HomeMy WebLinkAbout20062789.tiff HEARING CERTIFICATION
DOCKET NO. 2006-69
RE: CHANGE OF ZONE, PZ#1094, FROM THE A(AGRICULTURAL) ZONE DISTRICT TO
THE PUD (PLANNED UNIT DEVELOPMENT) ZONE DISTRICT FOR NINE (9)
RESIDENTIAL LOTS WITH E (ESTATE)ZONE USES, ALONG WITH CONTINUING OIL
AND GAS PRODUCTION AND 32.23 ACRES OF OPEN SPACE - ED ORR
A public hearing was conducted on November 1, 2006, at 10:00 a.m., with the following present:
Commissioner M. J. Geile, Chair
Commissioner David E. Long, Pro-Tem
Commissioner William H. Jerke
Commissioner Robert D. Masden - EXCUSED
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Chris Gathman
Health Department representative, Pam Smith
Public Works representative, Jesse Hein
The following business was transacted:
I hereby certify that pursuant to a notice dated October 6, 2006, and duly published October 11,
2006, in the Fort Lupton Press, a public hearing was conducted to consider the request of Ed Orr
for Change of Zone, PZ#1094, from the A(Agricultural)Zone District to the PUD (Planned Unit
Development) Zone District for nine (9) residential lots with E (Estate) Zone uses, along with
continuing oil and gas production and 32.23 acres of open space. Bruce Barker,County Attorney,
made this a matter of record, and advised the applicant's representative, Robb Casseday,
Casseday Creative Designs, LLC, that he has the option of continuing this matter to a date when
the full Board will be present. However, if he decides to proceed today, it will require three
affirmative votes, or in the case of a tie vote, Commissioner Masden will listen to the record and
make the determining vote. Mr. Casseday indicated he would like to proceed today.
Chris Gathman,Department of Planning Services,stated there is a mineral owner who is requesting
this matter be continued. In response to Chair Geile, Mr. Gathman stated the most recent
correspondence between the parties indicates they have discussed the outstanding issues and the
applicant still wishes to proceed. He presented a brief summary of the proposal, entered the
favorable recommendation of the Planning Commission into the record as written,and gave a brief
description of the location of the site and surrounding land uses. Mr.Gathman stated the proposal
includes 11.65 acres of open space consisting of a pond, and there is a single family residence
located one-quarter of a mile west of the site, as well as another home situated across State
Highway 392. He stated the pond is a recharge pond for the New Cache La Poudre Irrigating
Company,and there is an agreement between the applicant and the Lower Poudre Augmentation
Company,which will allow for use of the water by the applicant for fire suppression on the site. He
further stated the site will be serviced by the North Weld County Water District and septic systems.
Mr. Gathman stated the applicant has also entered into agreements with the New Von Gohren
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Lateral Ditch Company and the Graham Drainage Ditch Company to pipe and redirect the water
flow around the subdivision. He stated initially there was an oil and gas drilling window indicated on
the plat, which impacted the design of Lot 1; however, it was later determined that the drilling
window was in the wrong location,therefore,the redesign of Lot 1 was no longer an issue and the
Condition of Approval was removed by the Planning Commission. Mr.Gathman stated 17 referral
agencies reviewed the proposal, and 14 responded with comments that have been addressed in
the Conditions of Approval. He stated this proposal is considered an urban scale development,
since it is in close proximity to the Sunny View Acres,Seeley Lake, Pinnacle Park,and Faith Estates
Subdivisions; however, the Planning Commission recommended the curb/gutter/sidewalk
requirement be waived, since this development will only have nine lots. He stated the site is not
within an Urban Growth Boundary;however,it is within the three-mile referral area for the Town of
Eaton and City of Greeley. Mr.Gathman stated the City of Greeley indicated the block length is not
adequate,and the proposed single access does not meet City standards for fire protection,unless
all of the homes are sprinkled. He stated the Town of Eaton expressed no conflict with its interests,
and the Geotechnical Report indicated there is no evidence of a commercial mineral deposit on the
property. In response to Chair Geile,Mr.Gathman stated the site is within the Eaton Fire Protection
District,and he is uncertain why the City of Greeley is making fire sprinkling requests. Responding
to Commissioner Jerke, Mr. Gathman reiterated the City of Greeley's primary concern dealt with
allowing one access into the site from State Highway 392 for emergency purposes,which resulted
in the fire suppression comment. Chair Geile commented there has been discussion between the
City of Greeley and the Town of Eaton regarding demarcation, and Mr. Gathman stated he is
uncertain as to any understanding regarding the location of a demarcation line.
