Chair
Jerke, Mr. Warner stated he and the applicant have reviewed, and concur with, the Conditions of
Approval and Development Standards, as proposed as modified.
Commissioner Rademacher stated Weld County supports the oil and gas industry; however,he has
serious issues with this application. He stated the applicant has done some mitigation for noise
and dust; however, the use is not compatible with existing uses in the area, and it would be difficult
to enforce noise, idling,and the number of trucks accessing the site,therefore, he does not support
the proposal.
Commissioner Masden stated he does not support this request because it would result in spot
zoning within a residential area, it does not protect the health, safety, or welfare of the
neighborhood, and it creates a safety hazard on State Highway 60.
Commissioner Garcia stated his major concern deals with the access on State Highway 60, and
the testimony from the Department of Public Works indicating the requirement of an
acceleration/deceleration lane if the access were located on County Road 3. He stated the
applicant has not adequately addressed his concerns or shown mitigation or compatibility with the
surrounding uses, therefore, he does not support the request.
Commissioner Long concurred with the previous comments, and stated it is not compatible with
present or future uses. He stated the area has been designated for residential use, there are
health and safety concerns, and the applicant's attempt to minimize the impacts does not
adequately address the issue of incompatibility.
Chair Jerke stated there are major compatibility problems with the proposed use. He stated the
applicant made promises for limiting the number of trucks and placing landscaping; however, he
does not feel those are realistic requirements, nor is it possible for staff to monitor. He stated
although the use is needed, the subject site is not a suitable location.
Commissioner Long moved to deny the request of James Warner, c/o Ryan Warner, for a Site
Specific Development Plan and Use by Special Review Permit#1617 for an Oil and Gas Support
Facility(commercial water tap used by oil and gas specific equipment and transportation vehicles
to service off-site oil and gas operations) in the A (Agricultural) Zone District, based on the
recommendation of the Planning Commission as entered into the record, as well as the findings
as described above. The motion was seconded by Commissioner Rademacher, and it carried
unanimously.
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This Certification was approved on the 11th day of February 2008.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
n1
ATTEST: / !, acv E « �
H. Jerke, Chair
Weld County Clerk to the Boardiso t n
f ert p. s n, Pro-Tem
e
BY: t, S7�
Depu Clerk to the Boar ?
_, Williar �a is r,
David E. Long
ouglas demacher
2008-0234
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EXHIBIT INVENTORY CONTROL SHEET
Case USR#1617 - JAMES WARNER, CIO RYAN WARNER
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 07/17/2007)
D. Clerk to the Board Notice of Hearing (Filed under Legals)
E. Applicant Letter requesting BOCC hearing, received
09/13/2007
F. Planning Staff Easement and License Agreement with
Pease Oil and Gas Company, dated
06/10/1994
G. Planning Staff Utility Bills, received 07/19/2007
H. Applicant Letter requesting continuance, dated
10/10/2007
Health Staff Memo re: Air Pollutants and Nuisance
Noise from Diesel Engines, dated 10/10/07
J. Clerk to the Board Updated Courtesy Notice for SPO's, dated
January 21, 2008 (Filed under Legals)
K. Mike and Kristen Schuett E-mail of Inquiry, dated 01/27/2008
L. Brenda and James Skeen Letter of Concern, dated 02/06/2008
M. Brad and Dina Baird and Family Letter of Opposition, dated 02/06/2008
N. Adjacent Landowner Aerial Photograph
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