HomeMy WebLinkAbout20081527.tiff HEARING CERTIFICATION
DOCKET NO. 2008-31
RE: ORAL ARGUMENTS FOR APPEAL OF PLANNING COMMISSION DENIAL OF A SITE
SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1629 FOR
A MAJOR FACILITY OF A PUBLIC UTILITY OR PUBLIC AGENCY (ELECTRICAL
SUBSTATION), SUBJECT TO THE PROVISIONS OF SECTION 23-4-420 OF THE WELD
COUNTY CODE, IN THE A (AGRICULTURAL) ZONE DISTRICT - A. DALE SALTER
TRUST B / UNITED POWER, INC.
A public hearing was conducted on May 21, 2008, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner Robed D. Masden, Pro-Tern
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Michelle Martin
The following business was transacted:
I hereby certify that pursuant to a notice dated April 4, 2008, and duly published April 9, 2008, in
the Fort Lupton Press, and pursuant to subsequent Resolutions which amended the hearing date
and established the criteria for review, a public hearing was conducted to consider oral arguments
for appeal of the A. Dale Slater Trust B and United Power, Inc.,concerning 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 of the Weld County Code, in the A (Agricultural) Zone District. Chair Pro-Tem
Masden made this a matter of record. Bruce Barker, County Attorney, stated this is an appeal of
a land use matter which was denied by the Planning Commission; however, he advised the
appellant's representatives that they have the option of continuing this matter to a date when the
full Board will be present. However, if they decide to proceed today, it will require three affirmative
votes, or in the case of a tie vote, Commissioner Jerke will listen to the record and make the
determining vote. Dick Clark, Rothgerber Johnson and Lyons, LLP, indicated they would like to
proceed today.
Mr. Barker stated the Board has been presented with the entire written record from the Planning
Commission, as well as a transcript of the discussion from January 15, 2008. He stated this matter
previously came before the Board on April 21, for the purpose of setting a hearing date and
determining the appeal criteria. Mr. Barker reviewed the contents of a packet which was presented
to the Board, including the Amended Complaint to Commissioners, Objection to Appeal Criterion,
Response to Objection to Appeal Criterion, Supplemental Response to Amended Complaint, Reply
to Centex Homes'Response, Response to Amended Complaint, Motion to Strike all New Evidence
Submitted, e-mail correspondence from Peyton Ellington, and a Response to Motion to Strike all
New Evidence. Procedurally, Mr. Barker stated the Resolution from April 21, 2008, set the criteria
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for appeal to determine whether the Planning Commission exceeded its jurisdiction or abused its
discretion. He stated the opponents of the proposal are questioning whether this matter can be
appealed,and if so,what is the criteria. Mr. Barker explained the Weld County Home Rule Charter,
Section 3-8(d), makes provision for the Board of Commissioners to act as a Board of Appeals on
actions taken by various County boards and departments, and he read the specific text for the
record. He stated Section 2-4-10 of the Weld County Code provides an appeal process, and he
finds that there is the allowance for appeal pursuant to the Home Rule Charter. He stated there
is no specific criteria for this type of appeal, therefore, he followed proposed criteria similar to that
used in a grievance procedure or appeal of impact fees, both of which come before the Board for
review. He further stated the criteria is similar to a 106-type of appeal regarding the determination
of whether a body exceeded its jurisdiction or abused its discretion.
David Foster, Foster Graham Milstein Miller and Calisher, LLP, represented Centex Homes and
the Liberty Ranch Homeowners'Association. He stated it is important to discuss whether there is
a need for this hearing today. He stated the Weld County Code has provisions that give the
Planning Commission final discretion and permit authority on this type of application, pursuant to
Sections 23-2-340 and 23-2-300. He stated Section 23-2-340.C states if an application is approved
by the Planning Commission, the plat must be recorded to notify the public within a three-mile
radius. He stated at the Planning Commission hearing, Mr. Barker stated, on several occasions,
that the Planning Commission had final review authority. He stated the hearing lasted
approximately three hours and the Planning Commission made its decision. In response to
Commissioner Garcia, Mr. Foster stated Sections 2-4-10 and 2-4-50 provide a catch-all process
for appeals when a particular situation is not addressed; however, in this case the Code is specific
and the appeal process does not apply. He stated the applicant did have 30 days to appeal to
Court under Rule 104.