Pam Smith, Department of Public Health and Environment, stated the minimum lot size is
2.5 acres, and the overall density is one septic system per 7.3 acres. She stated the primary and
secondary septic envelopes on Lot 4 have been adjusted so they no longer overlap into the pipeline
easement. She further stated the percolation test done in June 2005,indicated shallow groundwater
along portions of the eastern property line,which may require engineered septic systems on some
of the lots,otherwise she anticipates conventional systems. Responding to Commissioner Vaad,
Mr. Gathman stated the recharge pond in the center of the development will drain surface water to
the groundwater. Ms.Smith stated as each lot is developed, site-specific percolation tests will be
required. She stated each lot will have lake frontage,with walkout basements,which will likely place
the septic systems on the walkout side,closer to the lake. She stated the soil is good, but grading
and individual lot development will dictate whether an engineered system is necessary.
Jesse Hein, Department of Public Works, stated the site is located south of State Highway 392,
therefore,the applicant will need to work with the Colorado Department of Transportation(CDOT)
to obtain an access permit,which will be required at the time of Final Plan. He stated the applicant
is requesting a waiver from the requirement for curb/gutter/sidewalk,and if approved,the internal
road will consist of two twelve-foot paved lanes and four-foot gravel shoulders. He further stated
the maximum cul-de-sac length is 1,500 feet; however, the City of Greeley does not support the
proposed design. Mr. Hein indicated the locations of the two ditches crossing the property, and
stated the applicant is working with both Ditch Companies to move the drainage easements and
convey the water around the lots. He stated the applicant will be required to show evidence of water
rights to hold the water on the property, and staff has requested evidence of on-site and off-site
historic flows; however,these are issues that can be finalized at the time of Final Plan,as outlined
in the Conditions of Approval. Responding to Chair Geile,Mr.Hein stated the Draft Resolution does
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not contain a Condition requiring an access permit from CDOT. Commissioner Long stated the
CDOT referral indicates the access permit has already been issued. Mr. Hein stated although the
access permit is in place, the applicant will still need to submit evidence that no additional
improvements are needed. Responding to CommissionerJerke, Mr.Hein stated the streets will be
privately maintained.
Mr. Casseday stated this case was started with a different planner,and the transition has created
some confusion for staff. He stated he will provide a copy of the access permit from CDOT, and
there are signed and recorded agreements with the New Van Gohren Lateral Ditch Company and
the Graham Drainage Ditch Company. He further stated due to the existence of a seepage ditch
on the site,the applicant has worked extensively to relocate the ditches,and he indicated the outline
of the proposed lake. He stated the excavated material from the lake site will be used for grading
elsewhere on the property. Mr.Cassedaystated the applicant intends to develop high-end homes
along the lake frontage. He stated the access from State Highway 392 does meet CDOT
requirements for separation from intersections; however, the access is near an irrigation canal,
therefore,the lots had to be situated further south. He further stated the streets will not be privately
maintained, rather they will be dedicated to the County for maintenance. Mr.Casseday stated the
street design does not meet City of Greeley standards; however, it is likely that the site will be
annexed by the City in the future. He explained the cul-de-sacs were used along the exterior of the
property to maintain views,and the placement lends to good future connectivity. He stated almost
half of the site will consist of open space,and without accounting for the pond,30 percent if the site
will still be open space, including a walking trail around the PUD. He further stated Noble Energy
initially informed the applicant that the well had been plugged and capped and that all rights had been
abandoned in 1997. Therefore,the applicant pursued discussions with the No. 2 Ditch Company
to discuss the possibility for a recharge facility and creating a water feature which could also be
used for irrigation and fire suppression. He stated the Eaton Fire Protection District is reviewing the
proposed system for transferring water from the lake to a hydrant. He further stated the North Weld
County Water District is capable of supplying one-half of the overall supply,and the remainder will
come from the lake. Mr. Casseday clarified the southern drill window is located in the southeast
corner of the site and will not impact Lot 1. He stated the proposal does not encumber Noble
Energy's ability to drill on the site. He further stated other than the initial indication that the well had
been plugged and capped, he did not hear from Noble Energy until two days before the Planning
Commission hearing. He stated the Planning Commission agreed that Noble Energy had no rights
left to exercise, and discussed the possibility of removing the drill windows from the plat.
