HomeMy WebLinkAbout20081454.tiff Esther Gesick
or: Esther Gesick
nt: Tuesday, May 13, 2008 8:46 AM
o: 'Peyton Ellington'
Subject: RE: Substation letter
Good Morning Peyton,
I received your voicemail and wanted to let you know your e-mail correspondence has been
added to the file as an Exhibit for the Board's review. If you have anything further to
add, please be sure to submit before the end of today.
Thanks!
Esther E. Gesick
Deputy Clerk to the Board
915 10th Street
Greeley, CO 80631
(970) 356-4000 X4226
(970) 352-0242 (fax)
Original Message
From: Peyton Ellington [mailto:peytonellington@yahoo.com]
Sent: Monday, May 12, 2008 10:57 AM
To: Esther Gesick
Subject: Substation letter
Hello Esther,
Alipank you for sending all the information from the
glilibstation hearing between United Power and Liberty
Ranch. I have typed up a letter to the Board of
Commissioners. It is attached. Please add this to
the file for the Commissioners to review. Thank you
for your help.
Sincerely,
Peyton Ellington
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1 2008-1454
• May 11, 2008
Weld County Board of Commissioners
The Clerk of the Board' s Office
915 10th Street, 3rd Floor
Centennial Center
Greeley, CO 80631
Re : Appeal of USR-1629
Dear Board of Commissioners :
My name is Peyton Ellington. I live at 13733 Saddle Dr. in
Mead Colorado in the Liberty Ranch Subdivision. I would
like to add my response to the latest information added to
our case by United Power.
First, I would like to respond to the affidavit by Mr.
Stanley F. Sessions concerning the economic impact on our
subdivision if the substation were located at the end of
our block.
I purchased my first home at 13733 Saddle Dr in Liberty
Ranch in November of last year. For me, this was a very big
• decision, one that I did a lot of research, looked at many
homes in many areas . The location of the purposed
substation, if it would have been already existing would
have been in clear sight driving up hwy 66 the major road
leading to Liberty Ranch. My first thought would have too
keep driving when seeing a substation with electrical wires
and tall power structures standing above a fence . Many
people would keep driving. When I look online searching
property value and substations, many sites state how a
substation would in fact "decrease property value
significantly" .
http: //www. roanoke .com/editorials/commentary/wb/159332
http: //www. tv7-4 .com/news/news story.aspx?id=69775
http: //www. leelanaunews . com/blog/2007/12/04/elmwood-
substation-foes-question-process-location/
http: //www.planostar. com/articles/2007/12/22/mckinney couri
er-gazette/news/vnews0l . txt
These are just a few sites I found. Our main concern as
homeowners is that our new homes we just purchased will
loose value. If this is United Power' s defense to this
concern, can they back this up in the way of compensation
for value lost on our homes?
•
• Another concern is that the tallest part of the substation
well exceeds the height of the fence. There is not a fence
tall enough to cover the substation.
Our neighborhood is not the only location the substation
can be located. Why not in an undeveloped area? One that
new residents could make a decision based on an already
existing substation. There is property that has no built
homes where it can be located, why not there? Why can' t
United Power extend the one already in use? If our
property became a part of Longmont, the substation would be
useless . What about the additional roads that will need to
be built to have access to the substation? Where will the
roads go?
I would ask that you deny the location of the proposed
substation. As a property owner, when I decide to move, I
would have a difficult time selling my house and stand to
loose value if a substation were located near my home.
Thank you for your time and hearing me .
Sincerely,
• Peyton Ellington
•
•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO Case Number: USR-1629
Respondent: Centex Homes u
Liberty Ranch Homeowners Association, Inc.
RESPONSE TO AMENDED COMPLAINT
Respondent Centex Homes and Liberty Ranch Homeowners Association
("Respondents"), by their attorneys, hereby submits their Response to Amended Complaint, as
follows:
•
I.
INTRODUCTION
On January 15, 2008 the Weld County Planning Commission ("Planning Commission")
denied Application #1629, submitted by A. Dale Slater Trust B/United Power, Inc. ("United
Power") for Site Specific Development Plan and Use By Special Review for a Major Facility of
a Public Utility or Public Agency ("Application"). The proposed use of the affected property was
the construction of a new electrical substation. United Power now appeals the denial of the
Application.
Following consideration of all information submitted by the Weld County Planning &
Building Services Department and weighing all evidence presented at the January 15, 2008
hearing on the Application, the Planning Commission ultimately denied Application and issued a
Resolution memorializing this decision ("Resolution").' Per Weld County Code ("Code") §23-
• ' See Record at January /5, 2008 Resolution of the Weld County Planning Commission. `EX IT
•
2-340, this determination of the Planning Commission constitutes a final decision concerning
this matter that is appealable only to a court of law pursuant to C.R.C.P. 106(a)(4).
As a result, the Weld County Board of County Commissioners ("Board") lacks
jurisdiction in this matter. Respondents specifically object to Board jurisdiction and the hearing
of the present appeal in any form, pursuant to any standard, as set forth herein.
To the extent the appeal moves forward, subject to and without waiving its jurisdictional
objections, Respondents contend that the only standard of review to be applied in these
proceedings is that of C.R.C.P. 106(a)(4). This is the standard specified in the April 21, 2008
Resolution of the Board setting the briefing schedule and hearing procedure for this appeal. This
appeal standard should be enforced.
When the Record of the January 15, 2008 Planning Commission is weighed against the
established standard, there is ample evidence supporting the denial of United Power's
Application and the underlying determination of the Planning Commission that United Power
• failed to satisfy the requirements of Code §23-2-400.C, §23-2-400.E and §23-2-400.G in support
of its proposed electrical substation.
It is clear that United Power did not expect to have its Application carefully scrutinized
and denied by the Planning Commission on January 15, 2008. It is also clear, however, that
United Power is attempting to use these appeal proceedings as an opportunity to stage an entirely
new hearing before the Board that fails to satisfy any of the procedural requirements of the Code
concerning this very serious type of land use approval. Not only has United Power objected to
the standard of review, demanding a complete de novo hearing, it has presented as part of its
Amended Complaint a myriad of "new" evidence that is not part of the Record of the original
January 15, 2008 Planning Commission proceedings. These issues are addressed separately in
Respondents' (1) Response To Objection To Appeal Criterion and (2) Motion To Strike All New
Evidence Submitted By Applicant On Appeal That Was Not Part of The Original Planning
Commission Record, both filed together with this brief. Respondents incorporate by reference
all arguments in those pleadings as if fully set forth herein.
United Power came through the Planning Commission process established in the Code
• falling short of expectations when its Application was voted down. United Power now seeks to
2
re-invent the process in its favor with a post hoc justification of its position designed to ramrod
the approval of its proposed electrical substation through an impermissible appeal to the Board.
Respondents contend that the express provisions of the Code, and the rights of the community,
must be weighed and United Power's appeal must either be (1) dismissed entirely for lack of
jurisdiction or (2) subject to and without waiving Respondents' jurisdictional objections, denied
pursuant to the established standard of review.
In support of their position, Respondents offer the following:
II.
THE JANUARY 15, 2008 RESOLUTION OF THE PLANNING COMMISSION
CONSTITUTES A FINAL DECISION APPEALABLE
ONLY TO A COURT OF LAW
A. Code §23-2-340 Vests The Planning Commission With Final Decision-Making
Authority Concerning The Application
In referring to the January 15, 2008 Resolution of the Weld County Planning
Commission denying the Application ("Resolution"), United Power conveniently refers to the
Resolution as a "recommendation" of the Planning Commission concerning denial of the
Application that is somehow subject to re-opening, review or reversal by the Board. While such
a characterization may be convenient to United Power's arguments and strategy, in reality, the
January 15, 2008 Resolution of the Planning Commission is a final decision appealable only to a
Court of law.2
Respondents understand that it is Weld County's contention that Section 3-8(n) of the
Home Rule Charter for the County of Weld Colorado ("Charter") controls in this matter, and the
Board is authorized to act as the board of appeals to hear complaints on actions taken by county
boards, commissions and departments. However, relevant portions of the Code undercut this
2 The wording of the Resolution states in pertinent part, "Moved by Robert Grand that the following resolution be
introduced for denial by the Weld County Planning Commission. Be it resolved that the . . . [Application] be
recommended unfavorably for the following reasons..." See Record at January 15, 2008 Resolution of the Weld
County Planning Commission. United Power apparently reads only the second sentence of this language without the
. context of the first sentence. In any event,and despite whatever semantics, the legal effect of this determination per
§23-2-340 of the Code remains unchanged. The Planning Commission is the final decision-maker.
3
•
analysis substantially with regard to the delegated powers of the Board. In particular, §23-2-340
of the Code specifies:
The Planning Commission has final permit review authority for a Major
Facility of a Public Utility or Public Agency as described in Section 23-2-300
above.
This provision expressly provides that the January 15, 2008 Planning Commission
Resolution denying United Power's Application constitutes a final order appealable directly to
District Court under C.R.C.P. I06(a)(4). This interpretation is supported by the long-standing
premises of statutory construction providing that a more specific statutory provision controls
over one potentially relating to the same subject matter that is more generalized in nature. 3 See,
e.g., Leaffer v. Zarlengo, 44 P.3d 1072, 1079 (Colo. 2002); Dewey v. Hardy, 917 P.2d 305, 310
(Colo. App. 1996).
This interpretation is further reinforced by the express provisions of the Code applicable
to the appeals procedure for the Board. Specifically, §2-4-50 of the Code, states with regard to
appeals and adjudications:
Purpose and Instructions. The purpose of this outline is to provide boards,
commissioners, department heads and other administrative bodies in the
County with a set of general procedures necessary to conduct hearings in
accordance with due process standards. These procedures shall be used only
when Sections of this Code, or other County regulatory ordinances and
resolutions, do not specifically address the procedural problems which arise
in the course of administrative proceedings. If a specific procedure of the
Code, an ordinance or regulation should conflict with any procedure from
this general outline, then the specific procedure should be followed.
This is not an insignificant issue, as proper interpretation of the foregoing provisions and
the authority of the Board under the present circumstances has a measurable impact on the rights
and responsibilities of the respective parties in this action. Among other things, the time for
3 It is also noteworthy that once a final determination is made by the Planning Commission concerning uses of
this nature,the Code provides that the facilities plan showing a three mile vicinity map and all features within 500
feet of the site is recorded in the land records by the County Clerk and Recorder. See Code §23-2-340(c)and §23-2-
380. This requirement is designed to provide notice so that neighbors and potential buyers are on notice of the
• intense use scheduled for their immediate area but it also demonstrates the final authority of the Planning
Commission in such matters.
4
appeal of a final decision of the Weld County Planning Commission pursuant to C.R.C.P.
106(a)(4) is thirty (30) days, which expired February 14, 2008, and United Power obviously
missed. See C.R.C.P. 106(a)(4)(b). The time for appeal under the administrative procedure
provisions of the Code is sixty (60) days and United Power is now being afforded an
impermissible "second hearing" on a Planning Commission determination that is already final
per the Code. See Code §2-4-10(A).
B. Numerous References Are Made In The Record To This Final Decision-Making
Authority By The County Attorney
United Power claims that counsel for Respondents repeatedly referred to the Planning
Commission's final decision-making authority4 and that the Planning Commission was somehow
"confused" by those references and by the ultimate decision concerning the Application and the
scope of Planning Commission review. This simply is not true. In fact, the County Attorney
also referred to the same final decision-making authority in the Transcript of the January 15,
• 2008 proceedings. Examples of these comments include:
". . . And I'd like to have that submitted so that it be sent on the Board of County
Commissioners. Actually, this is a major facility of a public utility so this is the
last hearing. I think it's good to put that in the record . . ." [Mr. Barker speaking
of marking Liberty Ranch map for the record.]5
". . .The process is the one in which... the USR for a major facility of a public
utility comes to you, pursuant to the state statute, it requires that you're the ones
[Planning Commission] that hear that. It does not go to the Board of County
Commissioners for them to hear a new case, in essence. You do that with your
typical USR where you make recommendations for approval or denial and the
Board of County Commissioners makes that decision. So you [Planning
Commission] are the final hearing officer for the County for purpose of hearing
the case de novo which means a new case . . ."6
Even officials of Weld County recognized the Planning Commission's final authority in
this matter. And it is also clear that the Planning Commission understood the scope of its
See Transcript at p. 39, lines 7-13 and p.40, lines 16-19.
Id. at p. 33, lines 4-7.
• 6 Id. at p. 78, lines 1-11.
5
•
authority and responsibilities when rendering its decision and issuing the Resolution? This is a
governmental body that knows what it is doing.
III.
THE BOARD OF COUNTY COMMISSIONERS HAS NO
JURISDICTION IN THIS MATTER
Based on the analysis set forth in Section II above, Respondents object to this hearing in
its entirety and, respectfully, it is Respondents' position that the Board lacks jurisdiction to
review this matter. This position is further supported by the serious issues that arise when the
various procedural and substantive outcomes of Board "review" of this matter are fully
evaluated.
A. Any De Novo Hearing Usurps And Violates The Provisions Of The Code
Establishing The Procedure For Applications For Use By Special Review
United Power is advocating a de novo review of all matters considered by the Planning
• Commission on January 15, 2008. Respondents have responded to this issue in their Response
To Objection To Standard Of Review filed herewith. However, as a practical matter, United
Power's attempt at a second hearing raises serious jurisdictional questions best addressed herein.
The Code section relied upon by United Power is the general administrative provision of
§2-4-10(D) of the Code stating:
The Board of County Commissioners shall hear all available facts pertinent
to the incident, may schedule a second hearing within thirty (30) days
following the initial hearing if the Board determines such a need, and shall
render a determination within thirty(30)days of the final hearing.
If it is the intention of the Board to hear new evidence concerning the Application on
appeal, then the final authority vested in the Planning Commission in Code §23-2-340
concerning this specific type of special use determination is rendered utterly meaningless.
Moreover, absolutely no standard of review is identified. United Power essentially would be
• ' 14. at pp. 83-95.
6
afforded an open and unrestricted second hearing on the same issue without having to satisfy any
of the notice and procedural requirements of the Code established for a major land use
determination that affects the entire community. This would include notice, posting and
publication requirements associated with the re-opening of the previous final denial of the
Application by the Planning Commission. See, e.g., Code §23-2-210, §23-2-230, §23-2-260.
Allowing a de novo hearing would permit United Power to strong-arm its application through on
its own terms in violation of the Code provisions pertaining to the very land use approval it
seeks.
B. The C.R.C.P. 106(a)(4) Standard Established For These Proceedings Has The
Ultimate Effect Of Remanding A Final Decision Back To The Final Decision-
maker
Notice of hearing in this matter was issued in the April 21, 2008 Resolution of the Board
attached hereto as Exhibit A.8 This Resolution established the hearing procedure and the
• standard of review for this appeal as follows:
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to
determine whether or not it should grant the appeal is whether the Planning
Commission exceeded its jurisdiction or abused its discretion in denying the Site
Specific Development Plan And Use By Special Review Permit #1629 for a
Major Facility of a Public Utility or Public Agency (electrical substation), subject
to the provisions of Section 23-4-420, in the A (Agricultural) Zone District for A.
Dale Slater Trust B/United Power.
See Exhibit A at p. 2.
A review of the minutes and commentary from the meeting adopting the April 21, 2008
Resolution clearly confirms the intent of the Board to adhere to the C.R.C.P. 106(a)(4) standard.
A copy of those minutes is currently available on the website for Weld County government and
is attached hereto as Exhibit B.9
8 The submission of Exhibit A is permissible in these proceedings because it addresses the issue of jurisdiction
and not the underlying substantive basis for the current appeal.
. 9 For the same reason,the submission of Exhibit B addressing jurisdictional issues is also appropriate.
7
The minutes state, in pertinent part:
CONSIDER SETTING AMENDED HEARING DATE, SETTING OF
BRIEFING SCHEDULE, AND ESTABLISHMENT OF CRITERIA FOR
APPEAL OF PLANNING COMMISSION DENIAL OF USE BY SPECIAL
REVIEW #1629 FOR A MAJOR FACILITY OF A PUBLIC UTILITY OR
PUBLIC AGENCY:
Mr. Barker10 stated questions have been raised regarding the criteria for review,
and the third page of Exhibit A does not provide a standard of review, therefore,
there has been debate between the parties regarding the standard for review. He
recommended the appeal brought before the Board be treated in the same manner
as a Rule 106 Hearing, similar to land use hearings denied by the Board which
may be appealed to the District Court. He indicated the Board must consider
whether the Planning Commission has exceeded its jurisdiction or abused its
discretion in denying the permit for USR #1629. He stated Mark Meyer,
representing United Power, provided an e-mail, contained within Exhibit A,
• which included the suggested language for the appeal criteria to be incorporated
into the Resolution, which he reviewed for the record. Mr. Barker summarized the
Board may consider the appeal through the Rule 106 Hearing, determining
whether the Planning Commission exceeded its jurisdiction or abused its
discretion, or, as suggested by United Power, that the Planning Commission met
its burden of proof contained with the previous section references. He stated he
reviewed the Weld County Code to determine other instances of appeals, and
two types of appeals were found, including a Grievance Hearing for employee
discipline, as detailed in Chapter 3, and the appeal of Road Impact Fees, as
detailed in Chapter 20. He clarified the Board is the appellate body for
grievance procedures, which is similar to the standards for Rule 106 Hearings.
He further clarified the appeal process within Chapter 20 details the appeal of
the decision made by the Director of the Department of Public Works, and the
Board must make written findings of fact and conclusions of law, according to
the same standards of the decision maker.
Mr. Barker indicated his belief is that this type of appeal shall be handled
similar to a grievance hearing, since the decision was made by a lesser
Commission, and public testimony was considered, which is different than the
situation for an appeal of a Road Impact Fee. He clarified grievance hearings
do not require a public hearing; however, the appeal does come before a board
• ° Mr. Bruce Barker, Esq. is the County Attorney for Weld County, Colorado.
8
•
appointed by the Board of County Commissioners to make a decision. He
indicated it is more appropriate to determine if the Planning Commission
exceeded its jurisdiction or abused its discretion. He stated he received an e-mail
from Cynthia Treadwell [attorney for Respondents], marked Exhibit B, which
contained a suggested modification to the Resolution language; however, he
recommended that the language within the Resolution remain as presented.
In response to Chair Pro-Tem Masden, Mr. Barker indicated the Board will not
receive additional testimony or evidence at the hearing; however, the Board will
review the previous record of the Planning Commission, which is similar to a
Rule 106 Hearing. Responding to Commissioner Rademacher, Mr. Barker
clarified the Board will only hear oral arguments from the attorney
representing United Power, and the attorney representing the Homeowners'
Association of the surrounding property owners, only regarding the decision
made by the Planning Commission. He further clarified additional evidence
and testimony will not be presented within the hearing. Commissioner Garcia
clarified that within the hearing now proposed for May 14, 2008, the Board will
not consider each fact as the Planning Commission did at the hearing on January
15, 2008; rather, the Board will need to determine whether the Planning
Commission was clearly wrong in the decision, or if the Planning Commission
• exceeded its jurisdiction. He clarified the Board will not be in a position to
second-guess the facts; however, the Board will need to second-guess the action
of the Planning Commission. In response to Commissioner Rademacher,
Commissioner Garcia indicated the Board will either affirm the decision of the
Planning Commission, or remand the decision, which means the matter will be
sent back to the Planning Commission with directions to correct certain
mistakes. Further responding to Commissioner Rademacher, Mr. Barker
indicated if the permit is denied again by the Planning Commission, after the
remand, the denial will stand. He clarified State statute allows for the process of
an appeal to the Public Utilities Commission (PUC), therefore, United Power may
enact their right to initiate an appeal to the PUC. In response to Chair Pro-Tem
Masden, Mr. Barker confirmed that if the Board approves the appeal, the
matter will be sent back to the Planning Commission with written directions for
further testimony and considerations. No public testimony was provided
regarding the matter. Responding to Commissioner Rademacher, Mr. Barker
recommended the Board approve the Resolution setting the hearing date and
briefing schedule, as presented, without the modifications suggested by the e-
mails submitted by Mr. Meyer or Ms. Treadwell. Commissioner Rademacher
moved to approve the Resolution to set an amended hearing date and briefing
schedule, and to establish the criteria for the appeal of Use by Special Review
Permit #1629. Seconded by Commissioner Garcia, the motion carried
unanimously.
• See Exhibit B (emphasis added).
9
•
Two things are clear when these minutes are reviewed. First, no appeal procedures exist
addressing the present circumstances. As a result, research and analysis was needed to determine
potential options in order to fashion some kind of criteria for consideration of this appeal. This
circumstance in itself belies lack of jurisdiction. Second, a C.R.C.P. 106(a)(4)-style hearing was
ultimately chosen, which bars the introduction of new evidence or argument that was not part of
the record of the original proceedings and provides a sole remedy of remand to the governmental
body that rendered the decision being appealed.
Code §23-2-340 expressly provides that the Planning Commission has final permit
review authority for a Major Facility of a Public Utility or Public Agency. That includes United
Power's Application. In the event of remand, the Application would go from the Board back to
the Planning Commission. The practical effect of this would be to "remand" a final
determination back to the designated final decision-maker. This simply makes no sense
whatsoever and once again renders utterly meaningless the final authority vested in the Planning
Commission in Code §23-2-340 concerning this specific type of special use determination.
Respectfully,for the reasons set forth herein, the Board should decline jurisdiction in
this matter. The January 15, 2008 denial of United Power's Application is not a
"recommendation."Per Code§23-2-340 it is a final decision appealable only to a court of law.
United Power has missed that deadline and should not now be permitted to have a "second
hearing"on a determination that is already binding.
Iv.
TO THE EXTENT THE BOARD CONTINUES WITH THIS APPEAL
THE STANDARD OF C.R.C.P. 106(a)(4) APPLIES
Subject to and without waiving any objections to jurisdiction set forth herein,
Respondents assert that if this appeal moves forward, the legal standard of C.R.C.P. 106(a)(4)
governs. As set forth above, the standard of review in this matter is "whether the Planning
•
10
•
Commission exceeded its jurisdiction or abused its discretion in denying the [Application]."I
The minutes from the meeting adopting this standard of review make numerous references to
C.R.C.P. 106 and the fact that this appeal is a"106-type" hearing.
For this reason, the provisions for appeal of a final land use determination to a District
Court under C.R.C.P. 106(a)(4) are in fact instructive here, with regard to (1) what evidence may
be considered and (2) the scope of review.
C.R.C.P. 106(a)(4) permits a right of action to an aggrieved party where "any
governmental body or officer or any lower judicial body exercising judicial or quasi judicial
functions12 has exceeded its jurisdiction or abused its discretion and there is no plain, speedy and
adequate remedy otherwise provided by law." C.R.C.P. 106(a)(4). It is well-established that,
under C.R.C.P. 106(a)(4), court review is strictly limited to "a determination of whether the
governmental body or officer has exceeded its jurisdiction or abused its discretion, based on the
evidence before the defendant body or officer." C.R.C.P. 106(a)(4)(I). The scope of this review
• under this rule is strictly limited. City of Colorado Springs v. Dist. Court, 184 Colo. 177, 179,
519 P.2d 325, 326 (1974).
Under C.R.C.P. 106(a)(4), a court cannot consider whether the decision of the
governmental body was right or wrong, re-weigh the evidence before the governmental body,
substitute its own judgment for that of the governmental body, take or require additional
evidence to "supplement" or "clarify" the record below or otherwise supplant the findings and
decision of the governmental body. See, e.g., Bd. Of County Comm'rs of Routt County v.
O'Dell, 920 P.2d 48, 50 (Colo. 1996) (re-weighing evidence improper under C.R.C.P.
106(a)(4)); Garland v. Bd. of County Comm'rs, 660 P.2d 20, 22-23 (Colo. App. 1982)(remand or
supplementation of record inappropriate under this rule); City of Colorado Springs v. Dist. Court,
184 Colo. 177, 180, 519 P.2d 325, 327 (1974) (grant of discovery by reviewing court in
106(a)(4) action was improper); Toland v. Strohl, 147 Colo. 577, 583, 364 P.2d 588, 593
See April 21,2008 Resolution of the Weld County Board of County Commissioners. United Power has also
filed an Objection To Appeal Criterion and Respondents have responded to the issues raised therein via separate
pleading.
12
• It is undisputed that the action in this case was quasi-judicial in nature.
