HomeMy WebLinkAbout20082395.tiff HEARING CERTIFICATION
DOCKET NO. 2008-42.A
RE: SITE SPECIFIC DEVELOPMENT PLAN AND PLANNED UNIT DEVELOPMENT FINAL
PLAN, PF #1043, FOR SEVEN (7) LOTS WITH E (ESTATE) ZONE USES AND ONE (1)
LOT WITH A (AGRICULTURAL) ZONE USES, LAWLEY ESTATES - SHERRY LAWLEY
A public hearing was conducted on August 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, Jennifer VanEgdom
County Attorney, Bruce Barker
Planning Department representative, Brad Mueller
Health Department representative, Lauren Light
Public Works representative, David Bauer
The following business was transacted:
I hereby certify that pursuant to a notice dated July 11, 2008, and duly published July 18, 2008, in
the Greeley Tribune, a public hearing was conducted to consider the request of Sherry Lawley for
a Site Specific Development Plan and Planned Unit Development Final Plan, PF#1043, for seven
(7)lots with E(Estate)Zone uses and one (1) lot with A(Agricultural)Zone uses- Lawley Estates.
Bruce Barker, County Attorney, made this a matter of record. Brad Mueller, Department of
Planning Services, presented a brief summary of the proposal and entered the favorable
recommendation of the Planning Commission into the record as written. He gave a brief history
of the application process, indicating the Change of Zone was approved in March, 2005, at which
time it was determined that the Final Plan application could be reviewed administratively by
Planning staff; however, since three of the Conditions of Approval have not been met, it is
necessary to bring the matter before the Board for consideration. He explained staff has been in
ongoing dialog with the applicant for the past couple years, and in May, 2008, the applicant
requested withdrawal of the application; however, after further discussion the applicant decided to
move forward with the application, therefore, it was reinstated on July 14, 2008. Mr. Mueller
indicated staff recommends approval of the application, subject to the applicant being able to
complete all of the Conditions of Approval listed within the draft Resolution. He indicated the
applicant has satisfied, or is in the process of satisfying, a majority of the Conditions; however,
there are four Conditions which may need to be revised or deleted. He stated Condition of
Approval #1.A requires that the applicant enter into a ditch agreement with the Nazarenus Lateral
Ditch Company; however, no agreement has been reached, and after hearing testimony from the
applicant, the Board may consider deleting the Condition, or, revising the Condition. He clarified
staff does not have a recommendation regarding this Condition, as it is recognized that the
applicant and the ditch company have two differing opinions. He stated the Condition contains four
items of disagreement, including the ditch company's request for a performance bond and liability
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insurance, placement of fencing between the ditch and Lot 4, including the installation of two cattle
guards, and the general access by the lot owner into the ditch easement area. He clarified Lot 4
is the large northernmost lot, and lies on both sides of the ditch, while the eastern boundary of
Lots 1, 2, and 3 is bordered by the ditch right-of-way. He further clarified Lots 1, 2, 3, 5, 6, 7, and 8
are clustered around the interior road, and the applicant concurs with providing fencing along the
eastern boundary of Lots 1, 2, and 3; however, the applicant is in disagreement with the ditch
company's request to fence both sides of the ditch right-of-way within Lot 4.
Mr. Mueller indicated the necessary on-site improvements required through Condition of
Approval #1.B have commenced; however, the applicant disagrees regarding the requirement of
paving improvements along County Road 55. He indicated County Road 72 forms the southern
border of the cluster development, and the applicant is required to provide dust abatement
measures along the road. He stated staff recommends modification of the reference of a
"retention" pond to become a "detention" pond within Condition of Approval #1.C.1, and
recommends deletion of Condition of Approval #1.J, requiring the applicant to deed the mineral
rights to the Homeowners' Association (HOA). He clarified the landowner does own the mineral
rights, and previously questioned the rational for the requirement; however, upon researching the
matter, no requirement was located within the Weld County Code which would require the applicant
to deed the mineral rights to the HOA.
In response to Chair Jerke, Mr. Mueller clarified Condition of Approval#1.J was originally a part of
the language within the Change of Zone Resolution, and the Condition most likely had good
practical consideration; however, it should not be required within this Resolution since it is not listed
within the Code. Responding to Commissioner Garcia, Mr. Mueller clarified County Road 55 is
located to the east of the proposed development, and County Road 72 is adjacent to the south,and
he confirmed neither road is currently paved. In response to Commissioner Masden, Mr. Mueller
indicated the lower seven lots are between three and four acres each, and the large Lot 4 is
80 acres in size. He further indicated when an applicant proposes certain design elements, it is
standard practice to include the proposed improvements within the Improvements Agreement in
order to ensure all of the improvements are completed adequately. He clarified formal landscaping
is no longer being proposed for this development. Commissioner Masden expressed his concerns
regarding Condition of Approval#1.J, and confirmed mineral rights should be treated like personal
property, and the applicant should not have to deed the rights to the HOA. Mr. Mueller confirmed
staff came to the same conclusion, therefore, staff is recommending that the Condition be deleted.
Lauren Light, Department of Public Health and Environment, stated the site is served with water
from the North Weld County Water District; however, a finalized Water Service Agreement from
the applicant is still required. She indicated the lots will be served by septic systems, which will
meet the minimum requirements, therefore,the Department has no outstanding concerns with the
application.
David Bauer, Department of Public Works, displayed a map of surrounding roads within the area,
and confirmed the application was filed before he commenced his employment with Weld County;
therefore, he has researched the matter,and created a timeline in order to assist his understanding
of the series of events. He stated the original sketch plan was submitted in June, 2003, including
a drainage detention pond, which was required at the time since it was prior to the County's
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adoption of the new drainage criteria in 2006. He indicated the Change of Zone application was
submitted in September, 2004, and a traffic study was not required at that time. He stated it was
determined that the traffic from the site would utilize non-paved roads to access paved roads,
including utilizing County Road 72, east to County Road 55, and then north or south on County
Road 55. He stated at the Change of Zone submittal, the Department indicated dust control
measures were necessary on both County Road 72 and 55, and the dust control costs were
calculated based upon the proportional share of the projected traffic at that time. Mr. Bauer
indicated the Change of Zone was approved by the Board in March, 2005, at which time a
Condition required finalization of an Off-site Improvements Agreement,including provisions for dust
control and the eventual paving of County Road 55, as well as the requirement for an agreement
with the ditch company. He clarified the Final Plan application was submitted in June, 2006, at
which time the ditch company did not provide approval of the proposed construction plans. He
stated the applicant began working with a new engineer in March, 2007, and revised construction
plans were submitted in May, 2007. He indicated the applicant disagreed with the dust control
requirements,therefore,a traffic engineer was hired in August,2007 by the applicant,who provided
revised traffic impact assumptions, and the applicant has requested a waiver of the off-site
improvement requirements regarding the proportional share of paving County Road 55. He
clarified the Department requests the applicant provide the proportional share of off-site dust
control until the time that County Road 55 is paved. He indicated the road is currently treated with
magnesium chloride and may be a candidate for a recycled asphalt program in the future, which
would eventually be overlaid with full pavement. He further indicated the Department concurs with
the proposed drainage design, and confirmed the access is well designed, therefore, the
outstanding issue is in regards to the finalization of the Off-site Improvements Agreement.