Responding to Chair Geile, Mr.Cassedaystated Noble Energy has the ability to exercise its rights
on this site, therefore, the Board should not have to arbitrate the matter. Responding to
Commissioner Jerke, Mr. Casseday stated there is a drill window within the recharge pond which
was capped and abandoned, and the other drilling window is not within the subject property. He
further stated the recharge pond will be used for augmentation, with the source of water coming
from the New Cache La Poudre Irrigation Companyto recharge the basin. He stated there is some
concern about seepage around the pond, therefore, the applicant is attempting to mitigate the
problem with the recharge pond. He explained the seepage ditch will be abandoned,and piped to
the pond. Responding further to Commissioner Jerke, Mr. Casseday stated the ditch on the west
carries irrigation water through a canal, and it will also be converted to a sealed pipe system. He
noted that the applicant has entered into an agreement with both Ditch Companies.
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Responding to CommissionerJerke, Ed Orr,applicant,stated the water right is a junior water right
filed in a 1990 court case by the New Cache La Poudre Irrigation Company. He stated the Company
will own the water right, and will receive recharge credits. He further stated the water right allows
them to keep the system full constantly, and they also have the ability to add senior water into the
system. Mr. Orr stated, as the property owner, he has the right to use the pond for storage of his
own senior water rights. He further stated he owns 50 acre feet, which will be transferred to the
Homeowners' Association when he is no longer associated with the property. Responding to
Commissioner Vaad, Mr. Casseday explained the proposed fire suppression system will consist
of a manhole/pump with a suction line at the recharge pond which will connect to a hydrant. He
stated the treated water will be delivered through a standard hydrant system throughout the
development. In response to Chair Geile, Mr. Casseday, stated there will be a bypass valve to
ensure delivery if a portion of the fire suppression system is interrupted or fails,and the Eaton Fire
Protection District has also indicated it will take responsibility to supplement the water supply with
its trucks.
Kenneth Adams,surrounding property owner to the south,stated he is not opposed to the Change
of Zone;however,he did express concern with seepage from the proposed lake,since he owns an
operating farm to the south. He stated when the No.2 Ditch is running,the groundwater comes to
the surface,and he requested the applicant consider lining the pond. Mr.Adams further stated the
access is just past a hill, and suggested a turnoff lane be required as a safety measure for trucks
which are unable to slow quickly enough if several cars are backed up trying to enter the site.
John Gerry, surrounding property owner to the south, stated the water does flow/seep toward the
south end of the property. He expressed concerned with seepage, and stated he supports
converting the Von Gohren and the Graham ditches to a piped system. Mr. Gerry stated he has
lived in the area since 1925,and he gave a general summary of the Von Gohren Ditch system which
serves the area.
Susan Aldridge,Noble Energy, Inc.,requested a continuance to allow additional time to work through
an agreement with the applicant as to where to drill the well. She stated if the drill window remains
on the plat,then there is no concern;however,if it is removed,then Noble Energy is opposed to the
request and will continue to pursue the matter in court. In response to Chair Geile, Ms. Aldridge
stated the litigation is specific to the property in Section 24. She stated Noble Energy has attempted
to work with Mr. Orr to resolve the lawsuit, and they were surprised that the proposal was being
pursued while negotiations were still underway. She requested the window remain on the plat, or
that the case be continued until the matter has been resolved between the parties.