11
(1961)(taking testimony and resolution of disputed issues of fact inappropriate on review of
governmental action); Civil Service Comm'n v. Hazlett, 119 Colo. 173, 178, 201 P.2d 616, 620
(1948) (court cannot consider whether governmental action was right or wrong, substitute its
judgment for that of the governmental body or otherwise interfere with the findings and decision
of the governmental body supported by the evidence).
C.R.C.P. 106(a)(4) empowers a court to review the record of the proceedings conducted
below and to determine whether the government official or entity exceeded its authority or
abused its discretion. Widder v. Durango School Dist. No. 9-R, 85 P.3d 518, 526-27 (Colo.
2004). The decision of a governmental body is considered "an abuse of discretion" only if there
is no competent evidence to support the decision, i.e., "there is an absence of evidence in the
record to support the ultimate decision of the governmental or administrative body and hence the
decision can only be explained as an arbitrary and capricious exercise of authority." Van Sickle
v. Boyes, 797 P.2d 1267, 1272 (Colo. 1990); McCann v. Lettig, 928 P.2d 816, 817 (Colo. App.
• 1996). However, governmental decisions must be affirmed if there is any competent evidence in
the record to support the action taken. Bauer v. City of Wheat Ridge, 182 Colo. 324, 327, 513
P.2d 203, 204 (1973).
Based on the parameters set by the Board for these proceedings, this is the standard to be
applied.
V.
THE JANUARY 15, 2008 PLANNING COMMISSION RECORD
CONTAINS AMPLE SUPPORT FOR DENIAL OF
UNITED POWER'S APPLICATION
Subject to and without waiving any objections to jurisdiction set forth herein, the
following substantive issues were raised before the Planning Commission:
A. Uses By Special Review
This is a Use By Special Review. Code Section 23-2-200 provides:
Intent and Applicability. Uses By Special Review are Uses which have
• been determined to be more intense or to have a potentially greater impact
12
•
than the Uses Allowed By Right in a specific zone district. Therefore,
Uses By Special Review require additional consideration to ensure that
they are established and operated in a manner that is compatible with the
existing and planned Uses in the Neighborhood. The additional
consideration or regulation of Uses By Special Review is designed to
protect and promote health, safety, convenience and general welfare of the
present and future residents of the County.
In a general sense, Code §23-2-240, §23-2-260 and §23-2-270 require an applicant
seeking a Use By Special Review to support its application with information and documentation
demonstrating satisfaction of criteria confirming the appropriateness of the proposed use on the
land affected, and conformity with the development and design standards of the County.
However, United Power's Application involves a Site Specific Development Plan and
Use By Special Review for a Major Facility of a Public Utility or Public Agency (Electrical
Substation). In addition to the provisions above which govern Uses By Special Review
generally, the following additional Code provisions are also relevant here:
• Code §23-2-400, governing Major Facilities Of A Public Utility, provides:
The Planning Commission may approve an application for a site selection and
construction or expansion of a Major Facility Of A Public Utility only if all
applicable requirements of this Division are met and the applicant has shown that
the application is consistent with the following standards:
A. Reasonable efforts have been made to avoid irrigated cropland or
to minimize impacts on such lands in those cases where avoidance
is impractical.
13. The facility will not have an undue adverse effect on existing and
future development of the surrounding area as set forth in
applicable Master Plans.
C. The design of the proposed facility mitigates negative impacts on
the surrounding area to the greatest extent feasible.
D. The site shall be maintained in such a manner so as to control soil
erosion, dust and the growth of Noxious Weeds.
E. The applicant has agreed to implement any reasonable measures
• deemed necessary by the Planning Commission to ensure that the
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health, safety and welfare of the inhabitants of the County will be
protected, and to mitigate or minimize any potential adverse
impacts from the proposed facility.
F. The proposed facility will be supplied by an adequate water supply
which has been evaluated with reference to impacts of the use of
such supply on agricultural uses. All reasonable steps have been
taken by the applicant to minimize negative impacts on agricultural
uses and lands.
G. All reasonable alternatives to the proposal have been adequately
assessed, and the proposed action is consistent with the best
interests of the people of the County and represents a balanced use
of resources in the affected area.
H. It has been determined that the nature and location or expansion of
a proposed Power Plant facility will not create an expansion of the
demand for government services beyond the reasonable capacity of
an impacted community or the County to provide such services.
Where it is indicated that such an expansion of the demand for
• services will occur beyond the reasonable capacity to provide such
services, the applicant must clearly show how such impacts will be
mitigated prior to approval of the proposal by the County.
I. It has been determined that the nature and location or expansion of
the facility will meet Colorado Department of Health and County
air quality standards.
J. Adequate electric, gas, telephone, water, sewage and other utilities
exist or can be developed to service the site.
K. The nature and location or expansion of the facility will not
unreasonably interfere with any significant wildlife habitat and will
not unreasonably affect any endangered wildlife species, unique
natural resource, historic landmark or archaeological site within
the affected area.
L. The applicant's engineer has certified that the drainage plans
developed for and to be implemented on the sire will prevent
surface drainage from leaving the site which would exceed historic
runoff flows.
• M. Where a proposed power plant is to be located in an area where a
sufficient housing supply is unavailable for the anticipated
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immigrant construction force, the applicant for the location of such
a facility shall present plans showing how housing will be provided
for such workers without creating major negative impacts on
existing residents in the impacted communities.
N. The applicant shall submit a signed copy of the notice of inquiry
form demonstrating that the IGA municipality does not wish to
annex, if required by IGA (citation omitted).
These provisions are conjunctive, not disjunctive, meaning each and every element must
be satisfied in order to support an application for Use By Special Review. In addition to Code
§23-2-400 above, Code §23-4-420 further provides:
Applicants for activities reviewed pursuant to Article II, Division 5 of this
Chapter as Major Facilities of Public Utilities shall have the burden of
proof to demonstrate that there is a need for the facility within the
proposed area of service and the Planning Commission shall be satisfied
that a need exists as part of the determinations for any such permit.
• These two provisions have the combined effect of: (1) requiring more substantial
justification for the proposed facility taking into account adverse effect on the surrounding areas
and mitigation of negative impacts and (2) placing the burden squarely upon the applicant
concerning proof of satisfaction of those requirements and the overall need for the facility.
B. The Planning Commission Determination
The Planning Commission determined that United Power failed to meet its burden and
specifically failed satisfy the requirements of Code §23-2-400.C (The design of the proposed
facility mitigates negative impacts on the surrounding area to the greatest extent feasible), Code
§23-2-400.E (the applicant has agreed to implement any reasonable measures deemed necessary
by the Planning Commission to ensure that the health, safety and welfare of the inhabitants of the
County will be protected, and to mitigate or minimize any potential adverse impacts from the
proposed facility) and Code §23-2-400.G (all reasonable alternatives to the proposal have been
•
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adequately assessed, and the proposed action is consistent with the best interests of the people of
the County and represents a balanced use of resources in the affected area).13
C. Support For Planning Commission Determination
When evaluated in accordance with the established standards of.C.R.C.P. 106(a)(4), there
is ample support for the January 15, 2008 determination of the Planning Commission denying
United Power's Application, as follows:
1. Need For Facility And Assessment Of All Reasonable Alternatives
Code §23-4-420 and §23-4-400.G requires United Power to demonstrate a need for the
proposed facility and proof that all reasonable alternatives to the proposal have been adequately
assessed, and the proposed action is consistent with the best interests of the people of the County
and represents a balanced use of resources in the affected area.
The Record indicates that United Power failed to properly demonstrate a need for the
proposed electrical substation. Examining the relevant area adjoining the site for the proposed
• electrical substation since 2004, there has been no mention of need by United Power nor any
appearance or involvement by United Power in the public development review process for at
least two substantial residential developments.
The Liberty Ranch/Fredrickson Farms development overseen by Centex has had two
public processes since 2004. The first occurred January 29, 2004. The second was a series of
hearings held August 11, 2006 and August 30, 2006. During this entire process, involving a $13
million investment and entitlements for 403 homes, an elementary school, community park and
commercial sites, United Power never once identified a need for a facility in this area as a
potential development condition.14
More recently, the Waterfront development also underwent a public process concerning a
mixed use development of 587 acres with 1800 homes and 100,000 square feet of proposed
13 See Record at January 15, 2008 Resolution of the Weld County Planning Commission.
14 See Record at January 29, 2004 Letter from United Power to Centex Homes(labeled"Exhibit 6.B")and at
• August 30, 2006 letter from United Power to Centex Homes(labeled"Exhibit 6.C"). See also Transcript at pp.35-37
and p. 38, lines 1-2.
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commercial space. This development went before the Commission in October of 2007 and
before the Board in November of 2007 and yet again, there was no participation by the applicant
in this series of hearings identifying a need for a power substation in this area as a potential
development condition:s Over at least a four year period, with development occurring all
around the site proposed for United Power's substation, United Power never once indicated any
kind of need for this facility of placed any condition on the surrounding development for
inability to serve.
The Record also reflects that United Power failed to demonstrate adequate assessment of
all reasonable alternatives, as required. The Application materials in the Record make no
mention of this requirement whatsoever, and the Application contains only a purchase and sale
agreement for the Slater property, which is the proposed site in the Application.'6 United
Power's presentation included a Parcel Selection Map and Timeline,l7 however, the Record and
Transcript reveal discussion only of Mead Crossing,$ Waterfront19 and Kitely Farms.2° United
• Power basically said that only one landowner (Slater) responded positively.21 When asked why
the facility was not located further south the answer was the same, i.e., the proposed site was the
only agreeable landowner.22 Again and again the reason for selection of this site was an
's See Transcript at p.38, lines 5-21 and p. 39, lines 1-2.
16 See Record at Purchase And Sale Agreement.
1? See Record at United Power Parcel Selections Map and United Power Powerpoint Presentation at pp. 3-4
(entitled "Timeline").
IS See Transcript at p. 11, lines 18-22,p. 12, lines 1-6 and p. 13 at lines 1-2 (it should be noted that additional cost
was also alluded to by United Power's representative who also started to say that locating the facility further south
would require additional transmission structures),p. 71 at lines 14-22.
1° See Transcript at p. 71, line 23 and p. 72, lines 1-3.
20 See Transcript at p. 71, lines 4-8.
21 See Transcript at p. 16, lines 7-9.
22
• See Transcript at p. 18, line 20 and p. 19 at lines 1-9.
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agreeable landowner.23 United Power failed to demonstrate what actions were taken to consider
all reasonable alternative locations for the proposed power substation.24
In contrast to the representations made by United Power, the Record reflects that fact-
checking done by the Liberty Ranch Homeowners Association revealed that United Power failed
to contact multiple surrounding landowners concerning acquisition of alternative sites for the
proposed facility.25
The Record further establishes that United Power failed to demonstrate that the proposed
power substation is consistent with the best interests of the people of the County and represents a
balanced use of resources in the affected area. It is undisputed that the site for the facility
proposed in United Power's Application is surrounded on all sides by Master Planned medium
density residential property.26 With regard to the compatibility analysis, it is the Master Plan
designation that controls. Code §23-2-400.B.
In addition, there were dozens of affected residents who either spoke against the
• Application citing issues such as health and safety, incompatibility of the proposed substation
with surrounding residential uses, failure to identify possible alternatives and the very late timing
of the construction and planning for this facility in relation to all of the residences that were
already fully entitled and/or constructed.27
23 See Transcript at p. 71, lines 20-22 and at p. 75, lines 4-13.
24 This is underscored by the myriad of post hoc evidence United Power now impermissibly seeks to include as
part of this appeal demonstrating its due diligence in this regard. See Respondents' Motion To Strike All New
Evidence Submitted By Applicant On Appeal That Was Not Part Of The Original Planning Commission Record.
25 See Transcript at p. 31, lines 14-24 and p. 32 lines 1-3.
26 See Transcript at p. 69, lines 1-12 (where United Power representative agrees that the entire immediate area is
residential but surprisingly claims that is why the site cannot be located somewhere else). See also Record at Town
of Mead Land Use Plan Map.
27 See Record at Letters of Kilgore, Griffin, Souhrada, Michael, Pouoch, John, Lyle, Goedle, Save, Lewis, Trippon,
Orboeck, Gray, Voley and Stubbs and Transcript at pp. 31-33(testimony of Alexander)and pp.49-68 (testimony of
Seris, Medlock, Knutson, Nellington, Palaszewski,Tripon, DeLauder, Page, Roberts, Okkers, Lewis, Baldispino).
See also Record at Presentation Packet Entitled "Power Substation ... Is There An Alternative(marked"Exhibit
• 6.F")and at Article Entitled "Power Lines And Property Values: The Good, The Bad And The Ugly."
18
•
The residential uses surrounding the proposed site of this power substation were all
established well before the current special use application. The land in the entire immediate area
is designated as medium density residential, and several parcels have proceeded through the
entitlement and development process accordingly. United Power sought to force approval of a
high-impact special use in an area where such uses are not permissible. Moreover, the Code
provides that a Major Electrical Facility is only allowed in an Agricultural or I-3 zone district,
removed from other land uses. See Code §23-2-300.
United Power had no response to this other than "someone will always be affected."28
This hardly satisfies United Power's burden of proof with regard to Code §23-4-420.G.
2. Compatibility—Mitigation Of Negative Impacts
The Record also demonstrates that United Power failed to establish that the design of the
proposed major electrical substation facility mitigates negative impacts on the surrounding area
to the greatest extent feasible. See Code §23-2-400.C.
• The Town of Mead Comprehensive Plan demonstrates that the land within its borders
adjacent to the proposed site for the power substation is also medium density residential
development.29 As a result, the comprehensive plan establishes that the proposed area for this
major power substation is surrounded 360 degrees by residential uses. This is undisputed in the
Record.
Again, the surrounding area is master planned medium density residential. United Power
essentially seeks to locate its power substation alongside prior approved uses with which it is
inherently incompatible. The Record establishes that there is virtually no mitigation in the
proposed site plan. United Power agreed to provide certain setbacks, a ten foot fence, some
berms and some landscaping.3° In reality, this is a facility that will range in height from 24 to 27
feet and there is no amount of fencing and minor landscaping as proposed by United Power that
28 See Transcript at p. 70, lines 7-18.
29 See Record at Town Of Mead Land Use Plan(labeled"Exhibit 6.E")and Transcript at p.41, lines 7-17.
30 See Record at United Power Powerpoint Presentation at p. 8(entitled"Design-Aesthetics—Fencing")and at
• pp. 9-10("entitled"Design Views")and Transcript at p. 20, lines 20-22, p.21 at linesl5-23 and p. 22 at lines 1-2.
19
can possibly serve to mitigate the impact of a major electrical substation on all of the residences
literally encircling the proposed site.31
In addition, it appears from the Commission's staff report that an incorrect standard was
applied when evaluating mitigation. Again, it is not the current uses of the surrounding property
that controls in the mitigation analysis, but rather the Master Plan. Code §23-2-400.B.
3. Ensuring The Health, Safety And Welfare Of Inhabitants
United Power failed to establish that it has agreed to implement any reasonable measures
deemed necessary by the Planning Commission to ensure that the health, safety and welfare of
the inhabitants of the County will be protected, and to mitigate or minimize any potential adverse
impacts from the proposed facility. Code §23-4-420.E.
The proposed special use is also one recognized by the Code as carrying an impact of
sufficient intensity to require consideration of the health, safety, convenience and general welfare
of the present and future residents of the County. Id. See also Code §23-2-200. Nonetheless,
• United Power proposed nothing more by way of mitigation than those nominal measures
identified in Section V.C.2, above.
In that regard, numerous residents of the surrounding area either spoke at the hearing or
wrote letters contesting this special use application.32 Information and articles were also offered
for the Planning Commission's consideration concerning potential adverse effects of electric and
magnetic emissions from a major electrical substation such as the facility proposed by United
Power.33
While it is fair to say that other evidence was offered concerning this issue discounting
health risks, this is without a doubt an unsettled area of research and science and there was
sufficient evidence in the Record supporting the Planning Commission's determination that
J1 See Transcript at pp.45-46 and p.47 at lines I-5.
32 See Record at Letters of Kilgore, Grin, Souhrada, Michael, Pouoch, John, Lyle, Goedle, Save, Lewis, Trippon,
Orboeck, Gray, Voley and Stubbs and Transcript at pp. 30-33(testimony of Alexander)and pp.49-68 (testimony of
Seris, Medlock, Knutson,Nellington, Palaszewski, Tripon, DeLauder, Page,Roberts,Okkers, Lewis, Baldispino).
• 13 Id. at Transcript pp.49-68. Id. at Letters of Kilgore and Martin. See also Record at Article Entitled "Coping
With The Risk of Cancer In Children Living Close To Power Lines."
20
•
United Power failed to meet the baseline mitigation requirements of Code §23-4-420.C whatever
the health risks may be.
VI.
CONCLUSION
As set forth herein, to the extent the Board elects to exercise jurisdiction over this matter,
there is ample support in the Record and the Transcript of the January 15, 2008 for the Planning
Commission's denial of United Power's Application and that decision must be upheld.
Dated this 13`h day of May, 2008.
FOSTER GRAHAM MILSTEIN MILLER
CALISHER/LLP
• David Vv m. Fost r(No. 283)
Cynthia . Treadwell (No. 28868)
621 1`7` Street, Suite 1900
Denver, Colorado 80293
Telephone: (303) 333-9810
Facsimile: (303) 333-9786
Attorneys for Respondents Centex Homes and
Liberty Ranch Homeowners Association, Inc.
•
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 13`h day of May, 2008, a true and correct
copy of the foregoing RESPONSE TO AMENDED COMPLAINT was served by hand-
delivery and sent via United States Mail, First Class postage prepaid, as follows:
Weld County Board of County Commissioners
Clerk of the Board's Office
Attn: Esther E. Gesik
915 10th Street, 3rd Floor
Centennial Center
Greeley, Colorado 80631
Bruce T. Barker, Esq.
Weld County Attorney's Office
915 Tenth Street
P.O. Box 758
Greeley, Colorado 80632
NRichard K. Clark, Esq.
Mark A. Meyer, Esq.
Rothegerber, Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
2Nui Mai)
Taira" i La le
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EXHIBIT A
•
RESOLUTION
RE: AMEND SETTING OF HEARING DATE, SETTING OF BRIEFING SCHEDULE, AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION
DENIAL OF USE BY SPECIAL REVIEW#1629 FOR A MAJOR FACILITY OF A
PUBLIC UTILITY OR PUBLIC AGENCY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on January 15, 2008, in accordance with Chapter 23 of the Weld County
Code, the Weld County Planning Commission voted to deny the application of A. Dale Slater
Trust B, Attn: Nancy Slater, 13433 County Road 7, Longmont, Colorado 80504 / United Power,
Inc., 500 Cooperative Way, P.O. Box 929, Brighton, Colorado 80603, for a Site Specific
Development Plan and Use by Special Review Permit#1629 for a Major Facility of a Public
Utility or Public Agency (electrical substation), subject to the provisions of Section 23-4-420, in
the A (Agricultural) Zone District, and
. WHEREAS, on March 14, 2008, United Power submitted an appeal of the Planning
Commission's findings, pursuant to Section 2-4-10 of the Weld County Code, and
WHEREAS, by and through Resolution 2008-0914, the Board set a public hearing on
April 23, 2008, at 9:00 a.m., for the purpose of taking oral argument and considering said
appeal, with an accompanying briefing schedule, and
WHEREAS, the completion of the transcription of proceedings before the Planning
Commission on January 15, 2008, has been delayed and, as a result, the hearing date and
briefing schedule set in Resolution 2008-0914 must be modified, and
WHEREAS, the Board of County Commissioners now deems it advisable to amend its
hearing setting and briefing schedule, and to establish the criteria for the appeal so as to assist
the parties in their briefing and preparation for said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that a public hearing to take oral argument and to consider the appeal
of the Planning Commission's denial of a Site Specific Development Plan and Use by Special
Review Permit#1629 for a Major Facility of a Public Utility or Public Agency (electrical
substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone District,
for A. Dale Slater Trust B / United Power, be, and hereby is, scheduled for May 14, 2008, at
9:00 a.m., and that the hearing originally set for April 23, 2008, be, and hereby is, vacated.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
• is, ordered to obtain a transcript of the proceedings before the Planning Commission on January
2008-"
PL1963
C.
•
15, 2008, and to include it in a complete record of the case being certified by the Clerk no later
than April 25, 2008.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send a copy of the complete certified record of the case to persons who request a
copy of the same and to the Board for its review.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send notice of said May 14, 2008, hearing to those persons who previously
received notice of the January 15, 2008, Planning Commission hearing.
BE IT FURTHER RESOLVED by the Board that United Power shall have to and until to
April 30, 2008, in which to file its brief in the appeal; any persons wish to respond in writing to
the United Power brief shall then have to and until May 6, 2008, to file such response; and
United Powershall then have to and until May 9, 2008, in which to file a reply to any responses
thus filed.
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to determine
whether or not it should grant the appeal shall be whether the Planning Commission exceeded
its jurisdiction or abused its discretion in denying the Site Specific Development Plan and Use
• by Special Review Permit #1629 for a Major Facility of a Public Utility or Public Agency
(electrical substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone
District, for A. Dale Slater Trust B / United Power.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21s day of April, A.D., 2008.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
William H. Jerke, Chair
Weld County Clerk to the Board
Robert D. Masden, Pro-Tern
BY:
Deputy Clerk to the Board
William F. Garcia
APPROVED AS TO FORM:
David E. Long
County Attorney
Douglas Rademacher
• Date of signature:
2008-"
PL1963
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EXHIBIT B
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Weld County - Meetings and Minutes Page 1 of 7
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Weld County - Minutes
Board of Commissioners
Record of Proceedings
APRIL 21 , 2008
The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity
with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial
Center, Greeley, Colorado, April 21 , 2008, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair Pro-Tem and on roll call the following
members were present, constituting a quorum of the members thereof:
Commissioner William H. Jerke, Chair - EXCUSED
Commissioner Robert D. Masden, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Jennifer VanEgdom
Controller, Barb Connolly
MINUTES: Commissioner Garcia moved to approve the minutes of the Board of County Commissioners
meeting of April 16 , 2008, as printed. Commissioner Rademacher seconded the motion, and it carried
unanimously.
CERTIFICATION OF HEARINGS: Commissioner Rademacher moved to approve the Certification of
Hearings conducted on April 16 , 2008, as follows: 1) USR #1644 - Jack and Vicki Pierson; and
2) USR #1642 - Lucerne Commons, LLC. Commissioner Long seconded the motion, which carried
unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: Brad Taylor, City of Greeley resident, stated he is member of the Weld Advocacy
Network on Disabilities, which is a group of individuals dedicated to disability and advocacy issues. He
stated the group previously questioned the grievance procedure for the Weld County Transportation
Program, specifically regarding transportation needs for those with disabilities. He further stated
approximately one year ago, a large group of individuals met with Walk Speckman, Director,
• Department of Human Services, to discuss the transportation program, and he attended the meeting
as an advocate. Mr. Taylor stated during the meeting, it was apparent to him that a solution needed to
be found so that disabled citizens could access the transportation program in order to receive the rides
they need. He indicated he inquired about a grievance procedure, and Mr. Speckman and
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Weld County - Meetings and Minutes Page 2 of 7
Commissioner Garcia confirmed that one existed. He stated the group waited a long time to receive a
copy of the grievance procedure, and he believes that the copy of the grievance procedure he finally
• received was thrown together haphazardly since the procedure did not contain a specific outline of the
protocol to file a grievance. He stated he does not personally utilize the Weld County Transportation
Program, as he has alternate transportation; however, he has had experience in being involved with a
class action lawsuit. He indicated he is here to urge the Commissioners to listen to the problems
experienced by residents with access to the transportation program. He further indicated the group
would prefer not to seek legal action, as the group is looking for cooperation; however, if needed, the
group will take whatever steps necessary. He summarized the Commissioners need to take a stand and
get involved in the grievance procedure so that the issues with the lack of transportation may be
resolved.
Sherri Kaspar, Town of Kersey resident, provided various documents for the record, marked Exhibits A
through F, and indicated she is the current Chair of the Weld Advocacy Network on Disabilities (WAND)
group. She stated the group meets once per month, and on March 29, 2007, a forum was held in order
to discuss issues to be resolved. She indicated none of the promises made at the forum have come to
fruition, and explained that Don Coloroso was the Co-Chair of the group last year. She stated a letter
was sent to Commissioner Garcia, as referenced in Exhibit B, which asked specific questions, and the
response received back from Commissioner Garcia, marked Exhibit C, did not answer the questions.