In response to Commissioner Masden, Mr. Bauer clarified the Average Daily Traffic (ADT) count
for County Road 74, east of County Road 55, is 436 vehicles, the ADT for County Road 72 is
73 vehicles, the ADT for County Road 70 is 66 vehicles, and the ADT on County Road 55 is
101 vehicles, therefore, County Road 55 is only a candidate for dust control measures at this time.
Responding to Chair Jerke, Mr. Bauer indicated County Road 55 receives deep stabilization due
to the dairy traffic which utilizes the road, and currently the water company is trenching the road
for the installation of a new waterline. Further responding to Commissioner Masden, Mr. Bauer
stated the development is expected to create approximately 76 vehicle trips per day. In response
to Commissioner Rademacher, Mr. Bauer indicated the applicant will be required to provide a
proportional share of dust abatement along County Road 55, and will be solely responsible for the
dust control on County Road 72, in front of the development; however, County Road 72 does not
extend for more than one half mile west of County Road 55. Further responding to Commissioner
Rademacher, Mr. Bauer clarified the sizes of the lots average over five acres in size, due to the
size of the large outlot, therefore, no detention will be required. In response to Chair Jerke,
Mr. Bauer stated the applicant's share of dust stabilization for County Road 72, which is 700 feet
of road, will be $10,224.00, and the proportional paving cost for County Road 55 is $103,500.00,
which is calculated at eighteen percent of the overall paving costs. He corrected the ADT for
County Road 55 which he presented earlier, and indicated the most recent ADT is actually
328 vehicles. Further responding to Chair Jerke, Mr. Bauer clarified the applicant's share for
paving costs, in the amount of $103,500.00, is 18 percent of the overall paving costs, and the
Improvements Agreement will indicate that the County must commence the paving operations for
County Road 55 within ten years, or the funds will be refunded to the applicant. In response to
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Commissioner Masden, Mr. Bauer indicated the applicant's share of the deep stabilization on
County Road 55 is$15,758.00, which is a one-time cost, and he confirmed the overall stabilization
costs are approximately $188,000.00.
Mark Lawley,applicant, indicated a brief history of the project will summarize the issues which need
to be discussed and determined by the Board, and may answer many of the questions the
Commissioners may have. Sherry Lawley, applicant, read her letter into the record, marked
Exhibit D,summarizing, in detail,a history of the application process; issues with, and the demands
of, the Nazarenus Lateral Ditch Company, including the ditch company's belief that her use of the
property contained within the easements is prohibited; inconsistencies regarding the cost of
improvements discussed with the Department of Public Works; and the good faith attempt she has
made to resolve the outstanding issues. She requested the Board withdraw the requirements to
obtain an agreement with the ditch company and to deed the mineral rights to the HOA, grant a
variance to allow a sign in Outlot C, and waive the requirement of proportional paving costs of
County Road 55. She indicated she has entered into cooperative agreements with neighboring
farmers in order to create productive irrigated farm ground within Lot 4, to preserve agriculture and
provide responsible development, and she requested approval of the Final Plan application.
In response to Chair Jerke, Ms. Lawley confirmed Drew Scheltinga, a former employee with the
Department of Public Works, indicated in a letter dated July 24, 2006, that the proportional paving
costs would total$49,000.00, and would be held for a period of five years, meaning it would not be
required to be paid out until the road was actually paved. Ms. Lawley indicated the placement of
her residence on the map provided,which is directly north of Lot 4, and she desires to preserve the
land surrounding her residence, therefore, the land is currently under pivot irrigation and is being
farmed by Mr. Erickson through a seven-year agreement. Further responding to Chair Jerke,
Mr. Lawley indicated an agreement was entered into with another farmer to lease the water rights
to the irrigated property out of the Eaton Ditch. In response to Commissioner Rademacher,
Mr. Lawley indicated an access exists on County Road 72, as well as on County Road 55, and an
existing bridge must be crossed in order to gain access to the eastern portion of Lot 4. He clarified
the ditch company installed the bridge, and a cost share was provided when the property was
purchased approximately five years ago. Responding to Commissioner Rademacher, Mr. Barker
indicated a property owner is not typically prohibited from utilizing the land within an easement for
access purposes, and the property owner has a right to cross the easement, as long as the
easement is not damaged. He indicated the Board will need to hear from the ditch company's
representative regarding the right to restrict access to the easement since this property has a
slightly different situation. In response to Commissioner Masden, Mr. Barker reiterated he cannot
evaluate the rights of the property owner regarding the use of the easement as pasture land until
the language within the Right-of-Way and Easement Agreement is presented by the ditch
company's representative. Responding to Commissioner Rademacher, Mr. Lawley confirmed a
five-strand barbed wire fence will be constructed along the boundaries of the cluster development,
and indicated the easement was created within Lot 4 at the request of the ditch company. In
response to Commissioner Garcia, Mr. Lawley indicated an agreement has been made with the
Department of Public Works regarding the drainage on the site, including the detention pond, and
a copy of the Right-of-Way and Easement Agreement is included as pages 28 and 29 within
Exhibit D. He indicated no other rights are granted to either party except for what is outlined within
the agreement.
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Melvin Dinner, Attorney, represented the Nazarenus Lateral Ditch Company, and indicated the
company has been incorporated for over 92 years. He provided an introduction of various
members of the ditch company, including President Tommy Orr, Secretary/Treasurer Curtis Foss,
and Board Member Dennis Egge, and indicated other shareholders of the company are also
present. He also introduced Engineer Don Dunker, who has been a representative of the ditch
company for many years, and has worked in conjunction with other various engineering firms
providing the construction drawings. He provided a copy of the Warranty Deed and the
Right-of-Way and Easement Agreement for the record, marked Exhibits E and F, respectively.
Mr. Dunker indicated he represents the Nazarenus Lateral Ditch Company, and he is an employee
of the Department of Public Works as well. In response to Chair Jerke, Mr. Barker indicated the
outside employment of Weld County employees must be approved by the employee's supervisor,
as stated within the Weld County Code, and he advised Mr. Dunker that acting as a ditch company
representative while also being a representative of the Department was not in the best interests
of the County. He stated Mr. Dunker explained that he was employed by the ditch company prior
to his employment with Weld County, and he has continued his work with the ditch company and
is appearing before the Board today as a representative of the company. He confirmed Mr. Dunker
has not been privy to the details of the matter as an employee within the Department of Public
Works, therefore, a conflict of interest does not exist. Further responding to Chair Jerke,
Mr. Dunker confirmed he has obtained permission to act as a representative of the ditch company
from the Director of Public Works, and he will submit a copy of the written permission for the
record. (Clerk's Note:Following the hearing, Mr. Dunker provided a copy of the referenced written
permission, which was added to the record as Exhibit G.) At the request of Mr. Dinner, Mr. Bauer
confirmed Mr. Dunker was previously an employee with the City of Greeley, and began
representing the ditch company prior to his employment with Weld County. He confirmed
Mr. Dunker indicated within the interview process that he retained outside consulting duties, and
has recused himself from this case, and has never been granted access to review the file, except
through a formal request as a consultant to make copies of several documents. He further
confirmed Mr. Dunker has obtained the permission of the Director of the Department of Public
Works to continue the consulting work for this instance. Chair Jerke indicated he wanted to provide
full disclosure to all parties involved within the case, and it does not appear that a conflict of interest
exists.
