HomeMy WebLinkAbout20081529.tiff HEARING CERTIFICATION
DOCKET NO. 2008-31.A
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 June 4, 2008, at 9:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner Robert D. Masden, Pro-Tem
Commissioner William F. Garcia
Commissioner David E. Long
Commissioner Douglas Rademacher-. EXCUSED
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 Resolutions which amended the hearing date and
established the criteria for review, a public hearing was conducted on May 21, 2008, to consider
oral arguments for appeal of the A. Dale Slater Trust B and United Power, Inc., concerning 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 of the Weld County Code, in the A(Agricultural)Zone District.
At said hearing, due to a tie vote, the Board deemed it advisable to continue the matter to
June 4, 2008, to allow adequate time for Commissioner Jerke to review the written and recorded
testimony and make a determining vote. On June 4, 2008, Bruce Barker, County Attorney, made
this a matter of record. He stated the Board first considered whether the matter may be appealed,
which resulted in a tie vote, therefore, Commissioner Jerke reviewed the written materials and
recorded proceedings and is prepared to make a determination today. He explained if it is
determined that an appeal will be allowed,then the Board must determine what criteria will be used
in considering the appeal. Lastly, Mr. Barker stated once the criteria is established, the Board may
schedule a hearing date.
Chair Jerke stated he reviewed the written information, as well as the recorded testimony,and was
presented with a very interesting debate. He stated his decision is based on the finding that there
are State statutes which allow for an appeal to the Board of County Commissioners, as well as the
Home Rule Charter which also allows for the appeal of any Planning Commission decision. He
stated, in 1976, a Charter form of government was established for Weld County, which allows the
Board to make decisions about the form of governance to be observed, as long as it is not directly
in opposition to State statute. He stated it results in governing at the local level and keeping
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policies and decision making open to public scrutiny. Based on his previous comments, Chair
Jerke voted to oppose the motion and accept the jurisdiction of the Board of Commissioners to
hear the appeal, therefore, the motion failed three to two, with Commissioners Rademacher and
Garcia in support.
Mr. Barker advised all parties involved that Commissioner Rademacher is excused, which may
result in another tie vote. Dick Clark, Rothgerber Johnson and Lyons, represented the appellant
and indicated they would like to proceed today. Commissioner Long moved to accept jurisdiction
of the appeal. Commissioner Masden seconded the motion. Commissioner Garcia requested a
roll call vote, and the motion carried three to one, with Commissioner Garcia opposed.
David Foster, Foster Graham Milstein Miller and Calisher, LLP, noted that his clients will continue
to object to proceeding with this matter. Mr. Barker stated the previous Resolution of the Board
indicated the Board would not allow additional evidence and only review the record provided at the
Planning Commission hearing on January 15, 2008. However, that issue is also being contested
by the appellant.
Mr. Clark stated the Board is currently only addressing what criteria should be applied in reviewing
the appeal issue. He stated the criteria is set forth in Section 2-4-10 of the Weld County Code,
which establishes the appeals process, and pursuant to that provision,the Board acts as the Board
of Appeals. He stated the appellant did file a complaint within 60 days which stated the basic facts.
He stated Section 2-4-10.D indicates, upon proper notification, the Board shall hear all of the
available facts from parties in support and opposition. He further stated the Board was initially
counseled to conduct an appeals hearing to determine whether the decision of the Planning
Commission was an abuse of discretion or exceeded its jurisdiction, which he feels is contrary to
the Colorado Revised Statutes(C.R.S.). Mr. Clark stated Section 30-28-110.B, C.R.S.,addresses
the denial of a Major Facility of a Public Utility and states the Board of Commissioners has the
power to overrule the disapproval of the Planning Commission, and upon overruling, the project
may proceed. He explained the Home Rule Powers Act indicates that Planning Commission
decisions and the determinations of the Board of Appeals must be done in accordance with
Section 30-28-110, C.R.S. He stated if the Board only reviews testimony regarding the abuse of
discretion exceeding jurisdiction,then it is simply determining whether the matter should be referred
back to the Planning Commission to review the matter without exceeding its jurisdiction or abusing
its discretion. However, he is convinced the Board of Appeals has the power to uphold the
Planning Commission decision, or to overrule it, allowing the appellant to proceed with the project
as proposed. Mr. Clark stated it is important for the Board to look at all of the facts. He stated only
five of the nine Planning Commission members were present on January 15, 2008, and there were
disagreements and misinterpretations regarding the relevant standards and procedures. As a
result, certain testimony regarding condemnation rights and claims regarding decreased property
values was allowed. He stated that discussion should not have been allowed under the established
criteria,and they were not prepared to offer counter evidence on the matter,therefore,the Planning
Commission only heard one side of the issue. Mr. Clark stated United Power has conducted
additional research in rebuttal to the previous statements that were made, and they feel the Board
should hear all available facts.