She clarified no issues have been resolved within the past year, and the group has tried to be peaceful.
She indicated she depends on the County transportation program, and she expressed her concerns
regarding her request for transportation being denied. She stated an ambulance was instead
dispatched to her home to transport her to a doctor's appointment for routine laboratory work, and it is
ridiculous for County citizens to be wasting tax dollars in the amount of$1,800.00 on an unnecessary
ambulance ride. She clarified the situation was embarrassing as her neighbors witnessed the situation
and she was loaded onto a stretcher instead of being allowed to ride in her wheelchair. She stated
something must be done about the way the program operates, and if the County continues to refuse
transportation, tax dollars will be wasted for ambulances to be dispatched. Ms. Kaspar clarified the
transportation is now limited to two days a week, Tuesdays and Thursdays; however, she normally has
appointments on Monday afternoons. She stated the exhibits provided clearly indicate that the group is
requesting the Board's help, and if help is not provided, the group will be forced to take drastic means.
• Steve Teets, City of Greeley resident, stated he is present to speak on the difficulties of citizens
obtaining transportation in order to be able to go to medical appointments. He referenced the American
with Disabilities Act (ADA) standards, which require that public transportation be accessible; however,
citizens are not able to obtain adequate transportation when they are informed that only certain days
of the week are permitted. He clarified the schedules within doctor's offices vary, due to patient load,
and a doctor should not have to schedule a patient according the transportation schedule. He further
referenced the ADA standards, which state no entity shall discriminate against individuals with
disabilities, which includes the provision of transportation to individuals with disabilities. He stated
when rides are denied by the County, the individuals with disabilities are denied accessibility, which is
unacceptable. Mr. Teets indicated citizens have been subjected to numerous trip denials, or mis-trips,
late pickups and/or return trips, and trips with excessive trip lengths. He clarified the Transportation
Program is not proving to be a beneficial service, as these problems are happening on a regular basis.
He stated he is requesting that the County fully comply with Medicaid rules and ADA standards, as well
as an accessible grievance process. He clarified he understands that funds are tight for this program;
however, the County should explore other opportunities of funding which are available. He stated all
parties should work together in order to implement a good County bus system, which may include the
possibility of a Regional Transportation Authority (RTA).
Ms. Kasper further stated her physician has sent letters to the County, to specifically request
accommodations. She indicated early morning pickups, around 8:00 a.m., are hampered by the bus
pickup service for the migrant children enrolled in the Head Start Program. She indicated her return
trips are happening way too late, therefore, her doctor has requested that she not wait for a return ride
for more than an hour; however, she has repeatedly waited over eight hours for a return ride. She
expressed her concerns regarding the current grievance procedure, indicating there is no current paper
trail to track complaints. She indicated she understands that the Board cannot take action to fix
transportation problems if they are not notified of the problems which are occurring. She further
indicated citizens cannot bring complaints to the Board if there is no form to fill out. She requested that
a uniform grievance form be created, which can be placed within every County bus, so that complaints
can be recognized.
• Commissioner Long expressed his appreciation to the WAND group for their attendance and for
expressing their concerns. He stated the County has re-evaluated the Transportation Program, and is
now in the process of revamping the system. He indicated he is interested in learning about the issues
which plague the affected citizens, and he would like to meet with members of the group to hear
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additional information. In response to Commissioner Long, Ms. Kaspar indicated the WAND group will
meet on Thursday, April 24, at noon, at Connections for Independent Living. She indicated the
• documents provided may be discussed, and she invited Commissioner Long to attend the meeting.
Commissioner Long indicated he will attend the meeting. Chair Pro-Tem Masden expressed his
appreciation to the members of the group for their attendance, and indicated the Board will work to
move forward to resolve the matter.
CONSENT AGENDA: Commissioner Rademacher moved to approve the consent agenda as printed.
Commissioner Garcia seconded the motion, and it carried unanimously.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
WARRANTS: Barb Connolly, Controller, presented the following warrants for approval by the Board:
All Funds $1,370,472.66
Commissioner Garcia moved to approve the warrants as presented by Ms. Connolly. Commissioner
Long seconded the motion, which carried unanimously.
BIDS:
PRESENT COUNTY NEWSPAPER BID - DEPARTMENT OF FINANCE: Ms. Connolly read the names of the
four vendors that submitted a bid into the record. She stated this bid will be presented for approval on
April 21, 2008.
NEW BUSINESS:
CONSIDER TEMPORARY CLOSURE OF INTERSECTION AT CRS 88 AND 45: Leon Sievers, Department of
Public Works, stated the intersection of County Roads 88 and 45 will be closed for four days, for the
replacement of a drainage culvert. He gave a brief description of the detour route, and indicated water
• will be utilized for dust abatement, if necessary. Commissioner Rademacher moved to approve said
temporary closure. Seconded by Commissioner Long, the motion carried unanimously.
CONSIDER AGREEMENT FOR CONVEYANCE OF EASEMENT, GRANT OF PERMANENT EASEMENT AND
TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS TO CR 2; AND AUTHORIZE CHAIR TO
SIGN ANY NECESSARY DOCUMENTS - PERKINS LAND AND LIVESTOCK III, LLC: Mr. Sievers stated this
is the fifth of twelve parcels to be acquired for the necessary improvements to the County Road 2 Road
Project, being completed in conjunction with Adams County. He indicated the Department is acquiring a
total of 25,893 square feet, or 0.954 acres, of temporary construction easement, within four separate
parcels, for a total amount of$1,188.00, which is ten percent of the land value. He further stated
8,300 square feet of permanent easement will be acquired, in two separate parcels, in the amount of
$1,910.00, which is approximately fifty percent of the land value, therefore the total compensation to
the landowner is in the amount of $3,098.00. Commissioner Garcia moved to approve said agreement
and easements, and authorize the Chair to sign any necessary documents. Seconded by Commissioner
Long, the motion carried unanimously.
CONSIDER TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS TO CR 2 AND AUTHORIZE
CHAIR TO SIGN - ROBERT AND SUZAN LEWIS: Mr. Sievers stated this is the sixth of twelve parcels to
be acquired for the County Road 2 Road Improvements Project, and the parcel is located on the north
side of County Road 2, approximately one-quarter mile east of County Road 39. He stated the
Department will acquire 1,400 square feet of temporary construction easement, in the amount of
$300.00, which is the minimum reimbursement amount. He further stated the Department will also
reimburse the landowner the sum of $112.50 for the cost of replacement of an existing fence,
therefore, the total compensation will equal $412.50. Commissioner Rademacher moved to approve
said easement and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried
unanimously. In response to Chair Pro-Tem Masden, Mr. Sievers indicated Weld County has now
secured half of the necessary easements for the project, which includes a majority of temporary
construction easements; however, two parcels of permanent easement remain to be acquired.
CONSIDER AGREEMENT FOR 2008 BRIDGE EXPANSION JOINT REPAIRS AND AUTHORIZE CHAIR TO
• SIGN - TLM CONSTRUCTORS, INC.: Wayne Howard, Department of Public Works, stated the contract
provides for the annual bridge rehabilitations, and this year the rehabilitation will focus on bridge decks
and expansion joists. He stated five bridges will receive the necessary repairs, the annual budget for
these repairs is $200,000.00, and the contractor will complete the necessary work for $197,302.40. In
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response to Commissioner Rademacher, Mr. Howard stated a handful of bridges are long enough to
contain expansion joints, and staff will repair the ones which need the most amount of work. He further
• stated a couple more bridges may be added to the list in 2009 and 2010. Commissioner Rademacher
moved to approve said agreement and authorize the Chair to sign. Seconded by Commissioner Garcia,
the motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING (KOENIG
PIT): Christopher Woodruff, Assessor, stated each of the three tax abatement petitions are similar in
nature; however, a petition was filed for each pit separately. He stated the petitions are for the 2007
tax year, for correction of production values from 2006, and staff inadvertently placed a taxable
abstract code on each property, therefore, a tax bill was generated. He explained each of the
properties should have been tax exempt, since they are owned and produced by the County, therefore,
the values need to be corrected through the abatement process. He stated the original assessed
valuation for the Koenig Pit was in the amount of$22,410.00, therefore, the recommended abatement
will create a refund in the amount of $1,318.54. In response to Commissioner Rademacher, Mr.
Woodruff indicated he is unsure whether a petition will need to be filed for the Hoekstra Pit, and he
explained how the taxable value on the properties of the three pits were able to roll forward with the
next tax year. He clarified the value will remain; however, the abstract code will now indicate the
property is owned by the County, therefore, a taxable value will not be placed on the property.
Commissioner Rademacher moved to approve said petition, based on staffs recommendation.
Seconded by Commissioner Garcia, the motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING (PIERCE
PIT): Mr. Woodruff indicated this petition is similar to the situation described in the previous item of
business, and the original assessed value was in the amount of$19,970.00, therefore, the
recommended abatement will create a refund in the amount of$1,167.32. Commissioner Long moved
to approve said petition, based on staffs recommendation. Seconded by Commissioner Garcia, the
motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING
(GEISERT PIT): Mr. Woodruff indicated this petition is similar to the situation described in the previous
• two items of business, and the original assessed value was in the amount of $49,030.00, therefore, the
recommended abatement will create a refund in the amount of $3,374.84. Commissioner Garcia moved
to approve said petition, based on staff's recommendation. Seconded by Commissioner Rademacher,
the motion carried unanimously.
CONSIDER APPLICATION FOR A TEMPORARY ASSEMBLY OF MORE THAN 350 PERSONS ON MAY 18,
2008 - FRANK'S RIDE FOR CHILDREN, C/O GREG RISEDORF: Bruce Barker, County Attorney, stated
the Temporary Assembly Permit is being applied for in conjunction with the Special Events Liquor
License in the following item of business. Chair Pro-Tem Masden called up the following item of
business to be discussed concurrently. Greg Risedorf, applicant, stated the 22nd Annual Frank's Ride
for Children fund-raiser, which benefits the Make-A-Wish Foundation of Colorado, Inc., will be held on
May 18, 2008 this year. He stated the event has taken place within Weld County for the past several
years, and explained that the fund-raiser is a well organized motorcycle ride, which has had no
significant problems within past years. He further stated the necessary agencies have been notified of
the event, including the Longmont Emergency Services Unit, Air Life of Denver, Colorado State Patrol,
and the Weld County Sheriff's Office. He stated the event generally draws a large number of riders, all
attendees are given a wristband before they enter the site, according to age, to control the service of
alcohol, and all staff members of the event also act as security guards. In response to Commissioner
Masden, Mr. Risedorf indicated mainly motorcycles participate in the ride; however, the ride is open to
all motorized vehicles. Responding to Commissioner Rademacher, Mr. Risedorf indicated the number of
attendees depends upon the weather conditions; however, he expects approximately 900 to 1,300
attendees this year. Commissioner Garcia moved to approve said application. Seconded by
Commissioner Rademacher, the motion carried unanimously.
CONSIDER APPLICATION FOR A SPECIAL EVENTS PERMIT AND AUTHORIZE CHAIR TO SIGN - MAKE-A-
WISH FOUNDATION OF COLORADO, INC.: Mr. Barker stated due to Statute requirements, this item of
business must be opened to the public in order to obtain public input. No public testimony was
provided regarding the matter. Commissioner Rademacher moved to approve said application and
authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried unanimously.
• CONSIDER APPLICATION FOR SAFETY GRANT AND AUTHORIZE CHAIR TO SIGN: Paul Wood, Sheriff's
Office, stated the application, submitted to the Colorado Department of Transportation, requests grant
funds to administer the Checkpoint Colorado Program. He stated the funds will be utilized to
compensate officers for the overtime hours utilized to provide sobriety checkpoints within the County.
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In response to Chair Pro-Tern Masden, Mr. Wood stated the application is requesting the necessary
funds to complete five checkpoints; however, additional checkpoints will also be completed in
• conjunction with the Weld County DUI Task Force, which includes seven participating agencies.
Responding to Commissioner Rademacher, the grant funds requested from CDOT total $24,900.00, the
matching funds will come from normal operating funds, and the application did not require an equal
matching share. Commissioner Garcia moved to approve said application and authorize the Chair to
sign. Seconded by Commissioner Long, the motion carried unanimously.
CONSIDER APPOINTMENT TO WELD FAITH PARTNERSHIP COUNCIL: Commissioner Rademacher moved
to appoint Michael Stotts to the Weld Faith Partnership Council, with a term to expire November 1,
2008. Seconded by Commissioner Garcia, the motion carried unanimously.
PLANNING:
CONSIDER ACKNOWLEDGMENT OF RECEIPT OF PAYMENT IN FULFILLMENT OF OBLIGATION FOR
IMPROVEMENTS FOR COUNTY ROAD 80 STABILIZATION AND DUST CONTROL, FOR AN EIGHT (8) LOT
MINOR SUBDIVISION, MF #1001 - W.B. FARMS ESTATES, LLC: Don Carroll, Department of Public
Works, stated the applicant has fulfilled the obligation to provide improvements to County Road 80. He
stated the agreement was for a period of five years, and stated that as each lot was sold, money would
be placed into escrow, up to a total of $14,500.00. He further stated this development created 25
percent of the traffic impact along this road, therefore, the road was stabilized, and the applicant has
fulfilled its obligation. He indicated the site is located three miles west of the Town of Ault, and one
mile south of State Highway 14. Commissioner Rademacher moved to approve acknowledgment of
receipt of payment. Seconded by Commissioner Garcia, the motion carried unanimously.
CONSIDER SETTING AMENDED HEARING DATE, SETTING OF BRIEFING SCHEDULE, AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION DENIAL OF USE BY SPECIAL
REVIEW #1629 FOR A MAJOR FACILITY OF A PUBLIC UTILITY OR PUBLIC AGENCY: Mr. Barker stated a
hearing regarding the application for Use by Special Review (USR) Permit #1629 was held on January
15, 2008, and the application is requesting the placement of a transmission facility. He clarified the
• application was not considered pursuant to 1041 Regulations, therefore, the matter does not come
before the Board of County Commissioners. He further clarified the application was considered as a
Major Facility of a Public Utility, which the Planning Commission has complete review of, and the
Planning Commission voted to deny the permit. He indicated United Power, Inc., the applicant, has the
right to appeal the decision of any lesser commission or board to the Board of County Commissioners,
pursuant to Section 2-4-10 of the Weld County Code. He stated Exhibit A includes a copy of the
reference for Section 2-4-10. Mr. Barker stated a hearing schedule was set up on March 24, 2008, in
order to consider the appeal of United Power. He clarified a copy of the transcript from the Planning
Commission meeting has been ordered, for the Board to review, and to certify the record for the
appellant and those wishing to protest the appeal. He stated the original hearing date was set for April
23, 2008; however, the processing of the transcript has taken longer than expected, and it will not be
completed until April 25, 2008. He further stated after discussions with the affected parties, a modified
schedule was created, and the hearing date of April 23, 2008 shall be vacated and rescheduled for May
14, 2008. He stated United Power will provide a brief, then any interested parties may provide a
response to the brief, and United Power will reply to the responses, if the company chooses to do so.
Mr. Barker stated questions have been raised regarding the criteria for review, and the third page of
Exhibit A does not provide a standard of review, therefore, there has been debate between the parties
regarding the standard for review. He recommended the appeal brought before the Board be treated in
the same manner as a Rule 106 Hearing, similar to land use hearings denied by the Board which may
be appealed to the District Court. He indicated the Board must consider whether the Planning
Commission has exceeded its jurisdiction or abused its discretion in denying the permit for USR #1629.
He stated Mark Meyer, representing United Power, provided an e-mail, contained within Exhibit A,
which included the suggested language for the appeal criteria to be incorporated into the Resolution,
which he reviewed for the record. Mr. Barker summarized the Board may consider the appeal through
the Rule 106 Hearing, determining whether the Planning Commission exceeded its jurisdiction or
abused its discretion, or, as suggested by United Power, that the Planning Commission met its burden
of proof contained with the previous section references. He stated he reviewed the Weld County Code
to determine other instances of appeals, and two types of appeals were found, including a Grievance
Hearing for employee discipline, as detailed in Chapter 3, and the appeal of Road Impact Fees, as
• detailed in Chapter 20. He clarified the Board is the appellate body for grievance procedures, which is
similar to the standards for Rule 106 Hearings. He further clarified the appeal process within Chapter
20 details the appeal of the decision made by the Director of the Department of Public Works, and the
Board must make written findings of fact and conclusions of law, according to the same standards of
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the decision maker.
• Mr. Barker indicated his belief is that this type of appeal shall be handled similar to a grievance
hearing, since the decision was made by a lesser Commission, and public testimony was considered,
which is different than the situation for an appeal of a Road Impact Fee. He clarified grievance hearings
do not require a public hearing; however, the appeal does come before a board appointed by the Board
of County Commissioners to make a decision. He indicated it is more appropriate to determine if the
Planning Commission exceeded its jurisdiction or abused its discretion. He stated he received an e-mail
from Cynthia Treadwell, marked Exhibit B, which contained a suggested modification to the Resolution
language; however, he recommended that the language within the Resolution remain as presented.
In response to Chair Pro-Tem Masden, Mr. Barker indicated the Board will not receive additional
testimony or evidence at the hearing; however, the Board will review the previous record of the
Planning Commission, which is similar to a Rule 106 Hearing. Responding to Commissioner
Rademacher, Mr. Barker clarified the Board will only hear oral arguments from the attorney
representing United Power, and the attorney representing the Homeowners' Association of the
surrounding property owners, only regarding the decision made by the Planning Commission. He
further clarified additional evidence and testimony will not be presented within the hearing.
Commissioner Garcia clarified that within the hearing now proposed for May 14, 2008, the Board will
not consider each fact as the Planning Commission did at the hearing on January 15, 2008; rather, the
Board will need to determine whether the Planning Commission was clearly wrong in the decision, or if
the Planning Commission exceeded its jurisdiction. He clarified the Board will not be in a position to
second-guess the facts; however, the Board will need to second-guess the action of the Planning
Commission. In response to Commissioner Rademacher, Commissioner Garcia indicated the Board will
either affirm the decision of the Planning Commission, or remand the decision, which means the matter
will be sent back to the Planning Commission with directions to correct certain mistakes. Further
responding to Commissioner Rademacher, Mr. Barker indicated if the permit is denied again by the
Planning Commission, after the remand, the denial will stand. He clarified State statute allows for the
process of an appeal to the Public Utilities Commission (PUC), therefore, United Power may enact their
right to initiate an appeal to the PUC. In response to Chair Pro-Tem Masden, Mr. Barker confirmed that
if the Board approves the appeal, the matter will be sent back to the Planning Commission with written
directions for further testimony and considerations. No public testimony was provided regarding the
• matter. Responding to Commissioner Rademacher, Mr. Barker recommended the Board approve the
Resolution setting the hearing date and briefing schedule, as presented, without the modifications
suggested by the e-mails submitted by Mr. Meyer or Ms. Treadwell. Commissioner Rademacher moved
to approve the Resolution to set an amended hearing date and briefing schedule, and to establish the
criteria for the appeal of Use by Special Review Permit #1629. Seconded by Commissioner Garcia, the
motion carried unanimously.
SECOND READING OF ORDINANCE #2008-2, IN THE MATTER OF REPEALING AND REENACTING, WITH
AMENDMENTS, CHAPTER 29 BUILDING REGULATIONS, OF THE WELD COUNTY CODE: Commissioner
Rademacher moved to read said Ordinance by title only. Seconded by Commissioner Garcia, the
motion carried unanimously. Mr. Barker read said title into the record. Roger Vigil, Department of
Building Inspection, stated one modification was made within Section 29-3-70, as a result of the
discussion within the most recent work session. He indicated the first sentence of Section 29-3-70.6.3
shall state, "Mechanical systems and equipment serving the building, heating, cooling, or ventilation
needs shall comply with Section 403 of the International Energy Conservation Code, except sizing as
required by Section 403.6." He clarified no other changes have been proposed after the approval of the
first reading. Commissioner Garcia moved to approve the second reading of Ordinance #2008-2.
Seconded by Commissioner Rademacher, the motion carried unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
consent agenda. Ordinance #2008-2 was approved on second reading.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully
submitted by the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 10:10 a.m.
BOARD OF COUNTY COMMISSIONERS
• WELD COUNTY, COLORADO
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•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO Case Number: USR-1629
w
Respondents: Centex Homes
Liberty Ranch Homeowners Association, Inc.
MOTION TO STRIKE ALL NEW EVIDENCE SUBMITTED
BY APPLICANT ON APPEAL THAT IS NOT PART OF
THE ORIGINAL PLANNING COMMISSION RECORD
Respondents Centex Homes and Liberty Ranch Homeowners Association, Inc.
("Respondents") by their attorneys, hereby submit their Motion To Strike All New Evidence
• Submitted By Applicant On Appeal That Is Not Part Of The Original Planning Commission
Record, as follows:
I.
GENERAL OBJECTION TO JURISDICTION
Subject to and without waiving their objections to jurisdiction as set forth in Sections II
and III of their Response To Amended Complaint, Respondents move to strike from these
proceedings all new evidence and argument submitted by applicant A. Dale Slater Trust
B/United Power Company ("United Power") on appeal that was not part of the original January
15, 2008 Weld County Planning Commission Record.
II.
THE APRIL 21, 2008 RESOLUTION AND NOTICE OF HEARING
Notice of hearing in this matter was issued on April 21, 2008 in a Resolution of the Weld
County Board of County Commissioners attached hereto as Exhibit A ("Resolution"). This
• Resolution established the hearing procedure for the appeal of the January 15, 2008 denial by the
Weld County Planning Commission of Application #1629 submitted by A. Dale Slater Trust
B/United Power Company seeking Site Specific Development Plan and Use By Special Review
for a Major Facility of a Public Utility or Public Agency. The Resolution also specifically set
forth the standard of review for the appeal proceedings before the Board of County
Commissioners ("Board") as follows:
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to
determine whether or not it should grant the appeal is whether the Planning
Commission exceeded its jurisdiction or abused its discretion in denying the Site
Specific Development Plan And Use By Special Review Permit #1629 for a
Major Facility of a Public Utility or Public Agency (electrical substation), subject
to the provisions of Section 23-4-420, in the A (Agricultural) Zone District for A.
Dale Slater Trust B/United Power.
See Exhibit A at p. 2.
• III.
THE ESTABLISHED STANDARD OF REVIEW BARS ANY NEW EVIDENCE OR
ARGUMENT NOT CONTAINED IN THE ORIGINAL RECORD BEFORE THE
PLANNING COMMISSION JANUARY 15, 2008
A. The Guidance Of C.R.C.P. 106(a)(4)
The standard of review set forth in the April 21, 2008 Resolution above is essentially that
set forth in Colorado Rules of Civil Procedure Rule I06(a)(4). For this reason, the provisions
and interpretive principles applicable to appeal of a final land use determination to a District
Court under C.R.C.P. 106(a)(4) are instructive here.
C.R.C.P. 106(a)(4) permits a right of action to an aggrieved party where "any
governmental body or officer or any lower judicial body exercising judicial or quasi judicial
functions' has exceeded its jurisdiction or abused its discretion and there is no plain, speedy and
adequate remedy otherwise provided by law." C.R.C.P. 106(a)(4). It is well-established that,
under C.R.C.P. 106(a)(4), court review is strictly limited to "a determination of whether the
It is undisputed that the action in this case was quasi-judicial in nature.
2
•
governmental body or officer has exceeded its jurisdiction or abused its discretion, based on the
evidence before the defendant body or officer." C.R.C.P. 106(a)(4)(I). The scope of this review
under this rule is strictly limited. City of Colorado Springs v. Dist. Court, 184 Colo. 177, 179,
519 P.2d 325, 326 (1974).
Under C.R.C.P. 106(a)(4), a court cannot consider whether the decision of the
governmental body was right or wrong, re-weigh the evidence before the governmental body,
substitute its own judgment for that of the governmental body, take or require additional
evidence to "supplement" or "clarify" the record below or otherwise supplant the findings and
decision of the governmental body. See, e.g., Bd. Of County Comm'rs of Routt County v.
O'Dell, 920 P.2d 48, 50 (Colo. 1996) (re-weighing evidence improper under C.R.C.P.