Mr. Dunker stated the ditch company is requesting to revise a note on Sheet One of the
construction drawings, and is requesting the applicant provide 48 hours of notice when needing to
access the ditch or easement areas for construction purposes, in order to determine the impact to
the ditch. He indicated the agreement currently states that a three-foot clearance shall be provided
for any improvements which cross under the ditch; however, after the drawings were submitted,
it was determined that only 2.64 feet of clearance exists,therefore,the company has conceded the
proposed design is acceptable. He further indicated the applicant desires to eliminate Note 22,
which the company concurs, as well as the signature blocks; however, the ditch company would
like the signature blocks on the construction drawings to remain. In response to Commissioner
Masden, Mr. Mueller stated Mr. Dunker is making references to the construction drawings, which
are a Condition of Approval regarding recording the plat, and the drawings have been reviewed in
conjunction with the submitted plat. He indicated a full set of construction drawings have not been
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included within the file. Mr. Dunker indicated a signature block is placed on the drawings so that
the ditch company can acknowledge the construction plans have been reviewed, and the ditch
company would like the signature blocks to remain even though the applicant has requested the
blocks be removed from the plans. In response to Commissioner Rademacher, Mr. Dunker
confirmed the Board President of the ditch company will sign within the signature blocks. Chair
Jerke indicated he is not interested in providing micromanagement of this issue. Mr. Dunker stated
the ditch company has requested that a concrete cutoff wall be installed along the edge of the
pond; however, the applicant is requesting that the wall not be required since it is excessive to the
County requirements. He clarified the concrete wall is necessary to keep erosive soils in tact, and
the wall is included as a part of the drainage plans. He clarified if the wall is unacceptable, the ditch
company is requesting the placement of a monument at each end, in order to ensure the berm will
remain intact and will not cause a disruption. Mr. Dunker indicated the ditch company requests that
the barbed wire fence to be constructed remain in perpetuity; however, the language should most
likely state the fence shall remain as long as the easement is in place. He stated the ditch
company has agreed to allow the other items listed by the applicant to be removed, including a
grouted riprap rundown at the spillway. In response to Commissioner Masden, Mr. Dunker
indicated the land is currently pasture land; however, the ditch company would like to retain the
current elevation levels and maintenance operations are likely to reduce the elevation. Responding
to Commissioner Rademacher, Mr. Dunker confirmed the fence will be constructed along Lot 4 to
the north, and there will be no change to the land use within Lot 4, except where a crossing will
take place underneath the ditch. Responding to Commissioner Long, Mr. Dunker indicated the
items specified are items of contention within the ditch agreement required through Condition of
Approval #1.A.
Mr. Dinner provided a history of the ditch company, indicating the company is operated by twelve
shareholders, managing sixteen shares of water, therefore, it is considered to be a small mutual
ditch company. He stated the irrigation water is received through Eaton Ditch sources from the
Windsor Reservoir and Canal Company and the Cache la Poudre River. He indicated the property
currently owned by Ms. Lawley was previously owned by the ditch company, and 120 acres were
sold to Ms. Lawley in July, 2002, at which time the Right-of-Way and Easement Agreement was
finalized. He stated it is important to understand the significance of the agreement, as it is not a
typical easement agreement. He read portions of the agreement into the record, indicating the
right-of-way and easement are exclusive and perpetual,and the property owner may not cross over
or under the described exclusive right-of-way and easement without obtaining written permission
from the ditch company. He clarified the ditch company owned the property for a long time before
the property was sold to Ms. Lawley, and the establishment of the agreement was necessary to
protect the rights of the shareholders and the water rights flowing through the ditch. He confirmed
the property was not irrigated, nor was it being utilized for farming purposes at the time of the sale,
and the applicant did not become a shareholder of the ditch company upon sale of the property.
He clarified the ditch contains approximately 11.6 acres and travels the length of the applicant's
property, and the property to the east of the ditch was sold by the applicant, therefore, there is no
valid reason to cross the ditch. He indicated a bridge was constructed, which is a concrete slab,
20 feet in width, and the ditch company has requested that railings and cattle guards be
constructed on the bridge. He further clarified the right-of-way is 120 feet on the west side of the
ditch, and 50 feet on the east side, and a road for the ditch rider is included within the provided
right-of-way. Mr. Dinner indicated the placement of the detention pond, and the applicant has
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requested to release water from the pond into the ditch; however, the ditch company does not
agree,due to the potential for overflow. He indicated the applicant has been trying to gain approval
for this project for several years, and recently requested to vacate the project in May, 2008;
however, it was requested that the application be reinstated a month later. He stated the deed and
agreement were finalized in 2002,the PUD development project began in 2003 with the sketch plan
submittal, and the approval of the Change of Zone application, in 2005, required the applicant to
enter into an agreement with the ditch company as a Condition of Approval. Mr. Dinner clarified
he has only acted as a representative of the ditch company since 2004, therefore, he was not
involved with the drafting of the easement agreement. He indicated the officers of the ditch
company have been working in good faith to come to an agreement with the applicant.
Chair Jerke issued a recess of the matter until 1:30 p.m., in order for Board members to attend a
previously scheduled lunch meeting.
Upon reconvening, Chair Jerke instructed Mr. Dinner to continue with his previous presentation.