Mr. Foster stated United Power applied for the Use by Special Review Permit and was fully aware
of what the standards were. He stated this is not the time to feel sorry for the applicant, rather, the
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Board must now determine the appropriate process for reviewing the appeal. He stated, based on
citations from State statute, the Home Rule Charter, and Weld County Ordinances, there is
adequate evidence that the Planning Commission is the "only" and "final decision maker."
Mr. Foster stated accepting jurisdiction on the appeal does not provide opportunity for making a
different decision, rather, the Board must determine whether, or not, the Planning Commission
decision was consistent with Rule 106 regarding the abuse of discretion or exceeding jurisdiction.
He stated the process does not allow for an additional full hearing simply because United Power
now has more evidence to present that they wish they had submitted earlier. Rather, the Board
must determine whether there was enough evidence in the record for the Planning Commission
to make an appropriate decision. Mr. Foster stated he does not believe the regulations allow for
a substitute decision. He stated it is clear that there is some confusion between the regulations;
however, upon review of the Planning Commission transcript, it was made clear during that hearing
that the Planning Commission was to be the final decision maker in the matter.
Commissioner Garcia clarified Mr. Clark has suggested Section 2-4-10 of the Weld County Code
should be used as a guide for criteria in the matter, whereas, Mr. Foster is asserting the Board
should rely on the evidence as it was presented to the Planning Commission in determining
whether the Planning Commission acted accordingly or made a jurisdictional error. He stated the
fact finder should not be the Board of Appeals, rather, it is the Planning Commission, and he does
not support allowing additional evidence. He stated it was made clear that the Planning
Commission was to make the final decision; however, the Board has since determined that it will
hear the appeal to determine whether the Planning Commission made its decision using the
appropriate facts. He further summarized Mr. Clark is suggesting additional facts should be
presented in order for the Board of Appeals to make a subsequent ruling.
Chair Jerke stated it appears Mr. Foster is suggesting the Board should decide whether the
Planning Commission decided in error, whereas, Mr. Clark is suggesting the Board should review
the entire case and making its own final determination, as the Board of Appeals, to uphold or
overturn the Planning Commission decision. Mr. Barker agreed that those are the two positions
which have been presented. He stated Home Rule counties have certain powers to set forth how
its governing will happen; however, the Home Rule Charter also refers to State law. With that in
mind, he referred to Section 4-4 of the Home Rule Charter, which states a utility provider may
appeal the decision of the Planning Commission to the Board of Commissioners. That direction
appears to be in conflict with Section 30-28-110, C.R.S., which states the Planning Commission
shall make a final determination, not just a recommendation. He stated upon review of various
Memorandums drafted by the County Attorney who counseled the drafters of the Home Rule
Charter, it was concluded that State law superceded the Charter, and Section 23-2-300 of the Weld
County Code was cited, which establishes the process for a Planning Commission determination.
He further stated the issue of an appeal is addressed in Section 30-28-110.B, C.R.S., which states
the Board may either uphold or overrule the Planning Commission decision. However, be believes
the Board must also consider subsection (3), which is also referred to in Section 23-2-300,
establishing the intent that any decision may be overruled by other political subdivisions. He
explained it continues to state the appeal of a county decision may be considered by the Public
Utilities Commission. He stated he reviewed all of the information, upon the request of United
Power for an appeal of the Planning Commission's decision, and the only criteria he could find was
that the Planning Commission made the final determination and the appeal before the Board is to
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determine whether the Planning Commission acted accordingly,or if it should reconsider the matter
to correct any deficiencies.