106(a)(4)); Garland v. Bd. of County Comm'rs, 660 P.2d 20, 22-23 (Colo. App. 1982)(remand or
supplementation of record inappropriate under this rule); City of Colorado Springs v. Dist. Court,
184 Colo. 177, 180, 519 P.2d 325, 327 (1974) (grant of discovery by reviewing court in
106(a)(4) action was improper); Toland v. Strohl, 147 Colo. 577, 583, 364 P.2d 588, 593
(1961)(taking testimony and resolution of disputed issues of fact inappropriate on review of
governmental action); Civil Service Comm'n v. Hazlett, 119 Colo. 173, 178, 201 P.2d 616, 620
(1948) (court cannot consider whether governmental action was right or wrong, substitute its
judgment for that of the governmental body or otherwise interfere with the findings and decision
of the governmental body supported by the evidence).
C.R.C.P. 106(a)(4) empowers a court to review the record of the proceedings conducted
below and to determine whether the government official or entity exceeded its authority or
abused its discretion. Widder v. Durango School Dist. No. 9-R, 85 P.3d 518, 526-27 (Colo.
2004). The decision of a governmental body is considered "an abuse of discretion" only if there
is no competent evidence to support the decision, i.e., "there is an absence of evidence in the
record to support the ultimate decision of the governmental or administrative body and hence the
decision can only be explained as an arbitrary and capricious exercise of authority." Van Sickle
v. Bones, 797 P.2d 1267, 1272 (Colo. 1990); McCann v. Lettig, 928 P.2d 816, 817 (Colo. App.
1996). However, governmental decisions must be affirmed if there is ay competent evidence in
•
3
the record to support the action taken. Bauer v. City of Wheat Ridge, 182 Colo. 324, 327, 513
P.2d 203, 204 (1973).
B. The Board Established Procedure For A "Rule 106-Type" Hearing In This
Matter
A review of the minutes and commentary from the meeting of the Board of County
Commissioners adopting the April 21, 2008 Resolution clearly confirms the intent of the Board
to adhere to the C.R.C.P. 106(a)(4) standard. A copy of those minutes as currently available on
the website for Weld County government is attached hereto as Exhibit B.
Specifically, it is clear from the discussion concerning the Resolution that no new
evidence, testimony or argument would be permitted beyond a brief oral argument by counsel
for United Power and Centex. The minutes state, in pertinent part:
CONSIDER SETTING AMENDED HEARING DATE, SETTING OF
BRIEFING SCHEDULE, AND ESTABLISHMENT OF CRITERIA FOR
APPEAL OF PLANNING COMMISSION DENIAL OF USE BY SPECIAL
• REVIEW #1629 FOR A MAJOR FACILITY OF A PUBLIC UTILITY OR
PUBLIC AGENCY:
In response to Chair Pro-Tem Masden, Mr. Barker indicated the Board will not
receive additional testimony or evidence at the hearing; however, the Board will
review the previous record of the Planning Commission, which is similar to a
Rule 106 Hearing. Responding to Commissioner Rademacher, Mr. Barker
clarified the Board will only hear oral arguments from the attorney
representing United Power, and the attorney representing the Homeowners'
Association of the surrounding property owners, only regarding the decision
made by the Planning Commission. He further clarified additional evidence and
testimony will not be presented within the hearing. Commissioner Garcia clarified
that within the hearing now proposed for May 14, 2008, the Board will not
consider each fact as the Planning Commission did at the hearing on January 15,
2008; rather, the Board will need to determine whether the Planning Commission
was clearly wrong in the decision, or if the Planning Commission exceeded its
jurisdiction. He clarified the Board will not be in a position to second-guess the
facts; however, the Board will need to second-guess the action of the Planning
Commission. In response to Commissioner Rademacher, Commissioner Garcia
indicated the Board will either affirm the decision of the Planning Commission, or
• remand the decision, which means the matter will be sent back to the Planning
4
•
Commission with directions to correct certain mistakes. Further responding to
Commissioner Rademacher, Mr. Barker indicated if the permit is denied again by
the Planning Commission, after the remand, the denial will stand.
See Exhibit B (emphasis added).
As a result, all new evidence and argument submitted by United Power attached to and/or
referenced within its Amended Complaint To Weld County Commissioners ("Amended
Complaint") must be stricken from the record of these proceedings and cannot be considered by
the Weld County Board of County Commissioners as part of the current appeal.
IV.
ALL NEW EVIDENCE SUBMITTED BY UNITED POWER THAT IS NOT PART OF
THE ORIGINAL PLANNING COMMISSION RECORD MUST BE STRICKEN AND
CANNOT BE CONSIDERED BY THE BOARD
The Record in this matter was certified by the Weld County Planning Commission in the
Inventory Of Items For Consideration ("Inventory") attached hereto as Exhibit C. This
• inventory of items, which identifies all documents and materials presented to the Weld County
Planning Commission either at or before the January 15, 2008 final hearing, certifies the official
Record for purposes of this appeal. Together with the transcript of the January 15, 2008 hearing
before the Weld County Planning Commission, the documents in Exhibit C are the full and
complete Record of the original proceedings. Any evidence or documentation that does not
appear on the Inventory cannot be considered by the Board as part of the current appeal.
Accordingly, evidence and information that must be stricken includes:
1. United Power's March 14, 2008 letter requesting reconsideration of the January 15,
2008 final determination of the Weld County Planning Commission;
2. The Summary attached to the March 14, 2008 United Power letter;
3. The Parcel Selections Map attached to the March 14, 2008 United Power letter;
4. Exhibit C to United Power's Amended Complaint (Area Map);
5. Exhibit D to United Power's Amended Complaint (Affidavit of Donald W.
• McDaniel, P.E. with all attachments);
5
•
6. Exhibit E to United Power's Amended Complaint (Affidavit of Nancy I. Slater);
7. Exhibit E to United Power's Amended Complaint(Affidavit of Ernest M. Kiteley);
8. Exhibit E to United Power's Amended Complaint (Affidavit of Midwest Heritage Inn
of Visalia, Inc.);
9. Exhibit E to United Power's Amended Complaint (Affidavit of Myra Jane Silengo);
10. Exhibit E to United Power's Amended Complaint(Affidavit of Jerry Hergenreder);
11. Exhibit F to United Power's Amended Complaint (Affidavit of Stanley F. Sessions);
12. Exhibit G to United Power's Amended Complaint (Corridor Photos);
13. Exhibit H to United Power's Amended Complaint (Affidavit of Jason S. Maxey);
14. Exhibit Ito United Power's Amended Complaint (Additional Photos);
• 15. Exhibit J to United Power's Amended Complaint (Affidavit of Robert L. Pearson,
Ph.D, P.E.); and
16. Exhibit K to United Power's Amended Complaint (Parcel Selection Map).
Respondents respectfully request that all of the foregoing items be stricken from the
Record in these proceedings and disallowed for consideration by the Board pursuant to the
current appeal.
V.
ALL ARGUMENTS PREMISED UPON IMPERMISSIBLE NEW EVIDENCE
SUBMITTED BY UNITED POWER ON APPEAL MUST ALSO BE STRICKEN FROM
THE AMENDED COMPLAINT AND CANNOT BE CONSIDERED BY THE BOARD
The vast majority of United Power's Amended Complaint and appeal is premised upon
impermissible new evidence that was not part of the original Record of the Weld County
Planning Commission from the January 15, 2008 denial of the Application. As a result, this
additional information and argument similarly cannot be considered by the Board of County
Commissioners as part of the current appeal.
•
6
•
Respondents further request that all portions of United Power's Amended Complaint
referring or relating to, or premised in any way upon, any of the impermissible new evidence
identified herein be stricken from the record in these proceedings and disallowed for
consideration by the Board pursuant to the current appeal. A copy of the Amended Complaint
with all such content redacted is attached hereto as Exhibit D. Respondents request that the
Board's consideration be limited solely to the content of the Amended Complaint as redacted.
Dated this 13`h day of May, 2008
FOSTER GRAHAM MILSTEIN MILLER
„& CALISHE , T%LP
avid . Foster 27 83)
Cynthia . Treadwell (No. 28868)
• 621 17`h treet, Suite 1900
Denver, Colorado 80293
Telephone: (303) 333-9810
Facsimile: (303) 333-9786
Attorneys for Respondents Centex Homes and
Liberty Ranch Homeowners Association, Inc.
•
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•
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 13th day of May, 2008, a true and correct
copy of the foregoing MOTION TO STRIKE ALL NEW EVIDENCE SUBMITTED BY
APPLICANT ON APPEAL THAT WAS NOT PART OF THE ORIGINAL PLANNING
COMMISSION RECORD was served by hand-delivery and sent via United States Mail, First
Class postage prepaid, as follows:
Weld County Board of County Commissioners
Clerk of the Board's Office
Attn: Esther E. Gesik
915 10th Street, 3rd Floor
Centennial Center
Greeley, Colorado 80631
Bruce T. Barker, Esq.
Weld County Attorney's Office
915 Tenth Street
P.O. Box 758
• Greeley, Colorado 80632
Richard K. Clark, Esq.
Mark A. Meyer, Esq.
Rothegerber, Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
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EXHIBIT A
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RESOLUTION
RE: AMEND SETTING OF HEARING DATE, SETTING OF BRIEFING SCHEDULE, AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION
DENIAL OF USE BY SPECIAL REVIEW#1629 FOR A MAJOR FACILITY OF A
PUBLIC UTILITY OR PUBLIC AGENCY
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on January 15, 2008, in accordance with Chapter 23 of the Weld County
Code, the Weld County Planning Commission voted to deny the application of A. Dale Slater
Trust B, Attn: Nancy Slater, 13433 County Road 7, Longmont, Colorado 80504 / United Power,
Inc., 500 Cooperative Way, P.O. Box 929, Brighton, Colorado 80603, for a Site Specific
Development Plan and Use by Special Review Permit #1629 for a Major Facility of a Public
Utility or Public Agency (electrical substation), subject to the provisions of Section 23-4-420, in
the A (Agricultural) Zone District, and
• WHEREAS, on March 14, 2008, United Power submitted an appeal of the Planning
Commission's findings, pursuant to Section 2-4-10 of the Weld County Code, and
WHEREAS, by and through Resolution 2008-0914, the Board set a public hearing on
April 23, 2008, at 9:00 a.m., for the purpose of taking oral argument and considering said
appeal, with an accompanying briefing schedule, and
WHEREAS, the completion of the transcription of proceedings before the Planning
Commission on January 15, 2008, has been delayed and, as a result, the hearing date and
briefing schedule set in Resolution 2008-0914 must be modified, and
WHEREAS, the Board of County Commissioners now deems it advisable to amend its
hearing setting and briefing schedule, and to establish the criteria for the appeal so as to assist
the parties in their briefing and preparation for said hearing.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that a public hearing to take oral argument and to consider the appeal
of the Planning Commission's denial of a Site Specific Development Plan and Use by Special
Review Permit #1629 for a Major Facility of a Public Utility or Public Agency (electrical
substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone District,
for A. Dale Slater Trust B / United Power, be, and hereby is, scheduled for May 14, 2008, at
9:00 a.m., and that the hearing originally set for April 23, 2008, be, and hereby is, vacated.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to obtain a transcript of the proceedings before the Planning Commission on January
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15, 2008, and to include it in a complete record of the case being certified by the Clerk no later
than April 25, 2008.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send a copy of the complete certified record of the case to persons who request a
copy of the same and to the Board for its review.
BE IT FURTHER RESOLVED by the Board that the Clerk to the Board be, and hereby
is, ordered to send notice of said May 14, 2008, hearing to those persons who previously
received notice of the January 15, 2008, Planning Commission hearing.
BE IT FURTHER RESOLVED by the Board that United Power shall have to and until to
April 30, 2008, in which to file its brief in the appeal; any persons wish to respond in writing to
the United Power brief shall then have to and until May 6, 2008, to file such response; and
United Powershall then have to and until May 9, 2008, in which to file a reply to any responses
thus filed.
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to determine
whether or not it should grant the appeal shall be whether the Planning Commission exceeded
its jurisdiction or abused its discretion in denying the Site Specific Development Plan and Use
by Special Review Permit #1629 for a Major Facility of a Public Utility or Public Agency
(electrical substation), subject to the provisions of Section 23-4-420, in the A (Agricultural) Zone
• District, for A. Dale Slater Trust B / United Power.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of April, A.D., 2008.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
William H. Jerke, Chair
Weld County Clerk to the Board
Robert D. Masden, Pro-Tem
BY:
Deputy Clerk to the Board
William F. Garcia
APPROVED AS TO FORM:
David E. Long
County Attorney
Douglas Rademacher
Date of signature:
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EXHIBIT B
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Home > Departments Clerk to the Board > Meetings & Minutes > Minutes
Weld County - Minutes
Board of Commissioners
Record of Proceedings
APRIL 21 , 2008
The Board of County Commissioners of Weld County, Colorado, met in regular session in full conformity
with the laws of the State of Colorado at the regular place of meeting in the Weld County Centennial
Center, Greeley, Colorado, April 21 , 2008, at the hour of 9:00 a.m.
ROLL CALL: The meeting was called to order by the Chair Pro-Tem and on roll call the following
members were present, constituting a quorum of the members thereof:
Commissioner William H. Jerke, Chair - EXCUSED
Commissioner Robert D. Masden, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
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Commissioner Douglas Rademacher
Also present:
County Attorney, Bruce T. Barker
Acting Clerk to the Board, Jennifer VanEgdom
Controller, Barb Connolly
MINUTES: Commissioner Garcia moved to approve the minutes of the Board of County Commissioners
meeting of April 16 , 2008, as printed. Commissioner Rademacher seconded the motion, and it carried
unanimously.
CERTIFICATION OF HEARINGS: Commissioner Rademacher moved to approve the Certification of
Hearings conducted on April 16 , 2008, as follows: 1) USR #1644 - Jack and Vicki Pierson; and
2) USR #1642 - Lucerne Commons, LLC. Commissioner Long seconded the motion, which carried
unanimously.
AMENDMENTS TO AGENDA: There were no amendments to the agenda.
PUBLIC INPUT: Brad Taylor, City of Greeley resident, stated he is member of the Weld Advocacy
Network on Disabilities, which is a group of individuals dedicated to disability and advocacy issues. He
stated the group previously questioned the grievance procedure for the Weld County Transportation
Program, specifically regarding transportation needs for those with disabilities. He further stated
approximately one year ago, a large group of individuals met with Walk Speckman, Director,
Department of Human Services, to discuss the transportation program, and he attended the meeting
• as an advocate. Mr. Taylor stated during the meeting, it was apparent to him that a solution needed to
be found so that disabled citizens could access the transportation program in order to receive the rides
they need. He indicated he inquired about a grievance procedure, and Mr. Speckman and
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Commissioner Garcia confirmed that one existed. He stated the group waited a long time to receive a
copy of the grievance procedure, and he believes that the copy of the grievance procedure he finally
received was thrown together haphazardly since the procedure did not contain a specific outline of the
• protocol to file a grievance. He stated he does not personally utilize the Weld County Transportation
Program, as he has alternate transportation; however, he has had experience in being involved with a
class action lawsuit. He indicated he is here to urge the Commissioners to listen to the problems
experienced by residents with access to the transportation program. He further indicated the group
would prefer not to seek legal action, as the group is looking for cooperation; however, if needed, the
group will take whatever steps necessary. He summarized the Commissioners need to take a stand and
get involved in the grievance procedure so that the issues with the lack of transportation may be
resolved.
Sherri Kaspar, Town of Kersey resident, provided various documents for the record, marked Exhibits A
through F, and indicated she is the current Chair of the Weld Advocacy Network on Disabilities (WAND)
group. She stated the group meets once per month, and on March 29, 2007, a forum was held in order
to discuss issues to be resolved. She indicated none of the promises made at the forum have come to
fruition, and explained that Don Coloroso was the Co-Chair of the group last year. She stated a letter
was sent to Commissioner Garcia, as referenced in Exhibit B, which asked specific questions, and the
response received back from Commissioner Garcia, marked Exhibit C, did not answer the questions.
She clarified no issues have been resolved within the past year, and the group has tried to be peaceful.
She indicated she depends on the County transportation program, and she expressed her concerns
regarding her request for transportation being denied. She stated an ambulance was instead
dispatched to her home to transport her to a doctor's appointment for routine laboratory work, and it is
ridiculous for County citizens to be wasting tax dollars in the amount of $1,800.00 on an unnecessary
ambulance ride. She clarified the situation was embarrassing as her neighbors witnessed the situation
and she was loaded onto a stretcher instead of being allowed to ride in her wheelchair. She stated
something must be done about the way the program operates, and if the County continues to refuse
transportation, tax dollars will be wasted for ambulances to be dispatched. Ms. Kaspar clarified the
transportation is now limited to two days a week, Tuesdays and Thursdays; however, she normally has
appointments on Monday afternoons. She stated the exhibits provided clearly indicate that the group is
requesting the Board's help, and if help is not provided, the group will be forced to take drastic means.
• Steve Teets, City of Greeley resident, stated he is present to speak on the difficulties of citizens
obtaining transportation in order to be able to go to medical appointments. He referenced the American
with Disabilities Act (ADA) standards, which require that public transportation be accessible; however,
citizens are not able to obtain adequate transportation when they are informed that only certain days
of the week are permitted. He clarified the schedules within doctor's offices vary, due to patient load,
and a doctor should not have to schedule a patient according the transportation schedule. He further
referenced the ADA standards, which state no entity shall discriminate against individuals with
disabilities, which includes the provision of transportation to individuals with disabilities. He stated
when rides are denied by the County, the individuals with disabilities are denied accessibility, which is
unacceptable. Mr. Teets indicated citizens have been subjected to numerous trip denials, or mis-trips,
late pickups and/or return trips, and trips with excessive trip lengths. He clarified the Transportation
Program is not proving to be a beneficial service, as these problems are happening on a regular basis.
He stated he is requesting that the County fully comply with Medicaid rules and ADA standards, as well
as an accessible grievance process. He clarified he understands that funds are tight for this program;
however, the County should explore other opportunities of funding which are available. He stated all
parties should work together in order to implement a good County bus system, which may include the
possibility of a Regional Transportation Authority (RTA).
Ms. Kaspar further stated her physician has sent letters to the County, to specifically request
accommodations. She indicated early morning pickups, around 8:00 a.m., are hampered by the bus
pickup service for the migrant children enrolled in the Head Start Program. She indicated her return
trips are happening way too late, therefore, her doctor has requested that she not wait for a return ride
for more than an hour; however, she has repeatedly waited over eight hours for a return ride. She
expressed her concerns regarding the current grievance procedure, indicating there is no current paper
trail to track complaints. She indicated she understands that the Board cannot take action to fix
transportation problems if they are not notified of the problems which are occurring. She further
indicated citizens cannot bring complaints to the Board if there is no form to fill out. She requested that
a uniform grievance form be created, which can be placed within every County bus, so that complaints
can be recognized.
• Commissioner Long expressed his appreciation to the WAND group for their attendance and for
expressing their concerns. He stated the County has re-evaluated the Transportation Program, and is
now in the process of revamping the system. He indicated he is interested in learning about the issues
which plague the affected citizens, and he would like to meet with members of the group to hear
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additional information. In response to Commissioner Long, Ms. Kaspar indicated the WAND group will
meet on Thursday, April 24, at noon, at Connections for Independent Living. She indicated the
documents provided may be discussed, and she invited Commissioner Long to attend the meeting.
• Commissioner Long indicated he will attend the meeting. Chair Pro-Tem Masden expressed his
appreciation to the members of the group for their attendance, and indicated the Board will work to
move forward to resolve the matter.
CONSENT AGENDA: Commissioner Rademacher moved to approve the consent agenda as printed.
Commissioner Garcia seconded the motion, and it carried unanimously.
COMMISSIONER COORDINATOR REPORTS: There were no Commissioner Coordinator Reports.
WARRANTS: Barb Connolly, Controller, presented the following warrants for approval by the Board:
All Funds $1,370,472.66
Commissioner Garcia moved to approve the warrants as presented by Ms. Connolly. Commissioner
Long seconded the motion, which carried unanimously.
BIDS:
PRESENT COUNTY NEWSPAPER BID - DEPARTMENT OF FINANCE: Ms. Connolly read the names of the
four vendors that submitted a bid into the record. She stated this bid will be presented for approval on
April 21, 2008.
NEW BUSINESS:
CONSIDER TEMPORARY CLOSURE OF INTERSECTION AT CRS 88 AND 45: Leon Sievers, Department of
Public Works, stated the intersection of County Roads 88 and 45 will be closed for four days, for the
replacement of a drainage culvert. He gave a brief description of the detour route, and indicated water
will be utilized for dust abatement, if necessary. Commissioner Rademacher moved to approve said
• temporary closure. Seconded by Commissioner Long, the motion carried unanimously.
CONSIDER AGREEMENT FOR CONVEYANCE OF EASEMENT, GRANT OF PERMANENT EASEMENT AND
TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS TO CR 2; AND AUTHORIZE CHAIR TO
SIGN ANY NECESSARY DOCUMENTS - PERKINS LAND AND LIVESTOCK III, LLC: Mr. Sievers stated this
is the fifth of twelve parcels to be acquired for the necessary improvements to the County Road 2 Road
Project, being completed in conjunction with Adams County. He indicated the Department is acquiring a
total of 25,893 square feet, or 0.954 acres, of temporary construction easement, within four separate
parcels, for a total amount of$1,188.00, which is ten percent of the land value. He further stated
8,300 square feet of permanent easement will be acquired, in two separate parcels, in the amount of
$1,910.00, which is approximately fifty percent of the land value, therefore the total compensation to
the landowner is in the amount of $3,098.00. Commissioner Garcia moved to approve said agreement
and easements, and authorize the Chair to sign any necessary documents. Seconded by Commissioner
Long, the motion carried unanimously.
CONSIDER TEMPORARY CONSTRUCTION EASEMENT FOR IMPROVEMENTS TO CR 2 AND AUTHORIZE
CHAIR TO SIGN - ROBERT AND SUZAN LEWIS: Mr. Sievers stated this is the sixth of twelve parcels to
be acquired for the County Road 2 Road Improvements Project, and the parcel is located on the north
side of County Road 2, approximately one-quarter mile east of County Road 39. He stated the
Department will acquire 1,400 square feet of temporary construction easement, in the amount of
$300.00, which is the minimum reimbursement amount. He further stated the Department will also
reimburse the landowner the sum of $112.50 for the cost of replacement of an existing fence,
therefore, the total compensation will equal $412.50. Commissioner Rademacher moved to approve
said easement and authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried
unanimously. In response to Chair Pro-Tem Masden, Mr. Sievers indicated Weld County has now
secured half of the necessary easements for the project, which includes a majority of temporary
construction easements; however, two parcels of permanent easement remain to be acquired.
CONSIDER AGREEMENT FOR 2006 BRIDGE EXPANSION JOINT REPAIRS AND AUTHORIZE CHAIR TO
• SIGN - TLM CONSTRUCTORS, INC.: Wayne Howard, Department of Public Works, stated the contract
provides for the annual bridge rehabilitations, and this year the rehabilitation will focus on bridge decks
and expansion joists. He stated five bridges will receive the necessary repairs, the annual budget for
these repairs is $200,000.00, and the contractor will complete the necessary work for $197,302.40. In
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response to Commissioner Rademacher, Mr. Howard stated a handful of bridges are long enough to
contain expansion joints, and staff will repair the ones which need the most amount of work. He further
stated a couple more bridges may be added to the list in 2009 and 2010. Commissioner Rademacher
• moved to approve said agreement and authorize the Chair to sign. Seconded by Commissioner Garcia,
the motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING (KOENIG
PIT): Christopher Woodruff, Assessor, stated each of the three tax abatement petitions are similar in
nature; however, a petition was filed for each pit separately. He stated the petitions are for the 2007
tax year, for correction of production values from 2006, and staff inadvertently placed a taxable
abstract code on each property, therefore, a tax bill was generated. He explained each of the
properties should have been tax exempt, since they are owned and produced by the County, therefore,
the values need to be corrected through the abatement process. He stated the original assessed
valuation for the Koenig Pit was in the amount of $22,410.00, therefore, the recommended abatement
will create a refund in the amount of$1,318.54. In response to Commissioner Rademacher, Mr.
Woodruff indicated he is unsure whether a petition will need to be filed for the Hoekstra Pit, and he
explained how the taxable value on the properties of the three pits were able to roll forward with the
next tax year. He clarified the value will remain; however, the abstract code will now indicate the
property is owned by the County, therefore, a taxable value will not be placed on the property.
Commissioner Rademacher moved to approve said petition, based on staffs recommendation.