Mr. Dinner referred to Exhibit F, and he discussed the diagram of the ditch structure presented
within Exhibit C of the document, indicated the total amount of right-of-way is 170 feet, and he
reiterated the applicant does not own the fenced property to the east of the ditch adjacent to the
cluster development. He clarified the ditch company constructed the ditch structure with concrete,
due to the erodible soils, and indicated the ditch is one mile in length, approximately six feet in
width, and three feet in depth. He clarified the property was purchased by Sherry Lawley; however,
Mark Lawley, who is a member of the Planning Commission, entered into the Right-of-Way and
Easement Agreement in conjunction with Ms. Lawley, therefore, he is not sure whether a conflict
of interest exists. Mr. Dinner indicated the ditch irrigates approximately 100 acres lying north of the
ditch easement, and an additional 500 acres to the south of the ditch easement. He reiterated a
brief description of the layout of the seven estate lots and the one agricultural lot requested within
the PUD, and indicated the ditch company has been working for over four years to come to an
agreement with the applicant. He clarified a five-strand barbed wire fence has already been
erected by the ditch company along the eastern easement boundary of the ditch adjacent to the
clustered lots, and the applicant has indicated a similar fence will be erected along the western
easement boundary of the ditch. He confirmed there is no fence on either side of the easement
boundaries of the ditch within Lot 4, the applicant has previously utilized Lot 4 as pasture ground
for livestock, and a bridge exists, which is 20 feet in width, and provides access for the applicant
to enter the property on the east side of the ditch; however, there are no gates on the bridge. He
indicated when the applicants entered into the agreement, they recognized the agreement was an
exclusive right-of-way and easement agreement. He stated the ditch company has proposed the
installation of a five-strand barbed wire fence on each side of the easement within Lot 4, to keep
the animals out of the ditch, and he clarified the right-of-way area is not a recreational area, rather,
it is strictly a ditch easement. He indicated the Conditions of Approval require that an HOA be
organized and it is possible that the applicant may sell out the project before any of the lots are
developed,therefore, it is important to allow the ditch company to construct the fence on both sides
of the ditch; however, the applicant is objecting to the placement of the fence. He further indicated
the ditch company has requested that cattle guards be placed so that the ditch rider can utilize the
full length of the access. He reiterated the applicant objects to the ditch company installing the
fence and cattle guards within the easement area, at the sole expense of the ditch company. He
confirmed the applicant does not have the right to determine what happens within the easement,
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since an exclusive agreement was entered into. Responding to Commissioner Garcia, Mr. Dinner
indicated the ditch company is presenting these issues before the Board today because one of the
Conditions of Approval indicates that the ditch company and the applicant must come to an
agreement; however, the two parties have been unable to come to full agreement. Further
responding to Commissioner Garcia, Mr. Dinner indicated it is the right of the ditch company to
construct the fence, due to the exclusive easement agreement; however, the applicant indicated
they own the surface of the property, therefore, the fence may not be constructed without
permission. In response to Chair Jerke, Commissioner Garcia explained the ditch company is
asserting that the easement agreement indicates the ditch company maintains exclusive control
of the 170 feet of right-of-way associated with the ditch, and due to the exclusive control, the
placement of the fence is at the discretion of the ditch company, not the applicant. Mr. Dinner
clarified the ditch company is asserting that it maintains exclusive control of the entire right-of-way
surrounding the ditch, except for the small portion of right-of-way reserved as road right-of-way,
which is called out within the legal description as non-exclusive. In response to Chair Jerke,
Mr. Barker indicated he concurs with the assertion of the ditch company and clarified the applicant
signed an agreement which indicated the ditch company has an exclusive right, therefore, the
applicant is excluded from utilizing any portion of the easement. He further clarified the
Right-of-Way and Easement Agreement is listed as a deed exclusion, which is a departure from
typical law dealing with ditch right-of-way normally indicating non-exclusive easements. He
indicated the property was previously owned by the ditch company, and the company is retaining
its right to control the area within the designated easement, therefore, the company does have the
right to construct a fence within the easement area. Further responding to Chair Jerke, Mr. Barker
confirmed the ditch company may construct a fence on both sides of the ditch in order to create
exclusivity for the owner of the easement. In response to Commissioner Rademacher, Mr. Dinner
indicated the ditch company previously requested that the applicant install the cattle guards;
however, the applicant has disagreed. Commissioner Rademacher indicated since the ditch
company is paying for the installation of the fence, it should be required to also pay for the
installation of cattle guards. Mr. Dinner indicated the ditch company will most likely pay for the
installation of the cattle guards. Commissioner Long indicated the ditch company has now asserted
on record that it intends to provide the costs associated with the construction of the fence and cattle
guards.
Mr. Dinner stated it has been made clear to the applicant that the ditch company will assume all
obligations and responsibilities regarding maintenance within the easement,including weed control,
etcetera; however, the applicant has previously asserted a right to perform the maintenance work.
He clarified the ditch company will complete all maintenance work at its own expense, and is not
requesting involvement or financial assistance from the applicant. In response to Chair Jerke,
Mr. Dinner clarified the company sold approximately 120 acres to the applicant, and retained
11.6 acres for easement purposes along the ditch, and at the time of the sale, the ditch company
believed the exclusive agreement would provide future protection of the ditch. He further clarified
in the future, the ditch company will not be dealing with the applicant, rather, all future issues will
be handled by the HOA, therefore, designating an exclusive easement provides for protection to
deal with matters now, including providing protection to the residents of the development by
constructing the proper fencing. Responding to Commissioner Masden, Mr. Dinner confirmed the
right-of-way acreage was included on the deed when the property was sold to the applicant;
however, the exclusive agreement was finalized at the same time, and was recorded with the deed
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in July, 2002. Further responding to Commissioner Masden, Mr. Mueller indicated the ditch
company could not keep the easement area as deeded ground, since separating the area would
have constituted as an illegal land split; however, the ditch company could have completed the
Recorded Exemption process to legally split the land. Mr. Dinner reiterated the ditch company was
not represented by an attorney during the sale of the property to the applicant; however, if he had
been representing the ditch company at that time, the documents would have been drafted
differently.
Mr. Dinner clarified due to the exclusive control of the easement area, the ditch company wants to
restrict access, and the applicant does not agree; therefore, in order to come to an agreement, the
ditch company suggested a performance bond be posted by the applicant, and held for three years,
for the construction regarding the pond. He stated the ditch company further requested that a
professional engineer be available during the construction, and that the ditch company be added
as an additional insured on the liability policy for the HOA. He clarified the only items of request
which will cost the applicant money are the performance bond and the cost of the engineer,
otherwise, the ditch company will be responsible for all other costs. He reiterated the two parties
have not been able to come to an agreement, and the applicant will not be allowed to record the
plat until an agreement is reached. He requested the Board not approve the application, or ensure
that the applicant come to agreement with the ditch company as a Condition of Approval. In
response to Commissioner Rademacher, Mr. Dinner indicated the applicant is able to cross the
20-foot bridge over the ditch in order to access the eastern portion of Lot 4, and there are no other
crossings proposed.
Mr. Foss commended the applicant for the desire to continue agricultural production by entering
into a farming agreement with Mr. Erickson. He indicated he is a member and shareholder of the
ditch company, and he explained the ditch company sold the property to the applicant in order to
obtain funds to be utilized for the construction of the cement ditch lining. He clarified the ditch
company thought the exclusive agreement would provide legal protection, and indicated 120 feet
of right-of-way on the west was determined to be necessary to eliminate the problems associated
with blowing sand due to overgrazing conditions on the property. He confirmed the ditch company
has been negotiating with the applicant for several years, and they have eliminated several issues
of contention; however, three or four outstanding items of contention within the agreement still
exist, including exclusive access,fencing, maintenance, and drainage plans. He clarified the ditch
company will not prohibit the applicant's ability to access the eastern portion of Lot 4, he confirmed
the existing bridge may be utilized, and he indicated the installation of the fencing is necessary for
the future development. He indicated if the ditch company had any indications that the applicant
was proposing a PUD development for the property,the company would not have sold the property.
In response to Commissioner Rademacher, Mr. Foss confirmed the ditch is lined with concrete the
entire length of the PUD development, from County Road 72 to County Road 74. Responding to
Chair Jerke, Mr. Foss indicated the property sold to the applicant has historically been utilized as
pasture, and had been planted in wheat at times in the past, which contributed to the blowing
problems. In response to Commissioner Masden, Mr. Foss indicated the requested concrete wall
to be installed by the applicant will mitigate future erosion problems during heavy rains and will
prevent eradication of the natural grasses. He indicated if the concrete wall is deemed to be cost
prohibitive by the applicant, the ditch company requests that corner posts be placed in order to
reference the correct level. Further responding to Chair Jerke, Mr. Foss reiterated the ditch
irrigates approximately 500 acres of land to the southeast of the development, and an additional
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100 acres north of the applicant's property. There being no further testimony, the Chair closed the
public input portion of the hearing.