Chair Jerke questioned what the Board of Appeals should look for in determining whether the
Planning Commission acted accordingly. He stated he is more comfortable with hearing a full case
and making his own determination. Commissioner Masden agreed; however, it appears the Board
is in a position to make a determination on how the Planning Commission ruled. Mr. Barker stated
that was his recommendation, as approved by the Board in its resolution dated May 21, 2008;
however, as proposed by Mr. Clark, and expressed by Chair Jerke, the Board could hear a full
case.
Mr. Clark stated United Power is prepared to make oral arguments on the standards and criteria
to be applied in making a determination regarding the jurisdiction of the Planning Commission.
However, he stated the Board of Commissioners is not accustomed to hearing judicial criteria
regarding the abuse of discretion and exceeding jurisdiction. He stated he disagrees with
Mr. Barker, with respect to hearing an appeal based on the criteria of abuse of discretion and
exceeding jurisdiction. Responding to Commissioner Garcia, Mr. Clark stated the term "incident"
is vague and unusual; however, he feels that in this case it refers to the application. He stated the
writers' intent was likely to try and cover all potential appeal scenarios.
Commissioner Long stated he is interested in the outcome and the interest of the public. He stated
the Board represent the citizens, and this decision will impact their lives. He stated although he
may not think from a legal perspective, he views the matter from a common-sense standpoint, and
he supports hearing all of the available facts, in order to make a prudent decision. He further
stated he does not want the Board to get caught in the legal confusion in making a determination
that may be contrary to public interest.
Chair Jerke concurred, although he does not want to be accused of not following the intent of the
law. He stated it appears the framers of the Home Rule Charter intended for the Board to act as
a Board of Appeals, and now the Board must consider how much testimony to allow and review.
He stated in the interest of good government, he prefers to be fully informed and conduct a full
hearing. He stated he would prefer to vote "yes" or "no" on the matter, rather than making a
determination as to whether the Planning Commission acted inappropriately.
In response to Commissioner Long, Mr. Barker clarified Chair Jerke has suggested conducting a
full hearing to allow all evidence in making a final determination, which will still be subject to a
challenge in court.
Commissioner Garcia stated the rules regarding the appeals process are common in his legal
background; however, that is not the case in this instance. He stated Section 2-4-10.D of County
Code is very different in that in states the Board shall hear all available facts pertaining to the
incident. He noted the appellant asserts the "incident" is the application, whereas, and the
opponent claims the "incident" refers to the Planning Commission decision. He stated the
language is very open for interpretation and it is likely the framers intended for a broader
interpretation, therefore he is relying on "hearing all available facts."
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Commissioner Masden stated there appears to be a conflict between the criteria of the Charter and
State statute, therefore, he prefers to make a ruling based on all available facts.
Commissioner Masden moved to set a hearing date to consider 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. In response to Chair Jerke, Mr. Barker stated the Board will hear
all the facts presented by the applicant and members of the public, both written and oral testimony,
as well as considering the record as it currently exists, which also allows for new evidence and
conducting a hearing de-novo. Commissioner Long seconded the motion. Following discussion,
Esther Gesick, attending Clerk, proposed scheduling a hearing on June 25, 2008, at 10:00 a.m.,
and the parties indicated they can attend. Upon a call for the vote,the motion carried unanimously.
There being no further discussion, the hearing was completed at 11:15 a.m.
This Certification was approved on the 9th day of June, 2008.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
ATTEST: ia
WELD COUNTY, COLORADO
`L '% �G,
(` ) 'tiilliam H. Jerke, Chair
Weld County Clerk to the " d
4- XCUSED DATE OF APPROVAL
/ Robert D. Masden ?ro-Tem
BY' ', �
Deputy Cle to the Board / �/- �'
(
kiiiilli F. Garcia
((
04
David E. Long /
EXCUSED
Douglas Rademacher 6
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