Seconded by Commissioner Garcia, the motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING (PIERCE
PIT): Mr. Woodruff indicated this petition is similar to the situation described in the previous item of
business, and the original assessed value was in the amount of$19,970.00, therefore, the
recommended abatement will create a refund in the amount of $1,167.32. Commissioner Long moved
to approve said petition, based on staffs recommendation. Seconded by Commissioner Garcia, the
motion carried unanimously.
CONSIDER PETITION FOR ABATEMENT OR REFUND OF TAXES - WELD COUNTY ENGINEERING
(GEISERT PIT): Mr. Woodruff indicated this petition is similar to the situation described in the previous
two items of business, and the original assessed value was in the amount of $49,030.00, therefore, the
• recommended abatement will create a refund in the amount of $3,374.84. Commissioner Garcia moved
to approve said petition, based on staffs recommendation. Seconded by Commissioner Rademacher,
the motion carried unanimously.
CONSIDER APPLICATION FOR A TEMPORARY ASSEMBLY OF MORE THAN 350 PERSONS ON MAY 18,
2008 - FRANK'S RIDE FOR CHILDREN, C/O GREG RISEDORF: Bruce Barker, County Attorney, stated
the Temporary Assembly Permit is being applied for in conjunction with the Special Events Liquor
License in the following item of business. Chair Pro-Tem Masden called up the following item of
business to be discussed concurrently. Greg Risedorf, applicant, stated the 22nd Annual Frank's Ride
for Children fund-raiser, which benefits the Make-A-Wish Foundation of Colorado, Inc., will be held on
May 18, 2008 this year. He stated the event has taken place within Weld County for the past several
years, and explained that the fund-raiser is a well organized motorcycle ride, which has had no
significant problems within past years. He further stated the necessary agencies have been notified of
the event, including the Longmont Emergency Services Unit, Air Life of Denver, Colorado State Patrol,
and the Weld County Sheriffs Office. He stated the event generally draws a large number of riders, all
attendees are given a wristband before they enter the site, according to age, to control the service of
alcohol, and all staff members of the event also act as security guards. In response to Commissioner
Masden, Mr. Risedorf indicated mainly motorcycles participate in the ride; however, the ride is open to
all motorized vehicles. Responding to Commissioner Rademacher, Mr. Risedorf indicated the number of
attendees depends upon the weather conditions; however, he expects approximately 900 to 1,300
attendees this year. Commissioner Garcia moved to approve said application. Seconded by
Commissioner Rademacher, the motion carried unanimously.
CONSIDER APPLICATION FOR A SPECIAL EVENTS PERMIT AND AUTHORIZE CHAIR TO SIGN - MAKE-A-
WISH FOUNDATION OF COLORADO, INC.: Mr. Barker stated due to Statute requirements, this item of
business must be opened to the public in order to obtain public input. No public testimony was
provided regarding the matter. Commissioner Rademacher moved to approve said application and
authorize the Chair to sign. Seconded by Commissioner Garcia, the motion carried unanimously.
CONSIDER APPLICATION FOR SAFETY GRANT AND AUTHORIZE CHAIR TO SIGN: Paul Wood, Sheriffs
• Office, stated the application, submitted to the Colorado Department of Transportation, requests grant
funds to administer the Checkpoint Colorado Program. He stated the funds will be utilized to
compensate officers for the overtime hours utilized to provide sobriety checkpoints within the County.
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In response to Chair Pro-Tern Masden, Mr. Wood stated the application is requesting the necessary
funds to complete five checkpoints; however, additional checkpoints will also be completed in
conjunction with the Weld County DUI Task Force, which includes seven participating agencies.
• Responding to Commissioner Rademacher, the grant funds requested from CDOT total $24,900.00, the
matching funds will come from normal operating funds, and the application did not require an equal
matching share. Commissioner Garcia moved to approve said application and authorize the Chair to
sign. Seconded by Commissioner Long, the motion carried unanimously.
CONSIDER APPOINTMENT TO WELD FAITH PARTNERSHIP COUNCIL: Commissioner Rademacher moved
to appoint Michael Stotts to the Weld Faith Partnership Council, with a term to expire November 1,
2008. Seconded by Commissioner Garcia, the motion carried unanimously.
PLANNING:
CONSIDER ACKNOWLEDGMENT OF RECEIPT OF PAYMENT IN FULFILLMENT OF OBLIGATION FOR
IMPROVEMENTS FOR COUNTY ROAD 80 STABILIZATION AND DUST CONTROL, FOR AN EIGHT (8) LOT
MINOR SUBDIVISION, MF #1001 - W.B. FARMS ESTATES, LLC: Don Carroll, Department of Public
Works, stated the applicant has fulfilled the obligation to provide improvements to County Road 80. He
stated the agreement was for a period of five years, and stated that as each lot was sold, money would
be placed into escrow, up to a total of $14,500.00. He further stated this development created 25
percent of the traffic impact along this road, therefore, the road was stabilized, and the applicant has
fulfilled its obligation. He indicated the site is located three miles west of the Town of Ault, and one
mile south of State Highway 14. Commissioner Rademacher moved to approve acknowledgment of
receipt of payment. Seconded by Commissioner Garcia, the motion carried unanimously.
CONSIDER SETTING AMENDED HEARING DATE, SETTING OF BRIEFING SCHEDULE, AND
ESTABLISHMENT OF CRITERIA FOR APPEAL OF PLANNING COMMISSION DENIAL OF USE BY SPECIAL
REVIEW #1629 FOR A MAJOR FACILITY OF A PUBLIC UTILITY OR PUBLIC AGENCY: Mr. Barker stated a
hearing regarding the application for Use by Special Review (USR) Permit #1629 was held on January
15, 2008, and the application is requesting the placement of a transmission facility. He clarified the
application was not considered pursuant to 1041 Regulations, therefore, the matter does not come
• before the Board of County Commissioners. He further clarified the application was considered as a
Major Facility of a Public Utility, which the Planning Commission has complete review of, and the
Planning Commission voted to deny the permit. He indicated United Power, Inc., the applicant, has the
right to appeal the decision of any lesser commission or board to the Board of County Commissioners,
pursuant to Section 2-4-10 of the Weld County Code. He stated Exhibit A includes a copy of the
reference for Section 2-4-10. Mr. Barker stated a hearing schedule was set up on March 24, 2008, in
order to consider the appeal of United Power. He clarified a copy of the transcript from the Planning
Commission meeting has been ordered, for the Board to review, and to certify the record for the
appellant and those wishing to protest the appeal. He stated the original hearing date was set for April
23, 2008; however, the processing of the transcript has taken longer than expected, and it will not be
completed until April 25, 2008. He further stated after discussions with the affected parties, a modified
schedule was created, and the hearing date of April 23, 2008 shall be vacated and rescheduled for May
14, 2008. He stated United Power will provide a brief, then any interested parties may provide a
response to the brief, and United Power will reply to the responses, if the company chooses to do so.
Mr. Barker stated questions have been raised regarding the criteria for review, and the third page of
Exhibit A does not provide a standard of review, therefore, there has been debate between the parties
regarding the standard for review. He recommended the appeal brought before the Board be treated in
the same manner as a Rule 106 Hearing, similar to land use hearings denied by the Board which may
be appealed to the District Court. He indicated the Board must consider whether the Planning
Commission has exceeded its jurisdiction or abused its discretion in denying the permit for USR #1629.
He stated Mark Meyer, representing United Power, provided an e-mail, contained within Exhibit A,
which included the suggested language for the appeal criteria to be incorporated into the Resolution,
which he reviewed for the record. Mr. Barker summarized the Board may consider the appeal through
the Rule 106 Hearing, determining whether the Planning Commission exceeded its jurisdiction or
abused its discretion, or, as suggested by United Power, that the Planning Commission met its burden
of proof contained with the previous section references. He stated he reviewed the Weld County Code
to determine other instances of appeals, and two types of appeals were found, including a Grievance
Hearing for employee discipline, as detailed in Chapter 3, and the appeal of Road Impact Fees, as
detailed in Chapter 20. He clarified the Board is the appellate body for grievance procedures, which is
• similar to the standards for Rule 106 Hearings. He further clarified the appeal process within Chapter
20 details the appeal of the decision made by the Director of the Department of Public Works, and the
Board must make written findings of fact and conclusions of law, according to the same standards of
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the decision maker.
Mr. Barker indicated his belief is that this type of appeal shall be handled similar to a grievance
• hearing, since the decision was made by a lesser Commission, and public testimony was considered,
which is different than the situation for an appeal of a Road Impact Fee. He clarified grievance hearings
do not require a public hearing; however, the appeal does come before a board appointed by the Board
of County Commissioners to make a decision. He indicated it is more appropriate to determine if the
Planning Commission exceeded its jurisdiction or abused its discretion. He stated he received an e-mail
from Cynthia Treadwell, marked Exhibit B, which contained a suggested modification to the Resolution
language; however, he recommended that the language within the Resolution remain as presented.
In response to Chair Pro-Tern Masden, Mr. Barker indicated the Board will not receive additional
testimony or evidence at the hearing; however, the Board will review the previous record of the
Planning Commission, which is similar to a Rule 106 Hearing. Responding to Commissioner
Rademacher, Mr. Barker clarified the Board will only hear oral arguments from the attorney
representing United Power, and the attorney representing the Homeowners' Association of the
surrounding property owners, only regarding the decision made by the Planning Commission. He
further clarified additional evidence and testimony will not be presented within the hearing.
Commissioner Garcia clarified that within the hearing now proposed for May 14, 2008, the Board will
not consider each fact as the Planning Commission did at the hearing on January 15, 2008; rather, the
Board will need to determine whether the Planning Commission was clearly wrong in the decision, or if
the Planning Commission exceeded its jurisdiction. He clarified the Board will not be in a position to
second-guess the facts; however, the Board will need to second-guess the action of the Planning
Commission. In response to Commissioner Rademacher, Commissioner Garcia indicated the Board will
either affirm the decision of the Planning Commission, or remand the decision, which means the matter
will be sent back to the Planning Commission with directions to correct certain mistakes. Further
responding to Commissioner Rademacher, Mr. Barker indicated if the permit is denied again by the
Planning Commission, after the remand, the denial will stand. He clarified State statute allows for the
process of an appeal to the Public Utilities Commission (PUC), therefore, United Power may enact their
right to initiate an appeal to the PUC. In response to Chair Pro-Tem Masden, Mr. Barker confirmed that
if the Board approves the appeal, the matter will be sent back to the Planning Commission with written
directions for further testimony and considerations. No public testimony was provided regarding the
matter. Responding to Commissioner Rademacher, Mr. Barker recommended the Board approve the
• Resolution setting the hearing date and briefing schedule, as presented, without the modifications
suggested by the e-mails submitted by Mr. Meyer or Ms. Treadwell. Commissioner Rademacher moved
to approve the Resolution to set an amended hearing date and briefing schedule, and to establish the
criteria for the appeal of Use by Special Review Permit #1629. Seconded by Commissioner Garcia, the
motion carried unanimously.
SECOND READING OF ORDINANCE #2008-2, IN THE MATTER OF REPEALING AND REENACTING, WITH
AMENDMENTS, CHAPTER 29 BUILDING REGULATIONS, OF THE WELD COUNTY CODE: Commissioner
Rademacher moved to read said Ordinance by title only. Seconded by Commissioner Garcia, the
motion carried unanimously. Mr. Barker read said title into the record. Roger Vigil, Department of
Building Inspection, stated one modification was made within Section 29-3-70, as a result of the
discussion within the most recent work session. He indicated the first sentence of Section 29-3-70.B.3
shall state, "Mechanical systems and equipment serving the building, heating, cooling, or ventilation
needs shall comply with Section 403 of the International Energy Conservation Code, except sizing as
required by Section 403.6." He clarified no other changes have been proposed after the approval of the
first reading. Commissioner Garcia moved to approve the second reading of Ordinance #2008-2.
Seconded by Commissioner Rademacher, the motion carried unanimously.
RESOLUTIONS AND ORDINANCES: The resolutions were presented and signed as listed on the
consent agenda. Ordinance #2008-2 was approved on second reading.
Let the minutes reflect that the above and foregoing actions were attested to and respectfully
submitted by the Acting Clerk to the Board.
There being no further business, this meeting was adjourned at 10:10 a.m.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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EXHIBIT C
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IND - INVENTORY OF ITEMS FOR CONSIDERATION
Applicant A. Dale Slater Trust B Case Number USR-1629
Submitted or Prepared
Prior to At
Hearing Hearing
". 1 Staff Comments X
Department of Planning Services Field Check Form X
Planning Commissioner Field Check Form
Letter to Applicant X
Affadavit of sign posting X
4
Legal Notifications X
• 2 Application X
• Maps X
Deed/Easement Certificate X
• Surrounding Property/Mineral Owners X
' Utilities X
N4 3 Referral List X
Referrals without comment
Colorado Division of Wildlife, referral received 10/11/07 X
Weld County Zoning Compliance, referral received 9/26/07 X
• Mountain View Fire Prevention District, referral received 10/2/07 X
• 4 Referrals with comments X
N Weld County Department of Public Works, referral received 10/22/07 X
Weld County Paramedics, referral received 10/1/07 X
Weld County Department of Building Inspection,referral received 10/15/07 X
Town of Mead, referral received 10/11/07 X
Colorado Department of Transportation,referral received 10/19/07 X
Longmont Soil Conservation District, referral receivedl0/12/07 X
Weld County Department of Planning Services, Landscape referral X
received 9/26/07 w
-.' Weld County Department of Public Health and Environment, referral X
received 10/22/07
.' Weld County Sheriff's Office,referral received 11/13/07 • X
N' 5 Surrounding Property Owners-Letters C
\N A Letter from Sharron and Steve Kilgore dated 11/15/07 X
EXHIBIT
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2008-1000 1 u
Letter from Sherron and Steve Kilgore dated 11/20/07 X
\`.41 ‘ Letter from Laura Register and Levi Griffin dated 11/20/07 X
Letter from Betty and Doug Souhrada dated 11/20/07 X
Letter from Michael dated 11/20/07 X
Letter from Bill Pouoch dated 11/20/07 X
Letter from John dated 11/20/07 X
Letter from Lyle dated 11/20/07 X
Letter from Jim and Maggie Goedle dated 11/20/07 X
v Letter from Ana Save dated 11/20/07 X
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Letter fromRobert De Lewis dated 11/20/07 X
v Letter from Jim Trippon dated 11/20/07 X
Letter from Ray Orboeck dated 11/20/07 X
Letter from Bruce Gray dated 11/20/07 X
Letter from Voley dated 11/20/07 X
Power lines and property Values:the good the bad and the ugly X
Letter from Laura Stubbs dated 11/14/07 X
• 6 PC Exhibits X
fig . '
` 6.A Power Point presentation X
'' 6.8 United Power letter dated 1/29/04 X
• 6.C United Power Memo dated 8/30/06 X
6.D United Power Memo dated 8/11/06 X
N.
6.E Town of Mead Land Use Map X
• 6.F Power Point/Power Substation ...Is there and alternative X
6.G Coping with the Risk of Cancer in Children Living Near Power Lines X
6.H Map of Centex Development X
6.1 Maps X
I hereby certify that the BBBB items identified herein were submitted t e e me f Pla - Se ' at or prior to the
sch P i i loners hearing.
Michelle Martin v Planner
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EXHIBIT D
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BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Case Number: USR-1629
Appeal Pursuant to § 2-4-10 of Denial of Site Specific
Development Plan and Use by Special Review
Applicant: A. DALE SLATER TRUST B (UNITED
POWER)
AMENDED COMPLAINT TO WELD COUNTY COMMISSIONERS
Applicant A. Dale Slater Trust B through United Power. Inc. ("Applicant") files this
Amended Complaint pursuant to Section 2-4-10 to appeal from the decision of the Planning
Commission ishich recommended denial of the application Ihra Site Specific Development Plan
and Use be Special Review.
• I. During September, 2007. Applicant submitted an application for a Site Specific
Development Plan and Use by Special Review to construct an electric substation ibr a puhlic
utility on a portion of Applicant's property in Weld County.
2. Thereafter, the Department of Planning Sere ices of Weld Countv gathered
information including input from numerous referral agencies. Ater reviewing the case under all
of the standards set forth in § 23-2-4000 of the Weld County Code, the Department of Planning
recommended approval. The Planning Department's Special Review Permit Administrative
Review is attached at Exhibit A.
3. Following review of the ease on January IS, 2008. the Planning Commission
"recommended" that this application be denied by a vote of 3 to 2 with 4 members absent, The
Resolution evidencing the "recommendation" of denial is attached at Exhibit R to this Objection.
4. AppliLam Las appwlcd JlL ILLuj ,;cudativ,i of the-PI C tmd
filed a Sunuuary. This Complaint amenda that Summary.
AiiucLul Iv tlii., Complaint at Exhibit C ;s a Map .rhtch ahowa the location of the-
ptoposed subswiiou acid di Iulaiiun .,f,wiuu, ud, , p„ d I„d„g t,i,d,, t1„ .., L, dk,,L;L
li„c3:aod h.,,,,cs Rood.. Th., Mat, is h tLiidLd thL D„a,d a,rdl�
uo4 ueKaaai l r h, .,u .
EXHIBIT
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Ll
aU;J5I IY: ;
2008-1381
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6. As required by Section 23-4-420, the record and facts in this case demonstrate that
there is a need for this electric substation in the area of service. References to "Sections" in this
Amended Complaint are to the Weld County Code unless otherwise stated. Both the Department
of Planning Services and the Planning Commission agreed there is a distinct need for this
substation. Atteek.d at Exhibit D is an affidavit and engineerieg analysis from Donald W.
McDaniel, P.E., the E/rginteling Supc visor at United Power, demonstrating a need for the
substation at Highway 66 and Weld County Road 5.5 between the years 2006 mid 2010. The
actual growth north of Highway 1 19 to Weld County Road 40 has been huge, and the planned
growth in this service area includes a new high school and new developments such as the .
Waterfront, Life Bridge, Kiteley Farms, Mead Town Center and Centex. United Power had -
planned to build the substation in 2009, but the low voltage pome*-TaUejjes^e-+ t-n—no t.i.R_
this service area during 2007 have forced United Power to build the substation in 2008 -
7. The electric substation proposed by Applicant stcps down voltage power from the
Transmission Line to distribute voltage to serve residents and businesses in the service area. The
electrical equipment will be enclosed, secured by locks, protected by a ten foot wall, sunk into
the ground, and screened by both a berm and landscaping. The substation will not be continually
manned so there is no need for waste disposal or a water source. Noise levels will be less than
those permitted by Colorado Revised Statutes 25-12-103. There will be no air pollution and the
substation will be constructed and operated in accord with the National Electrical Safety Code
• and Rules of the Environmental Protection Agency. Lands disturbed during construction will be
reseeded with natural grasses.
8. The Planning Commission was confused about the process they should use to
consider the Application. (See portions of the Transcript of the January 15, 2008 Planning
Commission Meeting at pages 92 to 110 (with specific examples at 92:5-14, 99:3-10, and 20-25,
100:7-13, and 101:16-20). Part of this confusion arose because the attorney for Centex Homes
told them that the Planning Commission was the "final decision maker. Any decision that you
make has to be appealed directly to the Court." (See portions of Transcript, at 46:12-14.) Of
course, that was an inaccurate statement which ignored the Appeals Process provided in Section
2-4-10 by which the Board of County Commissioners "shall hear all the available facts". Section
2-4-10(D).
9. The Planning Commission also appeared to be confused about the meaning of one
or more of the standards enumerated in Section 23-2-400. (See portions of Transcript at 107:8-
11 and 107:22- 108:2.) They were advised they could vote on the Motion even if they didn't
agree with the basis on which the Motion was made. (See portions of Transcript at 108:17-19.)
United Power submits such procedure is not accurate.
10. Section 2-4-10 requires that this Complaint describe the basic facts. Applicant
will do so by addressing each of the standards for a public utility facility set forth in Section 23-
2-400. It is important to note that the Planning Department, based on its own investigation and
signoffs from eleven referral agencies, found that each of these standards were satisfied in this
• Application. See Exhibit A.
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Section 23-2-400(A). Reasonable efforts have been made to avoid irrigated cropland or
to minimize the impacts on such lands in those cases where avoidance is impractical.
As found by the Planning Department, the subject site is designated 'other" by the USDA
Soil Conservation Services and the small size of the lot severely limits its agricultural value and
use. See Exhibit A, c 2.A. Thus, standard A has been satisfied.
Section 23-2-400(B). The facility will not have an undue adverse effect on existing and
future development of the surrounding area as set forth in applicable Master Plans.
Becance the attorney for Centev biomes,the}milder/developer of I iherty P anelt, argued
thi" SlAPdard before the P13nniiag Corproiccion, Applicant prpvitec rnorefaetc roncerPiPg It,
Iluwecc, the Plaaoing Commission did not recommend denial on the basis of this Standard.
The key here is the phrase "undue adverse effect " Any public utility cite may effect
evsting and future development hot that is not the standard Sipre puhlir utility facilities
including electric substations are necessary for residential and commercial growth and therefore-
benefit the community, the standard is "undue adverse effect " Because the plans and
t {c '1 uccio conce g c, d d (' vt naragra nh\the Saciaity
. Wig r 4 har'e-3.1 "Urnd"C2dverce effort "
Attaehed at Exhibit E are affidavits from Weld County residents supporting this
Application including affidavits from the owners of the land on which the substation will be
built, as follo"s•
1. Affidavit of Nancy I Slater, owneref a3,aner section of land of w ch.t.he_NorthwccL
earner trill be sold to pplisar+t fee c e of a c, bstation;
2. Affidavit of Evtest M. Kiteley, general partner of Kitelcy Farms LLLP, owner of-
property not tl,cast of the Slater prnpetty,
3. Affidavit of Midwest Ilcritage Inn of Visalia,Inc. and Midwest Heritage Inn of
Dwtfa,d,Inc.,tuner of property adjacent to the east of the Slater property;
4. Aff,dav t of Mpa Jan.. sa...ego, owner of property to the northwest of the Slater
preperty i and
—5. Affidavit of Jcicy I Iergenreder, owner of property adjaeent to the west of the Slater —
property.
Certain homeowners suggest that their property values will be affected by the substation.
However this Standard does not mention property values. N�v,ethcicss, Stan Sessions, former.
Weld County Assessor and real estate breker in \Veld County, has studied plans for the
• substation, visited the site, and analyzed the market value of the homes in Liberty Ranh. As set—
forth in his Affidavit at Exhibit F, there will be little or no oconon c impact on the hornet froth
M555119/3} - 3-
the construction of the substation There may he n,gat�.,e ernnnrnir affect frnm the pnwer lines,
aJ diAlog..;sh,d fie., th,, substation, but that power line has been there for three decades. cute,'
'Homes built homes in Liberty Ranch, and people bought the homes, knowing the power lines
were there.
The Planning Department found that there was no undue adverse affect and the Planning
Commission did not recommend denial based on this standard. Standard B has been satisfied.
Section 23-2-400(C), The design of the proposed facility mitigates negative impacts on
the surrounding area to the greatest extent feasible.
Keause one or two members of the Planrirg Commission believe that the design has not
been explored to the fullest possibility to mitigate negative impacts, and because some of the
residents of Liberty Ranch oppose the Application on this basis, the Applicant provides more
facts relating to thic standard
The homes in Liberty Ranch were built immediately to the nnrth of an electric
Transmission Line that h"s been in place for ,"er 12 ears See Map at Fvhihit C When the
residents bought their homes and moved in, they knew of and could see the Trancmiccion i ire
See L.Aliibit C, showing (among other views)the current vie from the closest home that is
• inhabited ^"ithin Liberty Ranch to the proposed st'bstatier5 `vhirh "ie`=' is looking the snnth and
diva, ,,,D:dento tl..t ,.t,g.t.d„a t., that electrical system are necoxary, including the substation.
Nevertheless, United Power has mitigated against negative impacts on Liberty Ranch and the -
founding area to the "greatest extent feasible" as required by the standard
• During the notification process, United Power provided nntire to herneo`=hers in
Liberty Raneh that was not required by the Weld County Code There are no
existing homes within five hundred (500)feet of the substation to whnm notice
Wa3 required. See Affidw•it of Jason S. Maxey, attached at Exhibit H.
+ United Power hosted an open house to describe the substation and got input from
n.:b-hbora including Liberty Punch homeowners. See Affidavit of Jason S.
Maxey, attached as Exhibit H.
• h..,,spo„se to that input, United Power increased the height of the screening 3vall
f. ... tln, ,.;gl.t(8) feet recommended by the Planning Department to ten(10) feet.