Mr. Lawley indicated the ditch company desires to fence the entire easement, and he did not agree
with the fencing because it was his belief that he held rights to the easement, as the surface
property owner. He stated fencing the entire easement will not allow any access or any use of the
easement, and he understands that the agreement specifically states it is an exclusive agreement;
however, the property owner has a right to the surface area since the purchase was for the full
120 acres. He clarified he does not intend to build any improvements within the easement;
however, the cattle should be allowed to graze upon the easement within Lot 4 as long as it does
not interfere with development activities. He further clarified he believes the future property owners
within the cluster PUD should not have access to the easement, which is why he is willing to fence
along the eastern perimeter of the development lots. He indicated contrary to the testimony
presented by Mr. Dinner, he believes he has rights to access the easement, therefore, the two
parties remain at an impasse, and he realizes the issue may not be solved by the Board through
today's hearing. He further indicated the language provided within the easement agreement
protects the ditch company should damage occur, and he recognizes if he causes damage to the
bridge while crossing, he is responsible for the cost of repairs. He indicated the County has
required a surety bond for the completion of the required improvements, and he should not be
obligated to supply an additional bond to the ditch company since the company is well protected
by the agreement. Mr. Lawley indicated the request for a concrete wall is excessive, and he
requested he be allowed to provide a berm in accordance with the County Code, as agreed to by
the Department of Public Works. He reiterated he believes as the owner of the property, he has
the right to cut weeds and have general access to the easement area. In response to Chair Jerke,
Mr. Lawley confirmed he is a present member of the Weld County Planning Commission; however,
he was not a member at the time the application was presented before the Planning Commission.
Chair Jerke indicated he is satisfied that Mr. Lawley is appearing before the Board of
Commissioners as a co-applicant and citizen, since he was not a member of the Planning
Commission when the application was first presented.
Chair Jerke indicated a rural property owner oftentimes owns a parcel of property up to, and
including, the reserved right-of-way for the Section Line, which may also be a designated County
Road; however, the property owner typically does not have a right to utilize the portion of
right-of-way reserved for the road for their own benefit. Mr. Barker clarified in this instance, the
situation is different because the property was previously owned in total by the ditch company. He
explained the company sold off a portion of the property, and retained an easement with definitions
of the exclusions, and the applicant signed the agreement. He indicated he does not understand
why the applicant believes there are rights to access the easement, and he read a portion of the
easement agreement into the record, indicating access to the property is not allowed without prior
consent. He indicated due to the type of agreement, if the applicant believes they have a right to
access the easement, they will need to pursue their rights with a declaratory judgment action. He
expressed his concerns regarding the last page of the easement agreement, which depicts a
170-foot right-of-way until the easement meets the Section Line; however, the plat indicates a
right-of-way of 121.28 feet, which is not congruent with the agreement. He indicated the Board
may not approve a plat which is incorrect regarding the boundary line description, therefore, the
matter needs to be resolved today. In response to Chair Jerke, Mr. Barker stated the plat should
reference a right-of-way of 170 feet. Commissioner Rademacher indicated the right-of-way may
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be reduced by the overlapping road right-of-way. Mr. Barker indicated staff may need to research
the actual boundary lines between Lots A and B of Recorded Exemption(RE)#3581. In response
to Commissioner Rademacher, Mr. Barker indicated the right-of-way appears to reduce along the
eastern side.
Mr. Barker further indicated the County does not have to require the applicant to provide an
additional bond to the ditch company, since the agreement did not include provisions regarding a
bond. He stated if the need for a bond was important enough, it should have previously been
included as a requirement within the agreement, and the Board can not enforce the insurance
requirement. In response to Chair Jerke, Mr. Mueller indicated he believes the remainder of the
170 feet of right-of-way is reflected within Lot B of RE#3581,and one of the Conditions of Approval
indicates the recorded plat must be correct, therefore, the engineer which finalizes the plat must
certify the plat does indeed reflect the easement correctly. He indicated if there is an error, the plat
will be corrected. Responding to Commissioner Rademacher, Mr. Mueller indicated he believes
the right-of-way may be reduced due to the configuration of Lot A and the required 30 feet of
reserved right-of-way for County Road 55. In response to Commissioner Masden, Mr. Lawley
indicated some of the improvements required within Condition of Approval #1.6 were required by
referral agencies, including the location of the postal box and the pedestrian shelter. Further
responding to Commissioner Masden, Mr. Mueller clarified, since the time that the application was
originally submitted, the applicant has provided a Landscape Plan, indicating no common
landscaping will be provided, therefore, all references to landscaping and providing bids for the
landscaping may be deleted from the Resolution.
In response to Commissioner Garcia, Ms. Lawley indicated the installation of the concrete wall was
a request and demand by the ditch company, and the detention pond spillway was designed and
engineered by Mr. Dunker, as a representative of the ditch company. He indicated the submitted
plans were reviewed by the Department of Public Works, and her expected drainage costs have
now tripled,therefore, she was only trying to accommodate the requests in order to please the ditch
company so that an agreement could be finalized. She further clarified the development contains
eight lots totaling 114 acres, and the northernmost lot, Lot 4, is 80 acres in size. Responding to
Commissioner Rademacher, Mr. Bauer confirmed when the application was first submitted, in
2003, the Department requested a Drainage Plan and information regarding the access. He
indicated the Weld County Code, at the time of application, indicated detention is required at the
100-year flood level, which must be collected and released at the five-year historic rate, and the
applicant's engineer identified the location for the discharge. In response to Commissioner Garica,
Ms. Lawley indicated the smallest lot is Lot 1, at 2.93 acres in size. Mr. Lawley indicated the
engineer is present and may be able to provide information regarding what the County required for
detention, versus what the ditch company was additionally requesting. Responding to
Commissioner Rademacher, Mr. Lawley confirmed the western boundary of the ditch contains
120 feet of right-of-way, and the property to the west is currently established as dryland pasture
grass.
Chair Jerke indicated the Board is ready to discuss the requested modifications to the Resolution,
and indicated additional testimony may be sought from either party to provide additional
clarification. He cautioned the applicant that approval of the various modifications does not
necessarily constitute approval of the application in general. In response to Chair Jerke,
Mr. Mueller offered to provide a brief explanation of each of the Conditions of Approval which are
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contentious. Commissioner Masden indicated the ditch company's request for a performance bond
is out of the Board's authority, and Chair Jerke stated the applicant will be required to provide
approximately $300,000.00 for the required improvements; however, the subject of damage to
another neighbor or party will need to be dealt with through civil litigation. In response to Chair
Jerke, Mr. Mueller clarified the decision by the Board regarding Condition of Approval #1.A will be
whether to continue to require an agreement, and what key elements will be a part of the
agreement, or, if the Board decides that an agreement is not necessary, the key points of
contention within the agreement will be a mute point. Commissioner Long stated the Board has
been consistent within past cases of not providing veto power to an outside entity, and the Board
does not have the ability to force the applicant to agree with all of the stipulations of the ditch
company. He indicated he believes the applicant has tried to work on an agreement with the ditch
company in due diligence, therefore, the applicant has met the requirement of working towards an
agreement. In response to Commissioner Rademacher, Mr. Barker indicated the Board will not be
able to enforce the ditch company's request that the HOA name the ditch company as additional
insured within the liability insurance. Commissioner Garcia indicated it does not make sense for
a party which has no right of entry to provide insurance for the entity utilizing the easement area.
Commissioner Rademacher indicated the ditch company has the right to install the necessary
fencing; however, he believes the ditch company should be required to pay for all costs, including
the installation of the necessary cattle guards. Commissioner Long confirmed due to the exclusive
agreement, the Board may not order the applicant to provide any of the necessary expenses. In
response to Chair Jerke, Commissioner Long indicated if the applicant desires to challenge the
assertions of the ditch company, the matter will need to be considered within court proceedings.