Responding to Chair Geile, Mr. Barker stated the litigation will not have an effect on the Board's
decision. Rather, the decision of the Board is whether to require the applicant to make adequate
accommodation for drilling. He stated if the abilityto develop minerals is given,the planning process
should give consideration for placement of future drilling so that it does not adversely affect future
residents. Ms.Aldridge stated negotiations will continue with Mr.Orr,and based on the ruling of the
Colorado Oil and Gas Conservation Commission, there is a drilling window which happens to be
within the proposed recharge basin. She stated Noble Energy intends to exercise its rights to drill
in the window whether it is reflected on the plat, or not.
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Barry Myhr, Noble Energy Landman,stated there is no drill window in the center of Section 24;only
a 400-foot by 400-foot window in the center of the Southwest quarter, Northeast quarter(SW 1/4
NE1/4),which is the window of contention. He reviewed the locations of the remaining drill windows,
and stated Noble Energy is concerned with the location of the proposed small lake which will hinder
use of the drill window. Mr.Myhr stated Noble Energy is willing to locate a site and directionally drill
to the bottom of the drill window,with the applicant's agreement to reimburse Noble Energy for the
additional cost. Responding to Chair Geile, Mr. Myhr stated the company typically enters into a
Surface Use Agreement with the adjoining land owner for a directional drill; however,the property
to the east is also owned by Mr. Orr. Responding to Commissioner Jerke, Mr. Myhr stated the site
is within the Rule 318 boundary, and Noble Energy has taken the position that it only desires one
drilling site on the property. Ms.Aldridge stated if a Surface Use Agreement for directional drilling
cannot be negotiated,then Noble Energy maintains its right to drill within the subject window. She
further stated Noble Energy maintains that it has the lease rights and has not abandoned its drilling
rights.
Mr. Gerry stated Merit Energy indicated the well was probably abandoned since it quit producing;
however, they do have the option of drilling deeper for additional resources.
Mr. Casseday stated the recharge pond will be dug to the shale layer to facilitate seepage at a
deeper elevation than what currently exists to address seepage onto the Adams property. Chair
Geile recessed the matter until 1:30 p.m.to allow the applicant and Noble Energy representatives
to meet and attempt to come to a resolution on the drilling window issue.
Upon reconvening,Mr.Casseday stated the applicant has agreed to leave the drill window reflected
in the center of the quarter section as notification of potential surface use by Noble Energy;however,
there is still some disagreement on an operations area. He clarified there is litigation as to the
drilling rights,therefore, he withdrew his statement regarding Noble Energy's lack of a right to drill.
In response to Commissioner Long,Mr.Casseday stated all parties have agreed that the northern
drilling window is not necessary on the plat. Ms.Aldridge stated they agree that the window should
be shown, but with the window comes the practical use of the window for drilling a well, including
rights of access,flow lines,and an operations area. She stated the plat should be clear that Noble
Energy has the rights to access the window and drill a well. She stated a continuance will allow
Noble Energy to continue to work with the applicant fora directional drill. Mr.Myhr stated the oil and
gas operations areas are dependent upon setbacks, and the ideal area would be a 300-foot by
400-foot footprint for the drill rig. He stated after the well is drilled, a 150-foot setback radius is
required from development in a low-density area,as well as an access point,flow line points,and
an area to locate the production facility. Ms.Aldridge stated to the extent the court determines Noble
Energy has the right to operate, it appears the applicant would not be opposed to the operations
areas or the access; however, until such time, the applicant does not want the zoning documents
to reflect the potential for an oil and gas use.
William G.Crews,Crews and Zeren,represented the applicant and stated the Board can do nothing
about the issues of contention. He stated under Rule 318 of the Colorado Oil and Gas Conservation
Commission,a drill window is simply a designated area for a straight drilling hole,and has nothing
to do with bottom hole location. He stated if the court case determines Noble Energy does have
lease rights,then they may drill from anywhere as long as they end up at the bottom hole location.
Mr. Crews stated this hearing is the forum for providing notification to future property owners that
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there may be oil and gas activities in the general vicinity. Mr. Barker stated in the Estate or
Residential Zone Districts,oil and gas production activities require a Use by Special Review Permit
(USR);however,in this case the notice did include"continuing oil and gas operations,"therefore an
additional USR permit will not be needed since it will already be allowed under this permit, if
approved.