Sec Affidavit of Jason S. Maxey, attached as Exhibit H.
w U,,;t,,el Pewe, add..d b.;ek corner columns to the wall to make it more
cee affidavit of lacnn S Maxey,attached as Exhibit H
aesthetically pleasing .
+ United Pcwcr agreed to bury all circuit exits out of the substation(see Affidavit of
• . axey, a
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• United Power agreed to move the substation further south by approximately-one—
. hunched (100) feet. See Affidavit of Jason S. Maxey, attached as Exhibit II.
• United Powe, added additional berms on the northwest corner to further protect-
the view hum Wcld County Road 5.5. See Affidavit of Jason S. Maxey, attached
„”Exhibit II.
• Although \Veld County does not require landscaping for the substation, United
Power adhered to higher landscaping requirements of the City of Mead to be
consistent with the surrounding area. See Affidavit of Jason S. Maxey, attached
as Exhibit H.
Due to these plans and concessions, the post construction computer simulations from four views
of the substation (attached as Exhibit I) show that Applicant has mitigated negative impacts on
•thc surrounding area to the "greatest extent feasible."
Equally important, the proposed Conditions of Approval and Development Standards
authored by the Planning Department will also mitigate negative impacts. They are included in
Exhibit A. The Planning Department so found (Exhibit A, ¶2(C)) and the Applicant has
satisfied Standard C.
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23-2-400(D). The site shall be maintained in such a manner so as to control soil erosion,
dust and the growth of noxious weeds.
The Conditions of Approval and Development Standards will ensure that there is no
fugitive dust or erosion and will ensure the control of noxious weeds (see Exhibit A, items 8 and
13). The Planning Department so found (Exhibit A,¶ D), and the Applicant has satisfied
Standard D.
23-2-400(E). Applicant has agreed to implement any reasonable measures deemed
necessary to ensure that the health, safety and welfare of the inhabitants of the County
would be protected, and to mitigate or minimize any potential adverse impacts from the
proposed facility.
Because one or two members of the Planning Commission believe that measures have not(
been taken to mitigate or minimize potential adverse impacts regarding health, safety and welfare
of inhabitants in the surrounding area, and because some of the residents of Liberty Ranch
oppose the Application on this basis, the Applicant provides more facts relating to thin Standard.
As stated above, when the residents of Liberty Ranch bought their homes, an electric
Transmission Line had been on the south side of their lots for many years All residents in _
Libel ty Ranch bought and moved into their homes with knowledge of the existence of the Transmission Line,Line, because it was readily visible. Of the current homes in Liberty Ranch, the
• closest is approximately 350 feet north of the Transmission Line. The substation will be located -
fmthe, south than the Transmission Line. In other words, the Transmission int'is herwren the
(00555119/31 - 5-
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residents of Liberty Ranch and the substation. See Map at Exhibit C. See also Exhibit G,
chewing(among other views)the current view from the closest home that is inhabited within .
-Liberty Ranch to the proposed substation, which view is looking due south and shows the
T,a smission Line as elearly visible from such residence.
The closest residence in Liberty Ranch currently occupied is more than six hundred (60(4)
As previously indicated, the Affidavit from Stan Sessions, former A33c3sor of the County.
of Weld and longtime real estate broker in Weld County, indicates that there will be little or no
-economic impact on the residents in Liberty Ranch from the construction of the substation. Any
adverse economic impact arises from the Transmission Line whirh urac already present when the
property ewners purchased their lots or moved into their homes. Such Transmission Line is not
-owned or opnr2}erl by Un4+ed Pewer
Some of the residents of Liberty Ranch have asserted that the substation will create an
electronic magnetic field that is a health risk. Contrary to that assertion, the Affidavit of Dr.
Robert Pearson, Vice President, Industrial Systems Group at CH2M Hill, a well recognized
national expert on electronic magnetic fields and related health issues, clearly states that there is a
• low risk of health effects from this substation and that "no EMF from the proposed Slater
Substation itself will be detectable in any of the homes in the Liberty Ranch Subdivision". The
substation itself will not change the EMF environment of the Transmission Line. See Transcript
at 32:21-33:5. Site-rnagnetie fields produced by the substation at the wall c'trronnding ii, are
comparable to those found in your home or office to which we are exposed on a daily basis See
;Affidavit attached ac Fxhihit I cPP alcn related testimony frnm llr Pearcnn in Transcript at
30:9 33: 7.
It should be noted that the assertions from Liberty Ranch owners at the Planning
Commission hearing are all to an alleged health risk caused by transmission lines, not a
substation. The Transmission Line has been in place for three decades, and therefore all of such
testimony is irrelevant. Such residents offered no evidence that there were health risks from the
addition of a substation, let alone a substation located on the opposite side of the existing
Transmission Line.
It should be noted that during the Planning Commission hearing(see Transcript at 89:23-
91:14) Pam Smith, a staff member of the Weld County Health Department, reported that she did
not find any documentation showing there were any significant health risks from electromagnetic
fields (EMF). She reported that EMF from household appliances at 6 inches were stronger than
EMF from a power station even if you are standing near it. (See Transcript at 90:7-13.)
The Department of Planning found that this Standard has been satisfied, and certainly the
Conditions of Approval and Development Standards will further protect the health, safety and
• welfare of the inhabitants of Weld County, Standard E has been satisfied.
(00555119/3) - 6-
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23-2-400(F). The proposed facility will be supplied by an adequate water supply which
has been evaluated with reference to the impacts of the use of such supply or agricultural
uses. All reasonable steps have been taken by the Applicant to minimize negative impacts
on agricultural uses and land.
As found by the Planning Department, the substation will not require water demands or a
water source at the site. See Exhibit A,¶ 2(F). This Standard has been satisfied by Applicant.
23-2-400(G). All reasonable alternatives to the proposal have been adequately assessed,
and the proposed action has been consistent with the best interests of the people of the
County and represents a balanced use of resources in the affected area.
'Det,nusc the attoracy for Centex Homes argued that reasonable alternatives may not have
been adequately assessed, the Applicant provides more facts relating to this Standard
i Its suktat,V,t —ill be conatructed in accord with modern requirements "'hich provide
,reliability and safety. Based on the technical iss11ts irronunended by several engineers, it his
been determined that the best engineering model and the least amount of impact will be to build
.ti4nhctatjna alnng the evicting Trance issinn tjae Thie wnyld eliminate-the peed to have t'"'n
'poles with three circuits (two in and one out)if the Transmission line is extended north or seuth
• --from the existing Transmission Line.—
In locating a substation, several criteria must be reviewed, all as set forth it the Summary
Frpvip„cly Merl Attarhedat Fxhibit y is a I4apwhich reflects-the prepe ties reviewed and
n""lera'Lhy United Pn..,er r inited Power hag spent rrinrh time and money investigating all the
altci,iatives and these efforts are outlined in the affidavit of Donald McDaniel attached at Exhibit
D. The analysis has been ongeing since 2004. The properties examined are those near the load.
center shown on the Map at Exhibit K(the utility of the substation declines as the distance from
the load center increases), and those near the existing Transmission I ine (as lines must run from .
r ' v he sukctatinn).�ee Maps ai EKhakits C pad Tc
S;t 0,...: Olw..lcr
The owner was not willing to sell their property to United Power. Distribution lines in
the immediate area are all single phase lines. Since there is no main three phase feeders in
the immediate area, the distance to tie into the existing infrastructure would be higher on -
this property. In addition, this property lips rvithi.r nn area snbjert to an IRA with
rLengment, where L ngmorit has the right t.. annex tt,ift t r Aa t ^^n-^^ t t i.i
of the United-Pewer's service arm it isblghty unrerrm+or for substation to be lncated-ip a
city or town that United Power does not eervire
3itc Me. -Pew
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{00555119/3) - 7-
The owner and real estate representative both told United Power that they' were not
-interested in subdividing the property; they were only interested in selling the entire
parcel, 55 acres. United is a not for profit cooperative and is not in the real estate
investment-business of owning large pareela of land that cannot bo used for its business
purposes. Distribution line in the immediate arca are all single phase lines. Since there is
so main three phase feeders in the immediate area, the distance to tie into the existing
infrastructure would be higher on this property. This parcel is also low lying and therefore
a substation would not be easily hidden from visibility. In addition, this property lies
within an area subject to an IGA with Longmont, and if Longmont elects to annex this
it+rnperty,the Substation ®o„ld be 'orated iq an area that United Pnv.er rine°not sertrtee.
flits Three: Sileno
The owner told United Power they were not interested in selling off a small parcel. They
,would sell the entire parcel, 58 acres. United is a not for profit cooperative and is not in
the real estate investment business of owning large parcels of land that cannot be used for
its business purposes For distribution, additional easements to get to Weld County Road
7 and Weld County Road 28 would need to be acquired. This parcel has a ditch running
through it and is low lying, which together with the natural land contours makes it
• .impossible to screen the substation from visibility by surrounding properties. Moreover,.-
the southern portion of this parcel (which is close to the Transmission Line) is where the
Loagrnent-Reservoir is planned to be created in the-funire, making the distance to tie into-
S;tc Four: Centex Liberty Ranch
This p,ope„y l.-l.cady platt.,d a..d te.dcr development and therefore was not available to .
United Puwwer.
Site Five: Kiteley
The owner told United Power that they have been working with a developer for the past
four years, that they have developed a preliminary plat and could not at this point sell a-
portien of their property to United Power Iv additinn, Aepety inp on the Inr,tinn of the
substation, the lake/flood plain comes into the evaluations and limits the ability to exit
to the cant fa, diet,:but:on.
Site Sin. Mead Crossing
This i3 a commercial subdivision, platted as a business park. United Power had lengthy
discussions with the owner but technically it was not a good location and the cconomiw
did not work. The substation would have had to have been located in close proximity to
• potential flooding and the feasibility of getting eight eireuits out of the substation Into the
{00555119/71 - 8 -
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area was challenging at the very best. This site had to be rejected based on ceonertties,
technical issues and a non agreeable seller:
Site Seven: Waterfront
Although United Power had lengthy discussions about acquiring a specific area of this
Cite, C DOT acquired that portion of the property for highway drainage which eliminated
This location from coasideratier That site was nIse questionable due to being a low lying
`area and had flood plain and technical restraints similar to the Mead Crossing property.-
Th� ndlrai,nlLI of tl,c Wat...f.ent preyerly is already in the planning stages of-
dcvelopment.
Site Eight: Slater
r
This is [lit. p+upcit3 which is thc subjcet of the Application. The seller has been
euut,,..at;ve in terms of selling a small portion of her property as long as it was in the
northwest corner. The natural land contours are conducive to hiding the substation and
the site works from an engineering prospecti""e. The southwest comer of the property is
ptannPd +e bP a new reservoir far the City of Lot-v-1,44)1 so the snbsl Lion must be locate'
• north of the area designated for the reservoir. This property is also outside of the
'Longmont future growth area.
Hrig,CIllerte,
The landownu .va3 only agreeable to subdivide and sell to United Power the east part of
their property(east of the train rail lines) which is complPteiy contained within the Weld
County/Longmont/Mead sub-are° analysis of Pine, '007 This is ow prnpnseA+ In, of
the new Longmont Reservoir and thus made thc property technically infeasible for the
substation.
JRG IUI. L o
Since this is defined open space, the first approval is needed from the Open Space
Direetor for the City of Longmont who did not give approval. The site is not available.
'Of the ten sites studied and considered by United Power, the only one that will womork worth-an—
v.grecablc seller is the Slater property on the northwest corner. If the Board of County
Commissioners does not approve this site, United Power has no other alternative that would be
feasible from an engineering and technical perspective, have an agreeable seller, and create the
lowest impact on the surrounding area.
The attorney for Centex Homes suggested that United Power consider using its
• condemnation power to find another alternative (see Transcript, 57:8 — 12). United Power
always tries to work with an agreeable landowner, especially where as here, a good site can be
{00555119/3) - 9-
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purchased. Condemnation upsets the community and is time consuming which will not permit
United Power to solve the power shortages in the service area.
All reasonable alternatives to the proposal have been adequately assessed and the
proposed substation is consistent with the best interests of the people of Weld County and
represents a balanced use of resources in the service area. Standard G has been satisfied.
23-2-400(H). The nature and location or expansion of a proposed power plant facility
will not create an expansion of the demand for government services beyond the
reasonable capacity of an impacted community or the County to provide such services.
As found by the Planning Department, the substation will create limited, if any, demand
for additional government services. See Exhibit A, ¶2(H). In addition, the substation at issue
here is not a power plant, but rather a substation. This Standard has been satisfied by Applicant.
23-2-400(1). The nature and location or expansion of the facility will meet Colorado
Department of Health and County Air Quality Standards.
As set forth by the Planning Department, the Conditions of Approval and Development
Standards will ensure that the nature and location of the facility will meet Colorado Department
• of Health and Weld County Air Quality Standards. See Exhibit A, ¶ 2(1), and the Conditions
attached in Exhibit A. This Standard has been satisfied.
23-2-400(J). Adequate electric, gas, telephone, water, sewage and other utilities exist or
can be developed to service the site.
As found by the Planning Department, adequate electric, gas, telephone, water, sewage
and other utilities exist or can be developed to service the site. Exhibit A,¶2(J). The Planning
Commission did not recommend denial based on this Standard.
23-2-400(K). The nature and location of expansion of the facility will not unreasonably
interfere with any significant wild life habitat and will not unreasonably affect any
endangered wildlife species, unique natural resource, historic landmark or archeological
site within the affected area.
As found by the Planning Department, the nature and location of this substation will not
unreasonably interfere with any significant wildlife habitat nor affect any endangered wildlife
species. Exhibit A, 112(K). Standard K has been satisfied.
23-2-400(L). The Applicant's engineer has certified that the drainage plans developed
for and to be implemented on the site will prevent sutface drainage from leaving the site
which would exceed historic runofffows.
• As found by the Planning Department, the proposed substation will not significantly
impact drainage of residential property, cropland or other land. Exhibit A,112(L).2(L). Moreover,
{00555119/31 - 10-
•
attached at-Exhibit D-as part of the Affidavit from Donald W. McDaniel, P.E., is the certification
f,uu, United Powc,s engineer and the background information and documentation he obtained
-
from an independent party to confirm that the drainage plans developed for and to be
implemented on the site will prevent surface drainage from leaving the sitc in a manner which
wuu1J exceed 1,storic runoff flows. This Standard has been satisfied.
23-2-400(M). Where a proposed power plant is to be located in an area where a
sufficient housing supply is unavailable for the anticipated immigrant construction force,
the Applicant for the location of such a facility shall present plans showing how housing
will be provided.
As found by the Planning Department, the proposed use as a substation has no associated
housing requirements. Exhibit A, 112(M). This Standard has been satisfied.
23-2-400(N). The Applicant shall submit a signed copy of the notice of inquiry form
demonstrating that the IGA municipality does not wish to annex, if required by the IGA.
As found by the Planning Department, the proposed site does not lie within a
municipality IGA boundary. Exhibit A, 112(N). This Standard has been satisfied.
• 11. Since United Power has demonstrated that there is a need for this electric
substation in the area of service as required by Section 23-4-420, and all of the Standards set
forth in Section 23-2-400 have been satisfied, the Applicant respectfully requests that the
recommendation of the Planning Department be accepted, the recommendation of the Planning
Commission be denied, and the Application approved.
Respectfully submitted this 7111 day of May, 2008.
ROTHGERBER JOHNSON& LYONS LLP
Richard K. Clark, #2753
Mark A. Meyer,#26176
1200 17th Street, Suite 3000
Denver, CO 80202
Telephone: 303-623-9000
Facsimile: 303-262-9222
Attorneys for Applicant United Power, Inc.
•
(00555119/3) - t1 -
CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of May, 2008, a true and correct copy of the foregoing
AMENDED COMPLAINT TO WELD COUNTY COMMISSIONERS was served via hand
delivery, addressed as follows:
Weld County Board of Commissioners
The Clerk to the Board's Office
Attn: Esther E. Gesick
915 10th Street, 3rd Floor
Centennial Center
Greeley, CO 80631
And also served by placing the same in the U.S. Mail, first class postage prepaid, addressed as
follows:
Bruce T. Barker, Esq.
Weld County Attorney's Office
• 915 Tenth Street
P.O. Box 758
Greeley, CO 80632
David W. Foster, Esq.
Foster Graham Milstein & Calisher LLP
621 17th Street, 19th Floor
Denver, CO 80293
•
(00555119/3) - 12-
• RESOLUTION OF THE WELD COUNTY PLANNING COMMISSION
• Moved by Robert Grand that the following resolution be introduced for denial by the Weld County Planning
Commission. Be it resolved by the Weld County Planning Commission that the application for:
CASE NUMBER: USR-1629
APPLICANT: A. Dale Slater Trust B
PLANNER: Michelle Martin
LEGAL DESCRIPTION: SE4 of Section 28,T3N, R68W of the 6th P.M.,Weld County,Colorado.
REQUEST: Site Specific Development Plan and Use by Special Review for a Major Facility
of a Public Utility or Public Agency(Electrical Substation),subject to the
provisions of Section 23.4-420 in the A(Agricultural)Zone District.
LOCATION: North of and adjacent to CR 28 and west of and adjacent to CR 7.
be recommended unfavorably for the following reasons:
The Planning Commission recommends that this request be denied for the following reasons:
1. Section 23-2-400.C. -- The design of the proposed facility does not mitigate negative impacts on the
surrounding area to the greatest extent feasible.
Mr. Grand did not believe that had been explored to the fullest possibility.
2. Section 23-2-400.E.—The applicant did not prove,by a preponderance of the evidence,that the measures it
proposed to mitigate or minimize any potential adverse impacts from the proposed facility would ensure that the
health,safety,and welfare of the inhabitants of Weld County would be protected.
Mr.Grand did not think that had been adequately addressed.
3. Section 23-2-400.G.--All reasonable alternatives to the proposal have not been adequately assessed and the
proposed action is not consistent with the best interests of the people of Weld County and represents a
balanced use of resources in the affected area.
Mr. Grand was not convinced that was true either. He added that he felt there was a need for the power.
That was not the issue. He just didn't think these people should not be singled out as opposed to the three
points of the Code he mentioned. To him that was a penalty,and as citizens of the County,they should look to
the Planning Commission for consideration for their welfare.
Additional Commissioner's comments:
Doug Ochsner said he disagreed with Mr. Grand and cited Section 23-2-400.8., "The facility will not have an
undue adverse effect on existing and future development of the surroundings areas as set forth in applicable
MASTER PLANS." Thls proposal may have a small effect, but he did not see an undue adverse effect on
future development. He believed most of the concerns can be mitigated. Doug continued that the applicant
must show need for the facility and he thought they had. Growth in the area has been outlined and the need is
obvious with the various subdivisions, residences and businesses planned for the area.Section 23-2-400.E.,
paraphrasing that the applicant has greed to implement and reasonable measures deemed necessary to ensure
health, safety and welfare has shown health and safety of the residents are not an issue on this substation.
Section 23-2-400.G., he believed reasoning must be used and that a point on the map can't be picked
arbitrarily. Other locations had not worked out,United Power had a willing seller and no other alternatives had
arisen.
Nick Berryman cited Section 23-2-400.8.regarding"undo adverse effect"and wanted the Commissioners to
reach more of a consensus on how they define that language and its interpretation.We have an impact on the
Liberty Ranch subdivision. However,do those concerns of the residents meet the criteria for what we would
term an undue adverse effect on their property?
Tom Holton was uncomfortable with how they were doing the motion and said he did not necessarily agree with
the first two sections, but did agree with the third and asked how they reconciled that.
EXHIBIT
I A
2008-0999
•
•• Motion seconded by Toni Holton.
VOTE:
For Denial Against Denial Absent
Doug Ochsner—Chair
Tom Holton—Vice Chair
Paul Branham
Erich Ehrlich
Robert Grand Bill Hall
Mark Lawley
Nick Berryman
Roy Spitzer
The Chair declares the resolution passed and orders that a certified copy be placed in the file of this case to serve as a
permanent record of these proceedings.
CERTIFICATION OF COPY
I, Donita May, Recording Secretary for the Weld County Planning Commission, do hereby certify that the above and
foregoing resolution is a true copy of the resolution of the Planning Commission of Weld County,Colorado,adopted on
January 15,2008.
Dated the 15th of January,2008.
impDonita
Secretary
•
•
Resolution USR-1629
A.Dale Slater Trust B c/o
United Power
Page 3
SPECIAL REVIEW PERMIT
tettarg ADMINISTRATIVE REVIEW WI`Pc
COLORADO
Planner: Michelle Martin
Case Number: USR-1629 Hearing Date: November 20, 2007
Applicant: A. Dale Slater Trust B c/o
Jason Maxey with United Power
Address: 13433 County Road 7, Longmont, CO 80504
Request: A Site Specific Development Plan and a Special Review Permit for a Major Facility of a Public
Utility or Public Agency(Electrical Substation),subject to the provisions of Section 23-4-420
in the A(Agricultural)Zone District
Legal
Description: SE4 Section 28, Township 3 North, Range 68 West of the 6'h P.M. Weld County, Colorado
Location: West of and adjacent to County Road 7 and north of and adjacent to County Road 28
Parcel ID/I: 1207 28 000010 Size of Parcel: 160 +/-acres
Size of USR:6 +/-acres
THE DEPARTMENT OF PLANNING SERVICES'STAFF RECOMMENDS THAT THIS REQUEST BE
APPROVED FOR THE FOLLOWING REASONS:
1. The submitted materials are in compliance with the application requirements of Section 23-2-260 of
the Weld County Code.
2. It is the opinion of the Department of Planning Services'staff that the applicant has shown compliance
with Section 23-2-400 of the Weld County Code as follows:
A. Section 23-2-400.k --Reasonable efforts have been made to avoid irrigated crop land or to
minimize the impacts on such lands in those cases where avoidance is impractical. The
subject site is designated"Other"by the USDA Soil Conservation Services dated 1979.The
small size of the lot(6 acres)severely limits its agricultural value and use.
B. Section 23-2-400.B. — The facility will not have an undue adverse effect on existing and
future development of the surrounding area as set forth in applicable Master Plans. The
subject property lies within the three-mile referral area of the Boulder County, City of
Longmont,Town of Firestone and Town of Mead. The Town of Mead in their referral dated
N 10/10/07 states that United Power and the Town of Mead have entered into discussion for
annexation and development of a power station on the proposed lot(Lot A of RE-4712). No
EXHIBIT
•• Resolution USR-1629
A.Dale Slater Trust B c/o
United Power
Page 4
response has been received by the Town of Firestone,City of Longmont and Boulder County.
C. Section 23-2-400.C. --The design of the proposed facility mitigates negative impacts on the
surrounding area to the greatest extent feasible. The proposed facility will be compatible with
surrounding land uses. While there are predominantly agricultural uses in the area, the
property to the north is located within the town limits of Mead. The property to the south is
zoned PUD with Estate uses (Adler Estates). The property to the east is proposed as a
residential subdivision (Waterfront at Foster Creek). The proposed Conditions of Approval
and Development Standards will minimize negative impacts on the surrounding area.
D. Section 23-2-400.O. — The site shall be maintained in such a manner so as to control soil
erosion, dust, and the growth of noxious weeds. The Conditions of Approval and
Development Standards will ensure that there is no fugitive dust or erosion and will ensure
the control of noxious weeds.
E. Section 23-2-400.E. — The applicant has agreed to implement any reasonable measures
deemed necessary by the Planning Commission to ensure that the health, safety, and
welfare of the inhabitants of Weld County will be protected and to mitigate or minimize any
potential adverse impacts from the proposed facility.
F. Section 23-2-400.F. --All reasonable steps have been taken by the applicant to minimize
negative impacts on agricultural uses and lands. The proposal will not require additional
water demands on the site. The proposed facility will be unmanned and will not require water
or sewage disposal. The Conditions of Approval and Development Standards minimize
negative impacts on the existing agricultural uses and lands of the area.
G. Section 23-2-400.G. -- All reasonable alternatives to the proposal have been adequately
assessed and the proposed action is consistent with the best interests of the people of Weld
County and represents a balanced use of resources in the affected area. The proposed
structure will service the residents of the area.
H. Section 23-2-400.H. — This application will create limited, if any, demand for additional
government services.
Section 23-2-400.1. --The Conditions of Approval and Development Standards will
ensure that the nature and location of the facility will meet Colorado Department
of Health and Weld County air quality standards.