Chair Jerke indicated it appears that the applicant does not have the ability to access the property
within the exclusive easement area. The Board concurred that no action was to be taken regarding
the four areas of disagreement within Condition of Approval#1.A, therefore, no modifications were
made to the Condition.
In response to Chair Jerke, Mr. Mueller clarified the Improvements Agreement referenced within
Condition of Approval #1.B does not include the requirement of a development sign, rather, the
language within the Condition indicates the plans submitted by the applicant must be completed
as submitted, which in this instance, includes a development sign proposed by the applicant. He
indicated the purpose of the agreement and collateral is so that the County has the funds available
to complete the required improvements should they not be finished. The Board concurred with the
removal of the words"development sign"from Condition of Approval #1.B. Further responding to
Chair Jerke, Commissioner Long indicated some developments provide a pedestrian shelter as a
development perk; however, it should not be required to be listed within the language at this time,
and the Board concurred with the removal of the words "pedestrian shelter" from Condition of
Approval#1.B. In response to Chair Jerke, Mr. Lawley indicated the installation of the postal boxes
was a requirement from the United States Postal Service. Chair Jerke indicated testimony was
previously provided that references to landscaping, and the bids for landscaping may be removed,
and the Board concurred with the deletion within Condition of Approval #1.B. In response to
Commissioner Rademacher, Mr. Mueller clarified the fencing language within the Condition refers
to any fencing to be placed on the site. He explained if the final construction drawings depict
certain improvements, the site will need to be constructed according to the plans, and the surety
posted by the applicant may be utilized to ensure all of the improvements are completed properly.
He confirmed the fencing proposed by the applicant is not intended to be utilized as screening.
Further responding to Commissioner Rademacher, Mr. Mueller clarified installation of a fence
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surrounding the development is not required, and staff is accepting the fencing plans as proposed
by the applicant, which is the installation of a five-stand barbed wire fence along the perimeter of
the cluster development.
Chair Jerke indicated he prefers to rely upon the written funding requirement previously provided
by Mr. Scheltinga, indicating the applicant is responsible for$49,000.00, and if County Road 55 is
not paved within ten years, the money will be returned to the applicant. Commissioner
Rademacher indicated he is unsure as to what the applicant is required to provide as a cost-share,
and he does not believe County Road 55 should be required to be paved for the entire length
between County Roads 72 and 74. Mr. Bauer clarified the Department has been in negotiations
with the applicant, and has come up with a variety of calculation formulas based the future direction
of traffic. He indicated the Department is requesting that the applicant provide a proportion of the
paving costs for County Road 55,between County Roads 72 and 74, in the amount of$103,000.00,
and to provide the funds at the time that the road is paved. He clarified the applicant shall provide,
as a portion of this total,a cost-share amount of$15,758.00 for dust control measures to be utilized
until the time the road is paved. He indicated it is presumed a majority of the traffic will head south
on County Road 55, to access State Highway 392; however, staff decided to determine the figures
based upon the shortest route to a paved road. Mr. Bauer stated the applicant will provide dust
stabilization for 700 feet from the entrance east to County Road 55. In response to Commissioner
Rademacher, Mr. Bauer confirmed staff typically requires the applicant to provide dust abatement
measures to the nearest paved road. Further responding to Commissioner Rademacher,
Mr. Lawley confirmed there is a dairy located adjacent to State Highway 392, which is south of the
proposed development. Chair Jerke reiterated the applicant should be required to provide the
proportional share of $49,000.00, as referenced by Mr. Scheltinga, rather than provide dust
suppression measures. He indicated the County is already providing deep stabilization, and he
understands that it is not fair to make the applicant pay a share up front since it may take many
years to sell the lots and build residences. Responding to Commissioner Rademacher, Mr. Bauer
confirmed County Road 55 is a candidate for the recycled asphalt program, and in the future, the
road may be traditionally paved as well; however, the recycled asphalt road is not considered to
be a paved road, and does not address other concerns, including shoulders, etcetera.
Commissioner Masden indicated he concurs with Chair Jerke regarding the commitment of
$49,000.00, which should be an adequate share once the road is eventually paved. In response
to Commissioner Rademacher, Chair Jerke clarified the applicant should provide a cost-share total
of $49,000.00 for paving operations, since the County is already providing the necessary deep
stabilization work on County Road 55. Responding to Commissioner Garcia, Chair Jerke clarified
if the Department has not paved the road within nine years, the completion of the road becomes
a priority so that the applicant's funds may be utilized. Mr. Barker indicated he does not remember
staff setting a specific price for improvements within past cases, and normally the Board requires
that an Improvements Agreement be submitted, with all the specifics to be included within the
agreement, therefore he is reluctant for the Board to set a specific cost-share price. Chair Jerke
indicated the applicant has been presented with multiple price figures and he would like the Board
to be able to give the applicant an element of predictability. Mr. Barker clarified if a specific
cost-share price is set, then the Board will need to set the specific time for which the payment is
due, and the specific work to be accomplished with the cost-share funds. Chair Jerke indicated
a letter of credit, or cash, may be provided by the applicant at the time the Improvements
Agreement is finalized. Mr. Bauer confirmed that within the past two years,as paving projects have
been nearing the expiration date for surety collected, the projects rise in priority to complete the
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paving work, and the collateral is posted at the time of the approval of the development, and held
for a specific time frame. Mr. Barker indicated the request of the Board is a departure from the
normal procedure, and in response, Chair Jerke indicated the Board is trying to help staff
pre-determine what an Improvements Agreement ought to include. He clarified Mr. Scheltinga
indicated, in writing, that the applicant should be required to provide a cost-share of$49,000.00,
and he is comfortable with the amount. Responding to Commissioner Rademacher, Chair Jerke
confirmed if County Road 55 is not paved by the County within the specific timeframe stated, the
collateral provided by the applicant will expire, and will not be utilized for the paving costs.
Commissioner Rademacher indicated dust abatement should not be required to be provided by the
applicant on County Road 72 until the traffic counts justify the need, since the current traffic count
is very minimal. In response to Commissioner Long, Mr. Bauer explained the applicant is providing
a proportional share of the cost of the deep stabilization program for County Road 55, which has
been done within the past. Responding to Chair Jerke, Mr. Bauer indicated the dust abatement
is provided for a specific time frame which is called out within the Improvements Agreement. In
response to Commissioner Rademacher, Mr. Bauer reiterated the applicant's portion for cost-share
for dust abatement on County Road 55 is a one-time cost of $15,758.00. Commissioner
Rademacher indicated he does not believe the applicant should be held responsible for the entire
length of three miles. Commissioner Long concurred with Commissioner Rademacher, and stated
the applicant should be responsible for only the area nearest to the development. Commissioner
Rademacher indicated staff should work to adjust the amount required by the applicant. In
response to Chair Jerke, Mr. Bauer confirmed if the road becomes a part of the recycled asphalt
program,the funds for dust suppression will be contributed to the new program,and in the absence
of the program, the County will continue to provide dust suppression. Chair Jerke clarified the
applicant shall provide $49,000.00 as a part of the cost-share agreement regarding the paving
costs, which shall be held for a decade, and provide funds, in the amount of$15,758.00, for dust
suppression, which may be pro-rated at a straight-line depreciation if the road is paved within ten
years. The Board concurred with Chair Jerke's recommendation, and directed staff to make the
appropriate changes.