Responding to Commissioner Long, Mr. Barker stated if the plat is not recorded, the oil company
will complete a straight drill;however,if the plat is approved,the lake and lots will be created,which
requires directional drilling or straight drilling, which will impact the future lot owners to provide
access to the oil rigs.
Responding to Chair Geile, Mr. Casseday stated he and the applicant have reviewed and concur
with the Conditions of Approval. Chair Geile referenced Condition of Approval#2.B and stated it is
the general understanding of the Board that the Homeowners' Association is responsible for
maintenance of the streets. Mr. Casseday concurred and retracted his previous statement
regarding maintenance by Weld County. In response to Chair Geile, Mr. Gathman concurred that
Condition of Approval #6.G should be corrected to replace "Mountain View" with "Eaton Fire
Protection District."
In response to Chair Geile, Commissioner Jerke stated he supports the request for an
Administrative Review, with the understanding that oil and gas interest must be accommodated.
Mr. Barker suggested adding Condition of Approval#1.A.7 to state,"The plat shall show the southern
oil and gas drilling window and an access easement to provide access to operations by the
appropriate oil and gas company within the drilling window." Ms.Aldridge requested the addition of
the phrase,"and appropriate operations areas." Mr.Gathman questioned how large the operations
area will be, and how it may impact the surrounding lots. Mr. Barker clarified the operations must
be contained to the drilling window. Commissioner Vaad commented if the drilling area and
adequate operations areas must be accommodated,the applicant also has the option of altering the
lake shoreline to make accommodation. Commissioner Jerke concurred. Commissioner Vaad
moved to approve the addition of Condition of Approval#1.A.7 as proposed. CommissionerJerke
seconded the motion, which carried unanimously.
Commissioner Vaad stated the testimony has provided adequate finding that
Sections 27-6-120.D.5.a through 5.h have been met, and therefore, he moved to approve the
request of Ed Orr for Change of Zone, PZ#1094,from the A(Agricultural)Zone District to the PUD
(Planned Unit Development)Zone District for nine(9)residential lots with E (Estate)Zone uses,
along with continuing oil and gas production and 32.23 acres of open space, based on the
recommendations of the Planning staff and the Planning Commission, with the Conditions of
Approval as entered into the record. His motion included the addition of Condition of Approval#1.A.7
and granting the request for an Administrative Review of the Final Plan. The motion was seconded
by CommissionerJerke,and it carried unanimously. There being no further discussion,the hearing
was completed at 2:05 p.m.
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This Certification was approved on the 6th day of November 2006.
APPROVED:
�4 E L BOARD OF COUNTY COMMISSIONERS
v �� WELD COUN , COLORADO
ATTEST: �� r. ��, St
71 M. . ile, Chair
Weld County Clerk to th
David E. Long, Pro-Tem
Depu Clerk • he Board '
William H. Jerke
TAPE #2006-39 EXCUSED
Robe,�Masdeyf
DOCKET#2006-69 `//��
Glenn Vaad
2006-2789
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EXHIBIT INVENTORY CONTROL SHEET
Case PZ#1094 - ED ORR
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 03/07/2006)
D. Clerk to the Board Notice of Hearing
E. Planning Staff Memorandum re: Items required Prior to
Scheduling, dated 08/29/2006
F. Applicant New Von Gohren Ditch Company
Relocation Agreement, dated 06/08/2006
G. Clearwater Engineering, LLC Memorandum re: NP Irrigation System with
Fire System Capacity, dated 07/21/2006
H. Eugene Reiber Letter of Concern, dated 08/11/2006
I. New Cache La Poudre Irrigating Co. Letter re: Augmentation and Easement
Agreement, dated 08/28/2006
J. Applicant E-mail response re: Waiver of 45-day
scheduling deadline, dated 09/06/2006
K. Beatty and Wozniak, P.C. Letter of Concern, dated 10/31/2006
L. Planning Staff Certification and Photo of sign posting
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