J. Section 23-2-400.J. —Adequate electric, gas, telephone, water, sewage, and other utilities
exist or can be developed to service the site.
K. Section 23-2-400.K. -- The nature and location or expansion of the facility will not
unreasonably interfere with any significant wildlife habitat and will not unreasonably
affect any endangered wildlife species, unique natural resource, historic landmark
or archaeological sites within the affected area. There will be no significant impact
on wildlife habitat. The Division of Wildlife indicated that they had no conflicts with the
project, as stated in their referral dated 10/7/07,
L. Section 23-2-400.1. --The proposed use will not significantly impact drainage of residential
property, crop land or other land.
•• Resolution USR-I629
A.Dale Slater Trost B c/o
United Power
Page 5
M. Section 23-2-400.M—The proposed use has no associated housing requirements.
N. Section 23-2-400.N—The proposed site does not lie within a Municipality IGA boundary.
This recommendation is based,in part,upon a review of the application materials submitted by the applicant,
other relevant information regarding the request, and responses from referral entities.
The Department of Planning Services'staff recommendation for approval is conditional upon the following:
1. Prior to recording the plat:
A. The applicant shall either submit a copy of an agreement with the property's mineral
owner/operators stipulating that the oil and gas activities have been adequately incorporated
into the design of the site or show evidence that an adequate attempt has been made to
mitigate the concerns of the mineral owner/operators. Drill envelopes can be delineated on
the plat in accordance with the State requirements as an attempt to mitigate concerns. The
plat shall be amended to include any possible future drilling sites. (Department of Planning
Services)
B. The applicant shall attempt to address the requirements (concerns) of Town of Mead, as
stated in the referral response dated 10/10/07. Evidence of such shall be submitted in writing
to the Weld County Department of Planning Services. (Town of Mead)
C. The applicant shall attempt to address the requirements (concerns) of the Longmont Soil
Conservation District, as stated in the referral response dated 10/9/07. Evidence of such
shall be submitted in writing to the Weld County Department of Planning Services.
(Longmont Soil Conservation District)
D. The applicant shall attempt to address the requirements (concerns) of Weld County
Paramedics, as stated in the referral response dated 9/28/07. Evidence of such shall be
submitted in writing to the Weld County Department of Planning Services. (Weld County
Paramedics)
E. The applicant shall attempt to address the requirements (concerns) of Weld County
Landscape referral,as stated in the referral response dated 9/26/07. Evidence of such shall
be submitted in writing to the Weld County Department of Planning Services. (Department
of Planning Services)
F. The applicant shall submit a dust abatement plan for review and approval, to the
Environmental Health Services,Weld County Department of Public Health&Environment.
Evidence of their approval shall be submitted in writing to the Weld County Department of
Planning Services. (Department of Public Health and Environment)
G. County Road 5.5 is maintained by the Town of Mead therefore the applicant shall obtain an
access permit from the Town for the facility. (Department of Public Works)
H. The applicant shall meet the conditions of approval and record the plat for Recorded
Exemption RE-4712 with Weld County Department of Planning Services. (Department of
Planning Services)
•• Resolution USR-1629
A.Dale Slater Trust B c/o
United Power
Page 6
The applicant shall enter into an Improvements Agreement according to policy regarding
collateral for improvements and post adequate collateral for all required improvements. The
agreement and form of collateral shall be reviewed by County Staff and accepted by the
Board of County Commissioners prior to recording the USR plat. The improvements
agreement will not be needed if the necessary improvements are done to the satisfaction of
the Department of Public Works and the Department of Planning Services. (Department of
Planning Services)
J. The applicant shall submit two (2) paper copies of the plat for preliminary approval to the
Weld County Department of Planning Services. (Department of Planning Services)
K. The plat shall be amended to delineate the following:
1. The plat shall be labeled USR-1629. (Department of Planning Services)
2. The attached Development Standards. (Department of Planning Services)
3. The applicant has not delineated any on-site sign(s). If any on-site sign(s)are
desired, the signs shall adhere to Division IV Division 2 of the Weld County Code.
IIIP (Department of Planning Services)
4. A 40' radius is required on all access to public roads. (Department of Planning
Services)
5. The plat shall meet all the requirements of Section 23-2-380 of the Weld County
Code. (Department of Planning Services)
6. All easements shall be referenced on the plat by a reception number or a book and
page number or removed from the plat. (Department of Planning Services)
7. County Road 5.5 is classified by the County as a Strategic Roadway road, which
requires 140 feet of right-of-way at full build out The applicant shall verify the
existing right-of-way and the documents creating the right-of-way. The plat shall
delineate the existing right-of-way and the documents which created it along with any
additional future right-of-way required. (Department of Public Works)
8. The applicant shall delineate all onsite lighting. Section 23-3-360.F of the Weld
County Code, addresses the issue of on-site lighting, including security lighting if
applicable, states"any lighting...shall be designed,located and operated in such a
manner as to meet the following standards:sources of light shall be shielded so that
beams or rays of light will not shine directly onto adjacent properties...."(Department
of Planning Services)
2. Prior to Construction:
A. The applicant shall contact the Department of Building Inspection to determine
appropriate Building permits that may be required for all future construction
associated with this facility. (Department of Planning Services)
•• Resolution USR-1629
A.Dale Mater Trust B c/o
United Power
Page 7
B. A stormwater discharge permit may be required for a
development/redevelopment/construction site where a contiguous or noncontiguous
land disturbance is greater than or equal to one acre in area. The applicant shall
inquire with the Water Quality Control Division(WQCD)of the Colorado Department
of Public Health and Environment at www.cdphe.state.co.us/wq/PermitsUnit if they
are required to obtain a stormwater discharge permit. Alternately,the applicant can
provide evidence from WQCD that they are not subject to these requirements.
(Department of Public Health and Environment)
3. Upon completion of 1. above the applicant shall submit a Mylar plat along with all other
documentation required as Conditions of Approval.The Mylar plat shall be recorded in the office of
the Weld County Clerk and Recorder by Department of Planning Services'Staff. The plat shall be
prepared in accordance with the requirements of Section 23-2-260.D of the Weld County Code. The
Mylar plat and additional requirements shall be submitted within thirty(30)days from the date of the
Board of County Commissioners resolution. The applicant shall be responsible for paying the
recording fee. (Department of Planning Services)
4. The Department of Planning Services respectively requests the surveyor provide a digital copy of this
Use by Special Review. Acceptable CAD formats are.dwg, .dxf,and.dgn(Microstation); acceptable
GIS formats are ArcView shapefiles,Arclnfo Coverages and Arclnfo Export files format type is .e00.
The preferred format for Images is.tif(Group 4).(Group 6 is not acceptable). This digital file may be
sent to maos(a�co.weld.co.us. (Department of Planning Services)
5. The Special Review activity shall not occur nor shall any building or electrical permits be issued on
the property until the Special Review plat is ready to be recorded in the office of the Weld County
Clerk and Recorder. (Department of Planning Services)
6. In accordance with Weld County Code Ordinance 2005-7 approved June 1,2005,should the plat not
be recorded within the required sixty(30)days from the date the Board of County Commissioners
resolution was signed a $50.00 recording continuance charge may be added for each additional 3
month period. (Department of Planning Services)
N
•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO Case Number: USR-1629
Respondents: Centex Homes
Liberty Ranch Homeowners Association, Inc. _
RESPONSE TO OBJECTION TO APPEAL CRITERION
Respondents Centex Homes and Liberty Ranch Homeowners Association, Inc.
("Respondents"), by their attorneys, hereby submit their Response To Objection To Appeal
Criterion, as follows:
. On April 25, 2008, Applicant United Power, Inc. ("United Power") submitted its
Objection To Appeal Criterion ("Objection"). In its Objection, United Power claims that,
pursuant to Weld County Code §2-4-10, it is entitled to de novo review of the January 15, 2008
Weld County Planning Commission's denial of Application USR-1629 seeking approval of a
Site Specific Development Plan and Use By Special Review for the construction of a Major
Facility of a Public Utility or Public Agency.
Specifically, United Power claims that Weld County Code §2-4-10 conflicts with the
standard of review established in the April 21, 2008 Resolution of the Weld County Board of
County Commissioners ("Board") establishing the appeal criterion to be applied in this matter as
follows:
BE IT FURTHER RESOLVED by the Board that the criteria for the Board to
determine whether or not it should grant the appeal is whether the Planning
Commission exceeded its jurisdiction or abused its discretion in denying the Site
Specific Development Plan And Use By Special Review Permit #1629 for a
Major Facility of a Public Utility or Public Agency (electrical substation), subject
to the provisions of Section 23-4-420, in the A (Agricultural) Zone District for A.
• Dale Slater Trust B/United Power.
•
See Exhibit C to Objection.
United Power argues that the above standard of appeal is that specified for review of a
final decision of a governmental body pursuant to Colorado Rules of Civil Procedure, Rule
106(a)(4) and that there is no Colorado law or provision of the Weld County Code supporting
amendment of the standard of review in Weld County Code §2-4-10. United Power's argument
is premised upon the characterization of the Weld County Planning Commission's January 15,
2008 denial of United Power's application as a mere "recommendation" that the Board is now
authorized to reopen, review and reconsider.
In response to United Power's Opposition, Respondents assert that the January 15, 2008
Resolution of the Weld County Planning Commission denying United Power's application in
fact constitutes afinal determination concerning United Power's proposed facility and as such is
only appealable to a court of law.' Pursuant to Weld County Code Section §23-3-340, the
Planning Commission has final permit review authority for a Major Facility of a Public
• Utility or Public Agency. The Weld County Board of County Commissioners therefore lacks
jurisdiction to hear this matter in any capacity, under any standard of review whatsoever. This
issue has been briefed fully in Respondents' Response To Amended Complaint, filed herewith.
Respondents incorporate herein by reference all arguments and authority set forth in Sections II
and III of its Response To Amended Complaint as if fully set forth herein.
The issue of proper standard of review should not even be reached in this case due to
inherent lack of jurisdiction. Respondents renew their objection to jurisdiction separately herein
to the extent necessary to preserve the same for the record.
• The time period for filing such an appeal lapsed on February 14,2008. See C.R.C.P. 106(a)(4)(b).
2
•
Dated this 13th day of May, 2008.
FOSTER GRAHAM MILSTEIN MILLER
& CALISHER,LLP .
id m. Foster . 272 3
Cynthia . Treadwell (No. 28868)
621 1\7h treet, Suite 1900
Denver, Colorado 80293
Telephone: (303) 333-9810
Facsimile: (303) 333-9786
Attorneys for Respondents Centex Homes and
Liberty Ranch Homeowners Association, Inc.
•
•
3
•
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 13th day of May, 2008, a true and correct
copy of the foregoing RESPONSE TO OBJECTION TO APPEAL CRITERION was
served by hand-delivery and sent via United States Mail, First Class postage prepaid, as
follows:
Weld County Board of County Commissioners
Clerk of the Board's Office
Attn: Esther E. Gesik
915 10th Street, 3rd Floor
Centennial Center
Greeley, Colorado 80631
Bruce T. Barker, Esq.
Weld County Attorney's Office
915 Tenth Street
P.O. Box 758
Greeley, Colorado 80632
Richard K. Clark, Esq.
Mark A. Meyer, Esq.
Rothegerber, Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
i
"Tami Lawley
•
4
R �
• One Tabor Center, Suite 3000
ROTH G E R B E R 1200 Seventeenth Street
Mark A. Meyer Denver, Colorado 80202-5855
Attorney at Law JOHNSON fh Telephone 303.623.9000
303.628.9570 LYONS LLP Fax 303.623.9222
mmeyer@rothgerber.com www.rothgerber.com
Denver • Colorado Springs • Casper
May 16, 2008
Via Hand Delivery
Weld County Board of Commissioners
The Clerk to the Board's Office
Attn: Esther E. Gesick
915 10th Street, 3rd Floor
Centennial Center
Greeley, CO 80631
Re: Appeal of USR-1629
•
Dear Esther:
Enclosed please find an original and one copy of the Reply to Centex Homes' Response
and the Response to Motion to Strike All New Evidence Submitted by Applicant on Appeal That
is Not Part of the Original Planning Commission Record in the above referenced matter. Please
return file/date-stamped copies in the enclosed self-addressed postage paid envelope.
Please contact me at 303-628-9635 if you have any questions regarding the enclosed.
Thank you for your assistance.
Sincerely,
ROTH GERBER
�JRBER JOHNSON & LYONS LLP
/ 1
Mandy Fulton, Assistant to Mark A. Meyer, Esq.
/mf
Enclosures
EXHIBIT
• J
use *11629
{00561127/1)
ilk)`:- /4311
•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Case Number: USR-1629
Appeal Pursuant to § 2-4-10 of Denial of Site Specific
Development Plan and Use by Special Review
Applicant: A. DALE SLATER TRUST B (UNITED
POWER)
REPLY TO CENTEX HOMES' RESPONSE
Applicant A. Dale Slater Trust B through United Power, Inc. ("Applicant") files this
Reply to the Response filed by Centex Homes and in support of Applicant's appeal from the
decision of the Planning Commission which recommended denial of the application for Site
Specific Development Plan and Use By Special Review.
• Centex Homes and Liberty Ranch Homeowners Association have filed an extensive brief
which purports to argue law applicable to the Board of County Commissioners consideration of
United Power's Application and attempts to justify the action taken by the Planning Commission.
Those arguments do not accurately reflect applicable law and some are disingenuous.
Since Centex Homes has not built and sold more than a majority of the homes in Liberty
Ranch, it controls the Liberty Ranch Homeowners Association. Thus, this Reply collectively
refers to Respondents Centex Homes and Liberty Ranch Homeowners Association as "Centex."
Centex is a homebuilder/developer which has been building a residential development
immediately north of a large power transmission line which has been in place for at least three
decades. That power transmission line is not owned by United Power but any substation to
provide adequate power to the service area must be located in close proximity to the line.
The Weld County Code requires that fifteen standards be applied to an application for
construction of a facility of a public utility. (Sections 23-4-420 and 23-2-400.) The Planning
Staff found that all fifteen were satisfied and recommended approval. A majority of the Planning
Commission found that fourteen of the fifteen were satisfied.
As explained in detail below, the decision of the Planning Commission came down to the
single issue of whether United Power has or has not explored and assessed all alternatives for the
• proposed site for the substation. Three Commissioners said "no", two said "yes."
{00560388/2)
•
The undisputed facts show that United Power considered and adequately assessed "all
reasonable alternatives" to the proposed site as required by 23-20-400(G). The Application
should have been approved.
The Application wasn't approved because at least one of the three "no" votes ... if not
more ... applied the wrong interpretation of standard 23-2-400(G) and the Planning Commission
used the wrong voting procedure.
This Application is crucial to United Power and its members because it cannot support
the tremendous growth West of I-25 and North of Highway 119 without a new substation in this
quadrant. Since 2004, United Power has studied and explored all reasonable alternative sites in
this quadrant and found that the technical and practical limitations of all other sites means that
the property which is the subject of this Application is the only one that can work.
Applicant responds to each of the arguments raised by Centex in the following five
points:
1. Contrary to Centex argument, a majority of the Planning Commissioners agreed
that the Applicants satisfied Section 23-3-420 (need for facility); Section 23-2-
• 400(C) (design mitigates impacts) and Section 23-2-400(E) (reasonable measures
to protect health, safety and welfare).
2. The Planning Commission applied the wrong procedure in voting on whether the
standards in 23-2-400 had been satisfied.
3. The Planning Commission misinterpreted the reasonable alternatives standard of
23-2-400(G).
4. The Board of County Commissioners has jurisdiction to hear and decide this
appeal in Case No. USR-1629.
5. The standard of review by the Board of County Commissioners is not Rule
106(a)(4); it is to hear all available facts pursuant to Section 2-4-10(D) and then
by majority vote either overrule or sustain the Planning Commission's
recommendation.
•
{00560388/2} - 2 -
ARGUMENTS
1. Contrary to Centex argument, a majority of the Planning Commissioners
agreed that the Applicants satisfied Section 23-3-420 (need for facility);
Section 23-2-400(C) (design mitigates impacts) and Section 23-2-400(E)
(reasonable measures to protect health, safety and welfare).
Only five out of the nine Planning Commissioners were present at the hearing on January
15, 2008. Three(Commissioners Grand, Holton, and Lawley) voted to deny the Application and
two (Chairman Ochsner and Commissioner Berryman) voted to approve the Application.
Commissioners Branham, Ehrlich, Hall and Spitzer were absent. However, even the three
Commissioners who voted to deny the Application did not agree on which standards had or had
not been met.
First, contrary to the argument of Centex Homes, no Commissioner found that there was
not a need for the substation. No Commissioner ever made a motion to deny the Application
because of an alleged failure by the Applicant to prove need for the substation under Section 23-
4-420. No motion was ever approved by the Commissioners to deny the Application because of
alleged failure by Applicant to prove need. (See Transcript, pp. 103-112.)
To the contrary, individual Commissioners stated:
Commissioner Grand:
"I think there's a need for the power, that's not the issue." (Transcript, p.
105, Ins. 11-12.)
Chairman Ochsner:
"I think they have done that properly. They have shown the growth that is
outlined in that area, and the need to go along with it is obvious with that
many new subdivisions, residences and businesses planned in the area."
(Transcript, p. 106, Ins. 4-8.)
Centex Homes argues that the Applicant did not prove need (Response, pp. 16-17) even though it
is undisputed that both the Planning Department and Planning Commission found the need for
the substation described in Section 23-4-420 is satisfied.
Second, contrary to the statements by Centex Homes, the Planning Commissioners did
not agree that Standards 23-2-400(C) (design mitigates impacts) and 23-2-400(E) (reasonable
measures to protect health, safety and welfare) had not been satisfied. Although Commissioner
• Grand moved to deny the Application on the basis that three of the standards (C), (E) and (G) had
(00560388/2) - 3 -
•
not been satisfied, Commissioner Holton did not agree that the standards (C) and (E) had not
been met.
Commissioner Holton:
"I guess I'm uncomfortable with doing this motion the way we're doing it.
I don't necessarily agree with Bob on, you know, his first two. I do agree
with 23-2-400.G, so how do we reconcile that? I mean, I can't argue for
his—for 400.B, or what was the other one, E"?
Commissioner Grand:
"C and E." (Transcript, p. 107, In. 22 through p. 108, ln. 3.)
The Transcript is clear that three (Chairman Ochsner, Commissioner Holton and Commissioner
Berryman) of the five Commissioners found that standards (C) and (E) had been satisfied. A
majority of Commissioners present so found. The Application should not have been denied on
the basis of failure to satisfy standards (C) and (E).
There were only three votes to deny the Application even though the transcript is clear
that at least one (Commissioner Holton) and perhaps two (Commissioners Holton and Lawley)I
agreed that standards (C) and (E) had been satisfied. The only standard that at least three of the
Commissioners agreed upon was standard (G) (assessment of reasonable alternatives) which is
addressed in point number 3 below.
2. The Planning Commission applied the wrong procedure in voting on whether
the standards in 23-2-400 had been satisfied.
The voting procedure used by the Planning Commission to determine whether the fifteen
standards had been met were improper. Each standard of Sections 23-4-420 and 23-2-400 must
be met. The Planning Commission must decide whether each standard has been met—by
majority vote. If a majority of the Planning Commission determined that one of the standards
had not been met then the Application could be denied, assuming the majority correctly interprets
the standard.
This is not the voting procedure used by the Planning Commission. The Commissioners
were permitted to vote to deny the Application even though less than a majority thought a
particular standard had not been satisfied. The Commissioners asked how they could reconcile
voting for the Motion if they did not agree with Commissioner Grand's motion that three of the
fifteen standards had not been satisfied (Transcript, p. 107, In. 22 through p. 108, In. 16). The
. I Commissioner Lawley's only expressed concern reflected in the Transcript goes to Standard(G)(assessment of
reasonable alternatives)not to Standards(C)and(E). (Transcript,p. 109 Ins. 20-25.)
(00560388/2} - 4 -
County Attorney advised them that they could vote to deny the Application, even if they didn't
agree with Commissioner Grand that all three standards had been met.
Chairman Ochsner:
"And not necessarily that you agree with all three portions—"
Mr. Barker:
"You don't have to agree with everything that's there. It's really up to you.
Again, the way you resolve that is, you have a vote on the motion."
Chairman Ochsner:
"So even if it was—even if we disagreed with one of his points for his
reasoning for making the motion, we can still vote with him?"
Mr. Barker:
• "Correct." (Transcript, p. 108, ins. 15-23.)
The foregoing procedure permitted a "no" vote even if those voting "no" did not agree
that a particular standard had not been met. In other words, even though a majority of the
Commissioners found that a particular standard was satisfied, a single Commissioner who
thought that a standard had not been met could vote "no" on the entire Application. This
procedure can result in the Application being denied because one Commissioner, not the
majority, thought one standard was not satisfied and another Commissioner, not the majority,
thought another standard was not satisfied. As to standards (C) and (E) this is exactly what
happened in this case. Instead of majority vote on each standard, the procedure allowed the
minority to control. This is contrary to the concept of majority rule which applies to both the
Weld County Planning Commission and the Board of County Commissioners.
3. The Planning Commission misinterpreted the reasonable alternatives
standard of 23-2-400(G).
The only standard that was agreed upon by the three Commissioners who voted to deny
the Application (Commissioners Grand, Holton and Lawley) was standard (G) (assessment of
reasonable alternatives). At least one or more of the three Commissioners who voted to deny the
Application on the basis of standard (G) misinterpreted the standard. Since the approval of this
Application came down to one vote in favor of or against standard (G), this is a material and
significant issue.
IP
{00560388/2} - 5 -
•
The Transcript clearly reflects that this Application was denied because three
Commissioners felt that United Power had not "exhausted all other options in the area, as far as
additional sites." (Transcript, p. 109, lns. 20-24.) Commissioner Lawley even mentioned that
United Power should look at condemnation of a site in assessing alternatives. (Transcript, p.
111, Ins. 15-19.) Centex also suggested to the Commissioners that condemnation should be
considered. (Transcript, p. 57, Ins. 8-14.)
Weld County Code 23-2-400(G) does not require an Applicant exhaust every site in the
county or service area including consideration of condemnation to make a recalcitrant landowner
sell his property for a power substation. United Power's policy is to find an agreeable landowner
not upset residents in Weld County by condemning land. However, the message from the vote of
the Planning Commission is that United Power should change their policy and start condemning
land in Weld County.
Standard (G) states: "all reasonable alternatives to the proposal have been adequately
assessed." That reasonableness standard is the one that the three Commissioners should have
applied, but at least one if not all three, thought that United Power was obligated to explore every
property in the area, whether a "reasonable alternative" or not.
• The test of whether alternatives are reasonable is whether there is rational connection
between the facts found and the choice made. Fuel Safe Wash. v. FERC, 389 F.3d 1313, 1327
(10th Cir. 2004); see also Friends of Marolt Park v. United States DOT, 382 F.3d 1088, 1096
(10th Cir. Colo. 2004). A person is not required to evaluate the consequences of alternatives it
has in good faith rejected as too remote, speculative, impractical, or ineffective. Assns. Working
for Aurora's Residential Env't v. Colorado DOT, 153 F.3d 1122, 1130 (10th Cir. Colo. 1998).
Cost of an alternative is a reasonable factor to consider. FERC, 389 F.3d at 1324.
Both of the Commissioners who voted in favor of the Application (Ochsner and
Berryman) tried to educate the other three that standard G was limited to "reasonable"
alternatives:
Chairman Ochsner:
"Right. And that's up to the board to decide is, did they go far enough?
Yes, they had -- they had some sites that did not work out, they did contact
people but it's up to -- at this point, they have -- the applicant has said they
have exhausted all of their options. It is up to us as the board to decide if
under G, Section 23-2-400, if all reasonable alternatives have been met."
Commissioner Berryman:
• "And I think, you know, the operative word here, to me, would be
"reasonable alternatives." (Transcript, p. 110, Ins. 9-19.
{00560388/2} - 6 -
•
The Planning Commission's misinterpretation of Standard 23-2-400(G) ... or at least the
misinterpretation made by one or more of the three who voted against the Application ... must be
corrected by the Board of County Commissioners. If even one of the three Commissioners who
voted against the Application by misinterpreting standard (G) had changed his vote then the
Application would have been approved by the Planning Commission.
4. The Board of County Commissioners has jurisdiction to hear and decide this
appeal in Case No. USR-1629.