Following further discussion, the Board concurred with the deletion of Condition of Approvals#1.J.
and #1.A, and the modification of Condition of Approval #1.C.1 to state "detention ponds" in the
place of"retention ponds."
Mr. Mueller indicated Mr. Dunker previously requested that the signature blocks be retained on the
construction drawings; however, on the plat there will be no signature line for the ditch company's
approval, since the Weld County Code specifically states who may sign a plat, which does not
include easement holders. In response to Mr. Mueller, Mr. Barker confirmed it is not appropriate
to allow the ditch company to sign the construction drawings and the Board concurred with
Mr. Barker. Mr. Mueller clarified the Department of Public works has approved the construction
drawings with the placement of a berm which is not concrete; however, the ditch company has
requested the placement of a concrete wall. Commissioner Garcia indicated he does not believe
a detention pond is necessary, therefore, a concrete barrier is not necessary. Mr. Mueller
explained the Drainage Plan has been submitted, which was reviewed by staff, and the plan
includes a detention pond, therefore, basic detention to control the historic flows on the site is
necessary. He indicated a neighbor previously expressed concern regarding drainage, and the
applicant has indicated there will not be excessive drainage from the site due to the implementation
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of the detention pond. He clarified the Department of Public Works has agreed to the design
element of the pond, which includes an earthen berm. Chair Jerke indicated due to the change in
land use for the property, it is possible for neighboring properties to experience damage from runoff
if a detention pond is not utilized. Commissioner Masden concurred that a detention pond is
necessary, the concrete is not necessary, and the provision of corner posts to monitor the level of
the water will be sufficient. In response to Chair Jerke, Mr. Mueller indicated the issues concerning
the drainage on the site are referenced within Condition of Approval#1.F, and a modification may
be made to the language to clarify the use of an earthen berm in conjunction with the monitoring
posts. Responding to Commissioner Rademacher, Mr. Mueller confirmed the requirement of a
detention is specified indirectly, as the detention pond is a part of the Drainage Plan.
Commissioner Rademacher concurred with Commissioner Garcia, and indicated a detention pond
is not necessary since a 120-foot buffer of established pasture exists between the applicant's
property and the actual ditch. In response to Commissioner Rademacher, Mr. Bauer confirmed
the drainage may not run into the ditch, and indicated the protection of the 120-foot buffer may not
be sufficient since the soils on the site are erosive. He stated the detention pond will reduce the
water flow during a large-event storm, through a pipe discharge under the ditch,which reduces the
risk to the ditch. He further stated the construction plans may be approved with the provision of
a berm and concrete posts, and he confirmed a concrete wall is not required. Responding to Chair
Jerke, Mr. Bauer confirmed the water on the site drains to the southeast corner of the site, and will
flow into the borrow pit along County Road 72. Following further discussion, the Board concurred
with staff's recommendations regarding drainage on the site, and indicated a concrete wall will not
be required. Mr. Bauer confirmed staff will work with the posts to correctly establish the elevation
for the detention pond spillway, and all improvements will be constructed within the applicant's
property, not within the road right-of-way. Mr. Mueller indicated the ditch company is requesting
a modification to the language within the note on page 5 of the Construction Drawings, to indicate
the fencing along the ditch will exist as long as the easement agreement is in effect, instead of in
perpetuity.
Chair Jerke issued a short recess.
Upon reconvening, Mr. Mueller indicated the current note on the Construction Drawings indicates
the fence shall remain in perpetuity; however, the ditch company has agreed to change the note
to state the fence shall remain as long as the easement agreement is in effect, or, the note may
be removed altogether. Commissioner Garcia concurred with removing the note since the fence
is in place at the desire of the ditch company. In response to Commissioner Rademacher,
Mr. Mueller indicated the applicant is not required to provide fencing surrounding the PUD;
however, the applicant has proposed to provide the fencing, which is depicted on the Construction
Drawings. Ms. Lawley clarified the proposed fencing was designed by the ditch company, and
indicated on the drawings as a part of the agreement request. Commissioner Rademacher
indicated the Construction Drawings should be modified to remove all references to requirements
for fencing, and the Board concurred.
Ms. Lawley indicated the ditch company is asserting that she has no right to utilize the property
contained within the easement agreement, and the requirement to have the drainage flow under
the ditch will be futile since the company will not allow the drainage to flow under the ditch. In
response to Commissioner Rademacher, Mr. Barker clarified if the drainage runs into the borrow
ditch, the flows will most likely end up in the County's ditch. Commissioner Rademacher indicated
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he does not want the project to be stalled because the ditch company will not provide permission
to allow the water to flow over or under the ditch. Chair Jerke requested Mr. Foss to provide
testimony regarding the stormwater drainage flows. Mr. Foss indicated the ditch company has
agreed to allow the applicant to cross under the ditch, at a depth of 2.6 feet, since a depth of three
feet could not be accomplished. He indicated the water from the applicant's property currently
drains to the south, then to the east, and currently flows over the top of the ditch. Further
responding to Chair Jerke, Mr. Foss indicated it is his belief that the utilization of a detention pond
has been required by the County since the very beginning of the project, and the ditch company
has only been involved within the discussions regarding the discharge of the pond. He confirmed
the water flowing into the borrow pit will pass through the intersection and drain into the neighbor's
property,which has been the historical flow; however, the addition of the residences will impact the
historic flow. Commissioner Long indicated the detention pond mitigates the problem by
discharging the flows at a historic rate. Commissioner Rademacher clarified the runoff may be able
to be controlled by a berm or a grassy area; however, he is not sure if the road intersection
contains the proper culverts for natural drainage. Mr. Bauer indicated the historical drainage is a
sheet flow until hitting a structure, such as the irrigation ditch, and in this case,the flows travel east
and if the detention pond releases at a low historic rate, the flows will be non-erosive to the
County's culverts and the Nazarenus Lateral Ditch. Further responding to Commissioner
Rademacher, Mr. Bauer indicated it has not been determined whether the current runoff from the
applicant's property affects surrounding property owners; however, Mr. Foss confirmed the runoff
has created problems for the surrounding property owners within the past. Mr. Lawley indicated
there is a culvert installed under County Road 55,which carries runoff to the east for approximately
100 to 200 yards. He further clarified the runoff does not flow into the ditch due to the berm
installed by the ditch company. Following further discussion among the Board, Mr. Mueller
proposed Condition of Approval #1.F be modified to state that the Drainage Report indicate a
design which does not pipe the runoff under the road, but rather that the runoff is allowed to run
into the borrow ditch. Mr. Foss clarified the irrigation culvert is located on the south side of County
Road 72, and flows from east to west.