Mr. Clark stated the applicant is proposing to construct a major facility of a public utility, therefore,
it falls under a unique procedure under Chapter 21, Division V. He stated Mr. Foster has
referenced Section 23-2-340,which refers to Section 23-2-300.A, and that particular section states
approval by the Planning Commission constitutes a final decision; however, if the decision is denial,
it does not prohibit the appeal process. He proceeded by stating Section 30-28-110.A, C.R.S., is
referenced in the Weld County Code, which indicates a recommendation for denial must be
communicated to the Board of Commissioners to act as a Board of Appeal, which has the power
to uphold the decision or overrule the denial and approve the application. He further stated if the
decision is overruled,the applicant may they proceed with the project without the matter going back
before the Planning Commission. Mr. Clark stated the Home Rule Charter says that Board shall
act as a Board of Appeals, and the Charter is also addressed in State statute provision. He stated
the Planning Commission Resolution, dated January 15, 2008, contains a recommendation of
denial to the Board of County Commissioners, citing specific reasons. In response to
Commissioner Garcia, Mr. Clark reiterated, if approved,the Planning Commission decision is final;
however, if denied, the utility has the opportunity to appeal, because utilities are necessary and
protected under State statute. Responding further to Commissioner Garcia, Mr. Clark stated he
is not aware of any similar case law that addresses the criteria to be used; however, the appeal
procedure is recognized state-wide.
Responding to Commissioner Rademacher, Mr. Barker stated the Planning Commission voted to
deny the application with a vote of three to two. He explained the Board has the right to grant the
appeal, deny the appeal, or grant it in-part and send the matter back for further proceedings. He
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further stated, if the grant appeal is based on a finding of abuse of discretion or jurisdiction, then
the matter should be referred back to the Planning Commission to take further evidence and
remedy the problem with its decision. Mr. Foster stated the process referred to in
Section 30-28-110, C.R.S., would be conclusive if Weld County were not a Home Rule County.
However, he stated that section does not reference the exclusive authority of the Planning
Commission,rather, in Weld County the Home Rule Charter gives specific authority to the Planning
Commission. He stated Section 110 is very broad and the Home Rule Charter establishes
additional standards. He further stated allowing the appeal to take place is a violation of due
process, since the applicant has introduced new evidence without providing notice. Responding
to Commissioner Long, Mr. Barker stated it will not be a problem if the Board does not take
additional evidence; however, if evidence is accepted, then the matter will need to go back before
the Planning Commission for a recommendation, preceded by the usual notice and posting. He
stated notices were sent to adjacent land owners prior to this hearing; however, this is only an
appeal hearing and the Board does have the authority to refer the matter back to the Planning
Commission to take further evidence.
Mr. Barker stated he agrees Section 30-28-110.A indicates that approval by the Planning
Commission constitutes a final decision;however,the following subparagraph(B)indicates a denial
may proceed before the Board of Commissioners to consider an appeal. He stated he agrees the
Charter gives authority to the Planning Commission only, and the appeal process should be used
to review the Planning Commission record to determine whether it acted appropriately. He stated
the last sentence of Section 30-28-110 states if a ruling is overturned, then the utility may proceed
therewith. He stated the Code is set up so the "entity or official" can overrule the decision, to
address situations where other jurisdictions request a utility within Weld County. He stated if the
Planning Commission were to deny their request, then a governmental entity could overrule the
decision of the County, which does not apply in this situation. He stated, in this case, he felt a
review of the record is appropriate, allowing both parties to state their position. Alternately, the
Board may decide to hear the matter and either uphold or overturn the decision based on its own
findings.
Commissioner Long stated as he reviews the Home Rule Charter, it includes multiple opportunities
for public input,thus every other land use decision is afforded a recommendation from the Planning
Commission. In the case of a Major Facility of a Public Utility,the Code specifically states approval
by the Planning Commission is deemed a final decision; however, it does not preclude the
opportunity for appeal in the event of a denial. He stated he feels it would be appropriate to
consider whether the Planning Commission acted accordingly, or not.