Centex claims that the Board of County Commissioners has no jurisdiction to hear this
matter. Of course, Centex does not want the Commissioners to review the facts, see the strengths
of the Application, and see the confusion and mistakes made by the Planning Commission.
However, making the claim that this Board has no jurisdiction in this case is absurd.
Centex relies upon Section 23-2-340 for the argument that the Planning Commission, not
the County Commissioners, have final say on this case. Centex ignores the express language of
Section 23-2-340, as well as the remainder of the Weld County Code and state law.
• The Weld County Code specifically addresses the duties of the Board of County
Commissioners when considering an application for a major facility of a public utility. It reads:
Section 23-2-350. Duties of Board of County Commissioners.
The Special Review Permit duties of the Board of County Commissioners
for a Major Facility of a Public Utility or Public Agency are limited
according to the provisions of Section 30-28-110, C.R.S. and the Home
Rule Charter.
Colorado state statute C.R.S. 30-28-110 which is referenced in Section 23-2-350 of the
Weld County Code specifically addresses what happens when a County Planning
Commission disapproves an application for the location of a structure of a utility.
(b) In case of disapproval, the commission shall communicate its
reasons to the board of county commissioners of the County in which the
public way, ground, space, building, structure, or utility is proposed to be
located. Such board has the power to overrule such disapproval by a vote
of not less than a majority of its entire membership. Upon such
overruling, said board or other official in charge of the proposed
construction or authorization may proceed therewith.
C.R.S. 30-28-110(b).
{00560388/2) - 7 -
•
Please note that the foregoing state statute is specifically referenced in the Weld County
Code in describing the duties of the Board of County Commissioners when evaluating a Special
Review Permit (Section 23-2-350).
Equally important, the Home Rule Charter of Weld County must be reviewed because of
the additional reference to it in Section 23-2-350 concerning the duties of the Board of County
Commissioners when reviewing a Special Review Permit. The Home Rule Charter of Weld
County provides at Section 3-8 in discussing the powers and duties of the Board of County
Commissioners that:
"Act as a Board of Appeals to hear complaints on actions taken by county
boards, commissions and departments. Procedure for appeals shall be as
set forth in the Administrative Code or by resolution of the Board. No
person shall be denied the right to appeal, provided they comply with the
administrative procedures established by the Board."
Section 3-8(n), Article 3 Board of County Commissioners, Weld County Home Rule Charter.
The foregoing provision of the Home Rule Charter minors the provisions of the Code
• which provide that the Board of County Commissioners shall act as a board of appeals to hear
complaints on actions taken by County boards, commissions and departments. See Section 2-4-
10(A).
Equally important, Centex ignores the express language of Section 23-2-340 which reads:
"The Planning Commission has final permit review authority for a Major
Facility of a Public Utility or Public Agency as described in Section 23-2-
300 above."
As directed by the foregoing provision, you must look to Section 23-2-300 which
expressly provides:
"If the Planning Commission disapproves an Application for a Special
Review Permit for said Development or Use, the Planning Commission's
disapproval may be overruled by the jurisdictional body or official making
the Application. The Planning Commission's disapproval may be
overruled by said body by a vote of not less than a majority of its entire
membership or by said official." Section 23-2-300(A).
This language in the Weld County Code mirrors the language of the state statute C.R.S. 30-28-
110 (see above); Centex did not bring the complete language of 23-2-340 to your attention.
•
(00560388/2} - 8 -
•
The procedure for perfecting an appeal to the Board of County Commissioners is set forth
at Section 2-4-10(A) which provides that the appeal must be taken within 60 days of the decision
of the lower board or commission. Section 2-4-10(A). Here, the decision of the Planning
Commission was rendered following the hearing on January 15, 2008. The Applicant filed the
appeal with the Clerk to the Board on March 14, 2008, within the 60 days permitted by the Weld
County Code. Contrary to the claim from Centex, the appeal is timely.
The Board of County Commissioners of Weld County has jurisdiction to hear this appeal
and the Planning Commission does not have the final say on a Special Review Permit as
suggested by Centex. Colorado State Statute 30-28-110(b) makes it absolutely clear that if this
Board of Commissioners overrules the Planning Commission "said board or other official in
charge of the proposed construction or authorization may proceed therewith." The Board of
County Commissioners has the final say.
5. The standard of review by the Board of County Commissioners is not Rule
106(a)(4); it is to hear all available facts pursuant to Section 2-4-10(D) and
then by majority vote either overrule or sustain the Planning Commission's
recommendation.
• Centex argues that in reviewing this case, the Board of County Commissioners should
apply the criteria of whether the Planning Commission "exceeded its jurisdiction or abused its
discretion" based on the Colorado Rules of Civil Procedure 106(a)(4). Centex's argument
compares apples (court procedures) to oranges (regulatory procedures).
Rule 106(a)(4) is the criteria which a District Court in Colorado is directed to use under
the Colorado Rules of Civil Procedure to decide whether a remedial writ under Rule 106 should
be issued to a governmental body. This criteria is not applicable to an administrative regulatory
review by a Board of County Commissioners.
Please note that the Centex argument on the Application of Rule 106(a)(4) relies on cases
where a court, not a Board of County Commissioners, applied the criteria of"exceeded
jurisdiction or abused its discretion." There is no reported court case in Colorado which
indicates that review of a case by a Board of County Commissioners is restricted to applying the
106(a)(4) criteria. The Weld County Code does not state anywhere that the criteria to be applied
by this Board is "exceeded jurisdiction or abused discretion."
The express language of Rule 106(a) provides that it pertains to "relief... obtained in the
district court." Rule 106(a). Moreover, the Colorado Supreme Court has held that "Rule 106
applies only to relief sought in the district courts." Gen. Aluminum Corp. v. Arapahoe County
District Court, 165 Colo. 445, 446 (Colo. 1968).
•
{00560388/2} - 9 -
.
Even Colorado's courts do not and could not use the "exceeded jurisdiction and abused
discretion" criteria of Rule 106(a)(4) when appellate procedures already exist. Kirbens v.
Martinez, 742 P.2d 330 (Colo. 1987). The reason is that a Rule 106(a)(4) review is extraordinary
and therefore is not applicable when an appellate procedure exists. Weld County has an appeals
procedure to the Board of County Commissioners which is established by the Weld County Code
and by state statutes. See Point 4 above. Thus, the Rule 106(a)(4) criteria are not applicable.
The appeals procedure by which the Board reviews the decision of the Planning
Commission is clearly set forth in the applicable state statute and Weld County Code. First, the
Appeals Process identified in the Weld County Code states:
"D. The Board of County Commissioners shall hear all the available
facts ... " (Section 2-4-10(D)).
After hearing all the available facts, the Board of County Commissions can sustain or overrule
the Planning Commission. Both Colorado state statute C.R.S. 30-28-110 and the Weld County
Code at Sections 23-2-300(A) and 23-2-330 give the Board the "power to overrule" the Planning
Commission's decision on an Application to construct a public utility structure.
• Centex would have you read this state statute and Weld County Code so that your power
to overrule is limited only to a finding that the Planning Commission exceeded its jurisdiction or
abused its discretion. Such limitation does not appear in C.R.S. 30-28-110(b); Section 23-2-
300(A) or Section 23-2-350. Indeed, reading such a limitation into those procedures is
inconsistent with this Board's "power to overrule" and is inconsistent with the appeals process by
which you are to hear "all available facts." Since the Board is an appeals tribunal with an
appellate procedure, the Rule 106(a)(4) criteria are not applicable.
It is apparent that the Planning Commission did not think that its decision was the final
word on the Application. The Resolution of the Weld County Planning Commission expressly
states that it "recommended unfavorably" and later states "recommends that this request be
denied." See Resolution evidencing the "recommendation" of denial which is attached at Exhibit
B to the Applicant's Amended Complaint. Now, this Board must decide whether to sustain or
overrule that recommendation.
•
(00560388/2) - 10 -
•
Respectfully submitted this id day of May, 2008.
ROTHGERBER JO N & LYONS LLP
R' r . lark, #2753
Mark A. Meyer, #26176
1200 17th Street, Suite 3000
Denver, CO 80202
Telephone: 303-623-9000
Facsimile: 303-262-9222
Attorneys for Applicant United Power, Inc.
•
•
{00560388/2) - 11 -
•
CERTIFICATE OF SERVICE
I hereby certify that on this /011 day of May, 2008, a true and correct copy of the
foregoing RELY TO CENTEX HOMES' RESPONSE was served via hand delivery, addressed as
follows:
Weld County Board of Commissioners
The Clerk to the Board's Office
Attn: Esther E. Gesick
915 10th Street, 3rd Floor
Centennial Center
Greeley, CO 80631
And also served by placing the same in the U.S. Mail, first class postage prepaid, addressed as
follows:
Bruce T. Barker, Esq.
Weld County Attorney's Office
• 915 Tenth Street
P.O. Box 758
Greeley, CO 80632
David W. Foster, Esq.
Foster Graham Milstein& Calisher LLP
621 17th Street, 19th Floor
Denver, CO 80293
•
(00560388/2) - 12 -
•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Case Number: USR-1629
Appeal Pursuant to § 2-4-10 of Denial of Site Specific
Development Plan and Use by Special Review
Applicant: A. DALE SLATER TRUST B (UNITED
POWER)
RESPONSE TO MOTION TO STRIKE ALL NEW EVIDENCE -
SUBMITTED BY APPLICANT ON APPEAL THAT IS NOT
PART OF THE ORIGINAL PLANNING COMMISSION RECORD
Applicant A. Dale Slater Trust B through United Power, Inc. ("Applicant") files this
Response To Motion To Strike All New Evidence Submitted By Applicant On Appeal That Is
Not Part Of The Original Planning Commission Record ("Motion to Strike").
• On May 16, 2008, Centex Homes and Liberty Ranch Homeowners Association, Inc. filed
the Motion to Strike. Since Centex Homes has not built and sold more than a majority of the
homes in Liberty Ranch, it controls the Liberty Ranch Homeowners Association. Thus, this
Response collectively refers to Respondents Centex Homes and Liberty Ranch Homeowners
Association as "Centex."
The Motion to Strike filed by Centex cannot be granted, for the following reasons:
1. The Motion to Strike is based on a standard of review that is contrary to applicable law
and the Weld County Code.
Respondents' Motion to Strike seeks to strike the admission of certain evidence based in
part upon its assertion that Colorado Rules of Civil Procedure Rule 106(a)(4) and the standard of
review thereunder (exceeding jurisdiction or abuse of discretion) apply to this matter. However,
Rule 106 and its related standard of review are not applicable to the matter at hand. As set forth
in greater detail in Applicant's Reply to Centex Homes' Response, Rule 106(a)(4) is the criteria
which a District Court in Colorado is directed to use under the Colorado Rules of Civil
Procedure to decide whether a remedial writ under Rule 106 should be issued to a governmental
body. The Board of County Commissioner's hearing is not a court proceeding, rather it is an
administrative regulatory review by such board.
• The Colorado Supreme Court has held that "Rule 106 applies only to relief sought in the
district courts." Gen. Aluminum Corp. v. Arapahoe County District Court, 165 Colo. 445, 446
{00560905/I}
(Colo. 1968). Moreover, there is no reported case in Colorado which indicates that review of a
case by a Board of County Commissioners is restricted to applying the 106(a)(4) criteria. As
such, Rule 106 is not analogous or applicable to this matter.
Even Colorado's courts do not and could not use the "exceeded jurisdiction and abused
discretion" criteria of Rule 106(a)(4) when appellate procedures already exist. Kirbens v.
Martinez, 742 P.2d 330 (Colo. 1987). The reason is that a Rule 106(a)(4) review is extraordinary
and therefore is not applicable when an appellate procedure exists.
The Weld County Code clearly identifies the standard of review for the Board of County
Commissions to follow with respect to the information to be submitted and reviewed:
"D. The Board of County Commissioners shall hear all the available
facts ... " (Section 2-4-10(D)).
The standard submitted by Centex is inconsistent with the appeals process by which the Board is
to hear "all available facts." Since the Board is an appeals tribunal with an appellate procedure,
the Rule 106(a)(4) criteria are not applicable.
• Applicant incorporates herein by reference all arguments and authority set forth in
Sections 4 and 5 of the Reply to Amended Complaint filed by Applicant.
2. The duty of the Board of County Commissioners to hear all relevant facts is not
discretionary, but rather is required.
The appeals process verbiage set forth in Weld County Code Section 2-4-10(D) dictates
that the "Board of County Commissioners shall hear all the available facts . . . (bold lettering
added). " It should be noted that additional language within Section 2-4-10(D) itself provides
that the Board "may" schedule a second hearing for the work. As such, it is clear that words
"shall" and "may" were purposefully placed with such code section with the intent of making
certain aspects obligatory while making others discretionary. The wording of Section 2-4-10(D)
gives the Board an affirmative obligation to review all available facts on this matter.
3. Applicant has submitted relevant facts and information to assist the Board of County
Commissioners in carrying out its duties and to clarify matters previously considered by the
Planning Commission.
The documents and information submitted by Applicant as part of the appeals process
have been to clarify for the Board of County Commissioners the matters previously discussed at
the Planning Commission hearing. Applicant has not submitted an entirely new set of
circumstances that was absent or missing from the original Planning Commission record. No part
• of the Transcript of the Planning Commission meeting states that Applicant merely forgot to
address a certain issue, element or criterion that was required to be presented in its Application.
(00560905/I} - 2 -
•
As such, Applicant is in line with providing the Board of County Commissioners with "all
relevant facts" relating to the matters previously discussed by the Planning Commission.
4. The Motion to Strike filed by Centex is overly broad and aims to strike evidence
that is contained in documents and testimony submitted as part of the Planning Commission
process. A substantial portion of the information submitted as part of the appeals process was
part of, included within or relating to the original record or the transcript. The granting of such
motion would unfairly bias the Board of County Commissions to err on the side of exclusion of
evidence currently in the record.
Respectfully submitted this J&" day of May, 2008.
ROTHGERBER NSON & LYONS LLP
Richar . C ark, #2753
Mark A. Meyer, #26176
• 1200 17th Street, Suite 3000
Denver, CO 80202
Telephone: 303-623-9000
Facsimile: 303-262-9222
Attorneys for Applicant United Power, Inc.
•
(00560905/I) - 3 -
CERTIFICATE OF SERVICE
I hereby certify that on this I (i day of May, 2008, a true and correct copy of the
foregoing RELY TO WELD COUNTY COMMISSIONERS was served via hand delivery,
addressed as follows:
Weld County Board of Commissioners
The Clerk to the Board's Office
Attn: Esther E. Gesick
915 10th Street, 3rd Floor
Centennial Center
Greeley, CO 80631
And also served by placing the same in the U.S. Mail, first class postage prepaid, addressed as
follows:
Bruce T. Barker, Esq.
Weld County Attorney's Office
915 Tenth Street
5 P.O. Box 758
Greeley, CO 80632
David W. Foster, Esq.
Foster Graham Milstein & Calisher LLP
621 17th Street, 19th Floor
Denver, CO 80293
,m^ldi
! ACofia______
(00560905/ I) - 4 -
Esther Ges[ck
cm: Debbie Leebove [dleebove@fostergraham.com]
nt: Monday, May 19, 2008 3:38 PM
o: Esther Gesick
Cc: David Foster; Cynthia M. Treadwell; Purdy, Linda
Subject: Supplemental Response to Amended Complaint
Attachments: Supplemental Response To Amended Complaint.pdf
vo
Supplemental
esponse To Amend.
Esther,
Attached is a Supplemental Response to Amended Complaint.
Please submit to the Board of County Commissioners for consideration.
Thank you,
Debbie Leebove
•ecutive Assistant to David Wm. Foster, Partner
Foster Graham Milstein Miller & Calisher
621 17th Street, 19th Floor
Denver, CO 80293
303-333-9810
303-333-9786 Fax
www.fostergraham.com <http://console.mxlogic.com/redir/?
BQj rbarZNPypI04XmA_yhzFflundTWZQkkQrzD4PtPg1 -
gGpY5eRFfUAoWjRnBPgbP5QXCQkQkkSmkNOpJxcScdHb7-
HY9Wug80nZ5GMFVEwDkQg22LMgZ0Qg2111zZB2pKvxYY1NJ4SyrppjvKehhdBgBAleEZybJO>
• EXHIBIT
(1.92 -a4 9
1
Esther Gesick
000m: Debbie Leebove [dleebove@fostergraham.com]
nt: Monday, May 19, 2008 4:21 PM
: mmeyer@rothgerber.com; Bruce Barker
Cc: David Foster; Cynthia M. Treadwell; Esther Gesick
Subject: Supplemental Response to Amended Complaint
Attachments: Supplemental Response To Amended Corn plaint.pdf
PLS
Supplemental
esponse To Amend.
Mark and Bruce,
Attached is a Supplemental Response to Amended Complaint.
I am sending a hard copy to your offices as well.
Thank you,
Debbie Leebove
•ecutive Assistant to David Wm. Foster, Partner
Foster Graham Milstein Miller & Calisher
621 17th Street, 19th Floor
Denver, CO 80293
303-333-9810
303-333-9786 Fax
www.fostergraham.com chttp://console.mxlogic.com/redir/?
TdIIFLT7e9CM0jJgj-96eAZ1VsTvHThhjhKesjdTdE7V2FDMkXmA yhzFflundIIe9K6QkQkkSnTDlNJxcScdHb7-
HY9Wug80nZ5GMFVEwDkQg22LMgZ0Qg2111zZB2pKvxYYlNJ4SyrppjvKehhdHV5FeHYxucX>
•
1
•
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO Case Number: USR-1629
Respondents: Centex Homes
Liberty Ranch Homeowners Association, Inc.
SUPPLEMENTAL RESPONSE TO AMENDED COMPLAINT
Respondent Centex Homes and Liberty Ranch Homeowners Association. Inc.
("Respondents") by their attorneys, hereby submits their Supplemental Response To Amended
Complaint, as follows:
• In its Reply To Centex Homes' Response ("Reply"). United Power attempts to argue
that the Weld County Board of County Commissioners ("Board") has jurisdiction in this matter.
The arguments made by United Power (1) rely on a statute that does not apply under the present
circumstances and (2) incorrectly cite the applicable portions of the Weld County Code ("Code")
addressing Planning Commission review of an application for Site Specific Development Plan
and Use By Special Review for a Major Facility of a Public Utility or Public Agency. As a
result, United Power's Reply cannot be allowed to stand unanswered and Respondents offer the
following supplemental Response concerning Board jurisdiction:2
There were actually two Respondents,Centex Homes and Liberty Ranch Homeowners Association, Inc.and
thus the Response was filed on behalf of both Centex Homes and the residents of Liberty Ranch.
2 This Supplemental Response To Amended Complaint is offered subject to and without waiving all
• jurisdictional objections raised in Sections 11 and Ill of Respondents' Response To Amended Complaint. All such
objections are incorporated by reference as if fully set forth herein.
•
I.
C.R.S. §30-28-110 DOES NOT VEST THE BOARD WITH JURISDICTION
In its Reply, United Power contends that C.R.S. §30-28-110 vests the Board with
jurisdiction over this matter. Reply at pp. 7-8. However, United Power is incorrect. Reading
this statute, in its entirety, it is apparent that its language presupposes the final authority of a
board of county commissioners concerning land use determinations for a public utility. That is
not the case here and thus the statute neither applies nor supports the premise cited by United
Power. As set forth in Respondents' Response To Amended Complaint, pursuant to Code §23-2-
340, the Planning Commission has actually been vested with final permit review authority for
Site Specific Development Plan and Use By Special Review for a Major Facility of a Public
Utility or Public Agency. Weld County has carved out and specifically delegated that power to
the Planning Commission.
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CODE §23-2-340 IS CONSISTENT WITH THE RELEVANT SECTION OF CODE §23-2-
300 WHICH SPECIFIES A SINGLE HEARING BEFORE THE PLANNING
COMMISSION FOR THIS KIND OF LAND USE APPROVAL
In its Reply, United Power accuses Respondents of"not bringing the complete language of
Code §23-2-340 to [the Board's] attention." Reply at p. 8. Specifically,United Power highlights the
fact that the language of Code §23-2-340 vests the Planning Commission with final permit review
authority for a Major Facility of a Public Utility "as described in Code §23-2-300." Id.
United Power then goes on to quote only the last sentence of Code §23-2-300, which United
Power purports to offer in support of Board jurisdiction,as follows:
If the Planning Commission disapproves an Application for Special Review Permit
for said Development or Use, the Planning Commission's disapproval may be
overruled by the jurisdictional body or authority making the Application. The
Planning Commission's disapproval may be overruled by said body by a vote of not
less than a majority of its entire membership or by said official.
It is interesting that United Power accuses Respondents of selective quotation, as this is
• specifically what United Power has done in advancing its rebuttal argument. In reality, the
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provisions of Code§23-2-340 are completely consistent with applicable provisions of Code§23-2-
300 in vesting the Planning Coumnissim, with sole and exclusive decision-making authority
concerning the land use determination at issue.
Code §23-2-340 states:
. . . The Planning Commission has final permit review authority for a Major Facility
of a Public Utility or Public Agency as described in Section 23-2-300 above.
The relevant provisions of Code §23-2-300, which were not quoted by United Power,
similarly provide for a single hearing before the Planning Commission for this kind of land use
delerminatimn, as follows:
. . . Any proposed Major Facilities of a Public Utility of Public Agency which requires a
Special Review Permit and which is initiated by . . . any public utility whether publicly or
privately owned,shall require review and approval by the Planning Commission only.
(emphasis added).
As with the statute addressed in Section i hereof. the Code language quoted by United
• Power does not apply in this instance. Rather,the above provisions control,and United Power, as a
public utility, has had the single hearing before the Planning Commission to which it is entitled.
The language used in the Code (I) granting the Planning Commission final decision-making
authority and (2) specifying review and approval of this particular type of land use determination
solely by the Planning Commission makes clear that the Board lacks jurisdiction to hear the present
appeal.
•
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•
Dated this 19th day of May, 2008
FOSTER GRAHAM MILSTEIN MILLER
&)CALIS R, LLP
Da id n. Foster(No. 27283)
Cyn tia . Treadwell (No. 28868)
621 1 'th 'treet, Suite 1900
Denver, Colorado 80293
Telephone: (303) 333-9810
Facsimile: (303) 333-9786
Anorneys.Jin Responden/.s Centex Homes and
Liberty Ranch Homem hers Association. Inc.
•
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this 19`h day of May, 2008, a true and correct
copy of the foregoing RESPONSE TO OBJECTION TO APPEAL CRITERION was
served by email and sent via United States Mail, First Class postage prepaid, as follows:
Weld County Board of County Commissioners
Clerk of the Board's Office
Attn: Esther E. Gesick
915 10th Street, 3rd Floor
Centennial Center
Greeley, Colorado 80631
e-mail: egesickaco.weld.co.us
co.weld.co.us
Bruce T. Barker, Esq.
Weld County Attorney's Office
915 Tenth Street
P.O. Box 758
Greeley, Colorado 80632
4111 E-mail: bbarker@co.weld.co.us
Richard K. Clark, Esq.
Mark A. Meyer, Esq.
Rothgerber, Johnson & Lyons, LLP
1200 17th Street, Suite 3000
Denver, Colorado 80202
e-mail: mmeyer(�rothgerber.com
Debbie Leebove
Executive Assistant to David Wm. Foster
•
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Esther Gesick
rom: Mark Meyer[mmeyer@rothgerber.com]
nt: Monday, May 19, 2008 3:56 PM
o: Esther Gesick
Cc: Richard Clark
Subject: Re: USR#1629 Appeal Case File- Dale A. Slater Trust/ UnitedPower(E-mail #2)
Ms. Gesick:
The following individuals will need to be added to the agenda as speakers for United
Power:
Speakers:
1. Richard K. Clark of Rothgerber Johnson & Lyons LLP
2. Dean Hubbuck, Manager of Consumer Relations and Electric Design for United Power
3 . Donald W. McDaniel, Engineering Supervisor for United Power
4. Jason S. Maxey, District Area Representative for United Power
If questions arise for these individuals:
5. Dr. Robert L. Pearson: Vice President in Industrial Systems Group of CH2M Hill
6. Stanley F. Sessions
Please confirm that you received these names and that they will be listed on the agenda.
Thank you.
Mark A. Meyer, Esq.
Rothgerber Johnson & Lyons LLP
4,00 17th Street, Suite 3000
nver, Colorado 80202
Phone: (303) 623-9000
Facsimile: (303) 623-9222
E-mail: "mmeyer@rothgerber.com"
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