Jimmie Wolfrum, ditch rider for the Nazarenus Lateral Ditch, stated the culvert runs underneath
County Road 72, on the west side of County Road 55, and south of the intersection, there is
another culvert with a pipeline carrying water to the east; however, none of the culverts are
drainage culverts. In response to Commissioner Rademacher, Mr. Wolfrum indicated the culverts
cross the County right-of-way, are owned by the County, and are steel culverts with plastic pipeline
ran through. Responding to Chair Jerke, Mr. Wolfrum indicated a large rain storm will add runoff
water to the ditch. In response to Commissioner Masden, Mr. Wolfrum confirmed the ditch
company utilizes the culverts as a conduit, and there is virtually no borrow pit which carries rain
water. Commissioner Rademacher indicated the applicant will be utilizing the road right-of-way for
irrigation and Chair Jerke clarified if storm runoff is detained, the release level will still provide a
normal flow. Responding to Chair Jerke, Mr. Mueller indicated Ms. Lawley's concerns that the
drainage for the detention pond, requiring a pipe underneath the ditch, have been addressed by
the ditch company indicating a pipe will be allowed; however, she prefers for the Board to instruct
the Department of Public Works to approve a design which allows the detention pond to drain to
a borrow pit or another alternative. Mr. Bauer clarified he is not sure that releasing the runoff to
a borrow pit is physically possible; however, he clarified the County controls what happens within
the road right-of-way. Responding to Chair Jerke, Mr. Bauer indicated it will be necessary to bore
the road in order to carry the runoff water into the borrow pit, and the applicant indicates in the
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plans that a pipe underneath County Road 55 will move the water to the opposite side of the road.
Mr. Mueller indicated since the Board has deleted Condition of Approval #1.A, there is now no
agreement between the ditch company and the applicant,stating a pipe may be placed underneath
the ditch, and the applicant is expressing concern that the ditch company may later retract
permission. Mr. Barker read paragraph six of the easement agreement into the record, indicating
it may cross both over and under the ditch, as long as the crossing is done at a depth not less than
three feet below the ditch, and the location of the crossing is marked. Ms. Lawley indicated the
ditch company previously indicated she would be limited to only one crossing, and that a crossing
would not be allowed within the County right-of-way. She further stated the ditch company
indicated it did not want utility companies to be able to go over or under the ditch without receiving
monetary compensation,therefore,the ditch company may grant permission to cross the ditch, but
she believes the company will make it cost prohibitive to do so. Commissioner Rademacher
indicated the utility companies will pay to cross irrigation canals, and the ditch company's bylaws
should indicate a set price to do so.
Mr. Foss indicated the previous conditions regarding crossing within the County right-of-way was
deleted, and documentation was provided to Mr. Mueller. Mr. Lawley indicated he is not sure how
the runoff will be discharged from the pond, and it actually may not be necessary to place a
crossing under the ditch. In response to Commissioner Masden, Mr. Bauer clarified the plans
propose to release from the pond, enter a pipe underneath the ditch, which continues to the east
side of County Road 55; however, there may be potential to utilize a borrow pit across the ditch,
dependent upon the gravity flow. He indicated staff will retain the flexibility to evaluate the area and
possibly come up with a better alternative. Further responding to Commissioner Masden,
Mr. Bauer confirmed the design may have to be modified to create positive flow, and the applicant
has the flexibility to cross over or under the ditch. Commissioners Masden and Rademacher
indicated a berm may be sufficient to capture runoff on the applicant's property, and stated the
determination will be left to Department staff. Mr. Bauer confirmed the real issue to solve will be
the discharge rate, and the protection of the right-of-way and the ditch. Commissioner
Rademacher indicated he would like the record to reflect that the applicant may be able to provide
adequate mitigation through other measures than a detention pond. In response to Commissioner
Masden, Mr. Bauer indicated the words "detention pond" could be replaced with the words
"detention structure" in order to avoid confusion.
In response to Chair Jerke, Ms. Lawley indicated she has reviewed, and concurs with the
Conditions of Approval, as modified.
Commissioner Rademacher indicated the applicants unfortunately entered into an easement
agreement which they did not understand; however, the modifications made by the Board are
appropriate, and he is in favor of approving the Resolution as amended. Commissioner Masden
concurred with Commissioner Rademacher, and indicated this process has been long and drawn
out. He indicated the easement agreement has prevented the Board from being able to solve
some of the requests of the applicant; however, the modifications will hopefully work to make the
process smoother from here on out.
Commissioner Long concurred and indicated this has been a very unique application due to the
recorded easement agreement. He stated the matter has the potential for further litigation;
however, he hopes that the applicant and the ditch company will be able to continue to work
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together to avoid unnecessary expenses. He further stated the Board has tried to mitigate the
situation to provide the least impact to both parties, and all future parties affected by the water
rights. He indicated he understands the ditch is the lifesource for many farmers within the area,
and he supports approval of the application.
Commissioner Garcia concurred with the previous comments stated, and expressed his
appreciation to Mr. Dinner for his explanation of the easement agreement. He indicated the
applicant entered into an agreement which was not fully understood, and stated it would have been
beneficial for the applicant to seek legal counsel before entering into the agreement.
Chair Jerke indicated he is in support of the application and he is pleased that mitigation has been
provided through the hearing today. He further indicated the parties should continue to work
together in the future, and noted the development will continue to be subject to market conditions.
Commissioner Long moved to approve the request of Sherry Lawley for a Site Specific
Development Plan and Planned Unit Development Final Plan, PF #1043, for seven (7) lots with
E (Estate)Zone uses and one (1) lot with A (Agricultural) Zone uses - Lawley Estates, based on
the recommendations of the Planning staff, with the Conditions of Approval as entered into the
record. His motion included the deletion of Conditions of Approval #1.A, and #1.J, with the
necessary re-lettering; the modification of Condition of Approval #1.B to delete the words "the
development sign,""pedestrian shelter,"and "landscaping and fencing, as well as provide bids for
landscaping estimates."; and the modification of Condition of Approval#1.C.1 to replace the words
"retention pond" with the words "detention pond." (Clerk's Note: For consistency with the
modifications approved by the Board, and upon approval of the Department of Planning Services,
Criteria of Approval #2.b was modified to delete the words 'the development sign," "pedestrian
shelter," and 'landscaping and fencing'; Condition of Approval #1.E was deleted; the words
"Landscaping and" were deleted from Condition of Approval #1.N.2; and Condition of
Approval#1.N.7 was deleted.) The motion was seconded by Commissioner Rademacher, and it
carried unanimously. There being no further discussion, the hearing was completed at 4:20 p.m.
2008-2395
PL1765
HEARING CERTIFICATION - SHERRY LAWLEY(PF #1043)
PAGE 19
This Certification was approved on the 11th day of August, 2008.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
/I - WELD COUNTY, COLORADO
LL.:
ATTEST: J id
J 1 -- Will' m H. Jerke, Chair
Weld County Clerk to the
Wes;:
Rob D. Mask' n, Pro Tern
BY:
Deputy Cler o the Board
William F. Garcia
EXCUSED DATE OF APPROVAL
David E.Long
oa ri N.ea/lj..r
Dougl s Rademac r
2008-2395
PL1765
EXHIBIT INVENTORY CONTROL SHEET
Case PF #1043 - SHERRY LAWLEY
Exhibit Submitted By Exhibit Description
A. Clerk to the Board Notice of Hearing (Filed under Legals)
B. Clerk to the Board New Notice of Hearing (filed under Legals)
C. Planning Staff Memorandum, dated 08/06/2008
D. Applicant Letter of Request and accompanying
documents
E. Attorney Melvin Dinner Warranty Deed
F. Attorney Melvin Dinner Right-of-Way and Easement Agreement
G. Don Dunker E-mail of Consent to act as representative
for the Ditch Company, dated 08/04/06
H. Planning Staff Certification and photos of sign posting
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