Commissioner Garcia questioned if the request had been approved whether the parties which are
opposed to the utility would have had the same opportunity for appeal. He stated it appears the
Planning Commission had sole jurisdiction, and either party could have appealed to District Court,
not the Board of Commissioners, therefore, he declines the opportunity to appeal the decision.
Commissioner Rademacher stated the Weld County Code states one thing, whereas, the Home
Rule Charter says another. He stated the Planning Commission voted to deny the application, and
it was not a split vote, therefore, he does not want to grant an appeal.
Commissioner Masden stated both sides have valid points;however,he agrees with Commissioner
Long and feels that there is an appeal process and he would like to send the matter back to the
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Planning Commission to be reheard. Mr. Barker stated the Board of Commissioners must
determine whether the appeal should be allowed, and, if so, then hear testimony to determine what
criteria will be considered in determining whether it should sent back to the Planning Commission.
Commissioner Rademacher moved to deny the jurisdiction to hear the appeal based on arguments
from counsel. Commissioner Garcia seconded the motion. Upon a call for the vote, the motion
tied, with Commissioners Long and Masden opposed. Commissioner Masden stated as a result
of a tie vote, Chair Jerke will review the record when he returns and render a determining vote.
Mr. Barker stated the time allowed for a continuance is determined by the amount of time required
for Commissioner Jerke to return and review the record. He stated the parties have invested a lot
of time, and it would be in the interest of all to schedule a date certain. Following discussion,
Commissioner Rademacher moved to continue the matter to June 4, 2008, at 9:00 a.m., to allow
adequate time for Commissioner Jerke to review the record. Commissioner Garcia seconded the
motion.
In response to Mr. Foster, Mr. Barker explained Commissioner Jerke will return, review the record,
and make his determination at the hearing on June 4, 2008. He stated it is important to have all
parties available, in the event the appeal is allowed, and then argue the appeal criteria. Mr. Clark
stated timing on this issue is important because United Power cannot continue to serve the growing
population in the area without this additional facility. He stated if the appeal hearing is allowed,
then the Board will hear the arguments regarding the two positions regarding the criteria: 1) hear
all available facts from the applicant and opposition; or 2)apply the Court's 106 standard for abuse
of discretion or exceeded jurisdiction. Mr. Barker stated on June 4, 2008, all parties will need to
be prepared to proceed with determining the criteria and then proceed under those rules.
Responding to Commissioner Garcia, Mr. Barker stated the Board must first make a determination
regarding the criteria,and then do the appropriate posting and notice for a subsequently scheduled
hearing. Mr. Barker stated the applicant relied on his finding that an appeal process was available,
therefore, if Commissioner Jerke votes in opposition to jurisdiction for the appeal, he does not feel
that should be held against United Power and that Rule 106 should be allowed. Mr. Clark stated
Rule 106 allows 30 days to appeal a decision; however, based on Mr. Barker's finding, the
applicant proceeded with this appeal process. He stated if CommissionerJerke decides not to hear
the appeal, United Power will not have any remedy. Mr. Foster disagreed, based on their reliance
on his decision that there was an appeal process. Mr. Clark stated regardless of Mr. Barker's
representation, they will be subject to the Court's interpretation of the Code that there is a 30-day
deadline for filing an appeal under Rule 106. He stated this issue will likely be discussed in court
and he wanted the matter made part of the record at this proceeding, depending on the position
of Commissioner Jerke. Mr. Foster stated he was not aware that Mr. Barker had made a definitive
representation regarding the appeal process, and they will deal with that issue, if necessary. There
being no further discussion, the hearing was adjourned at 11:45.
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This Certification was approved on the 28th day of May, 2008.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
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' ', �tl illi m H. Jerke, Chair
Weld County Clerk to the b
" t '\\ Robert D. Masden, Prro--TTem—
BY:
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Deity Cler' . the Board
William F. Garcia
EXCUSED DATE OF APPROVAL
David E. Long
EXCUSED DATE OF APPROVAL
Douglas Rademacher
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