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WELD COUNTY, COLORADO
BOARD OF COUNTY COMMISSIONERS MEETING
OCTOBER 19, 2005
PROBABLE CAUSE HEARING CONCERNING STIPULATION
FOR USE BY SPECIAL REVIEW PERMIT NUMBER 1495 FOR
JESS ARAGON DOING BUSINESS AS TIMBERROCK
LANDSCAPING
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2005-0860
2
1 MR. JERKE: -- second planning item we'll
2 hear probable cause hearing concerning stipulation
3 for use by special review permit number 1495 for
4 Jess Aragon doing business as TimberRock
5 Landscaping. Michelle, are you going to present?
7 MR. MORRISON: Well, let me make an
8 introductory statement.
9 MR. JERKS: Okay.
10 MR. MORRISON: Mr. Chairman, this is
11 pursuant to the stipulation of the parties in case
12 number 04CV259 and that is in your record.
13 Essentially, it provides a standard for temporary
14 operation of the facility prior to the
15 consideration of a special-use permit during this
16 season. The relevant provision -- it essentially
17 takes some standards that might commonly be found
18 in a special-use makes them a temporary
19 condition of the operation. What's most relevant
20 in terms of procedure are paragraphs B and C which
21 provides that if the operators do not follow the
22 standards that the County can ask the Court for an
23 order vacating the interim authority to operate and
24 to reinstate provisions essentially for them not to
25 operate or to seek penalties under a contempt
3
1 motion, and the decision whether or not to direct
2 our office to proceed with enforcement before the
3 Court is to be made by the Board of County
4 Commissioners, conducted in accordance with the
5 probable cause procedures found in the Weld County
6 Code, section 2-4-40 A through C and E.
7 "The complaining party shall be the Department of
8 Planning Services, having investigated reports
9 of non-compliance, and the Board's decision will be
10 either to decline -- to direct prosecution, to
11 continue the case to a time specific in the future,
— 12 or to direct the County Attorney to proceed to seek
13 finding of contempt, or reinstate the original
14 provision of paragraph five of the stipulated order
15 of July 13th, 2004."
16 "Parties agree that in the proceedings
17 before the Board, the weight of evidence is not
18 necessarily determined by the number of witnesses
19 testifying to a particular fact. "
20 So that is procedurally where you are.
—' 21 It is to be done as a probable cause. It's unusual
22 in the sense that it's -- the result is to direct
23 our office as to whether to proceed back to court
24 or not.
25 MR. JERKE: Lee, just for my
4
1 clarification, let me ask you to start off with,
2 "Is there a complaining party at this point?"
3 MR. MORRISON: Well --
4 MR. JERKE: And if it is, I guess it has
5 to be the Department of Planning Services?
6 MR. MORRISON: -- and Michelle can
7 explain and in part that's set forth in the letters
8 in your packet. The -- most of the alleged
9 violations with a couple of exceptions were based
10 on observations of the neighbors because they were
11 the type of violations that occurred outside of
12 regular work hours and timing was such that staff
13 was not present to corroborate those. So we're
14 dealing strictly with -- with a couple of
15 exceptions, having to do with height of piles,
16 right?
17 MS. MARTIN: Correct.
18 MR. MORRISON: All of the alleged
r, 19 violations are ones that staff is not able to
20 independently corroborate. They took those that
21 appeared to have corroboration within the
22 neighborhood but it -- to make it clear, they
23 weren't able to independently corroborate those.
24 But they are the complaining party by your
25 procedure under the probable cause. All of those
5
1 are always done where the evidence is assembled by
2 staff whether it be health department or planning
3 department, depending on the circumstance and presented
4 to you. But you have -- you know, you need to
5 consider how much weight to give to that evidence
6 based on the circumstances under which it came to the
7 staff.
8 MR. JERKE: Questions, Commissioner
9 Geile?
10 MR. GEILE: If I may. Thank you, Mr.
11 Chairman. Counsel, could you -- starting on page
�- 12 five of what we have in our exhibits on our
13 computer, and go on through seven. It starts on
14 page five, which in essence looks like it's the
15 Court Order --
16 MR. MORRISON: Uh-huh [affirmative] .
--. 17 MR. GEILE: -- of what they can do, and
18 then six and seven are the areas, and eight and
_. 19 nine are the -- I don't know if you call them
20 stipulations or it's a part of the agreement that
21 they have to follow in -- but they do or don't do
22 on the prop -- or maybe I could just ask you the
23 question this way: what does five through nine,
24 what does that have to do with what we're doing
25 today? Could you more or less make a comment for
6
1 the record as to what we're dealing with those? Are
2 we going to be hearing testimony that certain parts
3 of those are in violation or --
4 MR. MORRISON: I believe the only two
5 portions of the stipulation that are alleged to
6 have been violated have to do with number twelve --
7 MR. GEILE: Okay.
8 MR. MORRISON: -- height of the opaques
9 -- I'm sorry -- yeah, number twelve. "Material
10 piles shall not exceed the height of opaque
11 screening. " And number twenty, hours of operation.
12 Michelle, is that correct?
13 MS. MARTIN: Number twenty is correct and
14 number twelve is correct. Yes.
15 MR. MORRISON: So the other twenty-five
16 -- or, the other twenty-three conditions and
17 operation standards were not -- are not alleged to
18 have been violated.
19 MR. GEILE: That's all for me. Thank
20 you, Mr. Chairman.
'— 21 MR. JERKE: Other questions at this point
22 for Lee?
23 MR. MORRISON: There' s one other point I
24 want to make is in terms of fairness to the
25 Respondents, those items that have been identified
0
7
1 by the staff are the ones that you should focus on.
2 In other words, other violations, staffs -- which I
�. 3 assume they're going to summarize, violations other
4 than those that are summarizing have not been
5 appropriately noticed to the operator and therefore
6 should not be considered in your dekuberatuins.
7 MR. JERKE: Okay. Okay, Michelle?
8 MS. MARTIN: All right. Thank you Board.
9 Good morning. On February 16th, 2005, Site
10 Specific Development Plan and Special Review
11 Permit, USR 1495 for a business permitted as a use
12 by right or an assessory use in a commercial zone
13 district, landscaping material yards in the
14 agricultural zone district located in the northeast
15 quarter of Section 8, Township 5, Range 67, and
16 it's highlighted here in black.
17 The case was presented before the Board
18 of County Commissioners. The case was continued
19 until the District Court made a determination on
20 the access road. The Board of County Commissioners
21 instructed counsel to proceed with a stipulation
22 which would allow TimberRock to operate under a set
23 of guidelines. The stipulation was signed by
24 District Court Judge Roger Klein on March 7, 2005.
25 And item C which counsel read to you earlier which
8
1 directs the planning department on what procedures
2 to take which would be the probable cause.
3 Once again, here is the property in the
4 black bold in question and some of the surrounding
5 property owners.
6 On March 28th, the Department of Zoning
7 Compliance noted the stock piles on the property
8 were exceeding the height of the fence. Then on
9 June 13, 2005, the Department of Planning Services
10 and the Department of Zoning Compliance visited the
11 site once again and found the stock piles to be,
12 once again, above the height of the fence.
13 This is a picture, or photograph, that
14 was taken on June 13th of one of the stock piles
15 above the height of the fence.
16 I know this is kind of hard to see, but
17 once again, here's another stacked pile above the
18 height of the fence. Once again, that was taken on
19 June 13th, 2005.
20 The surrounding property owners have
21 documented the applicants are not in compliance
22 with the hours of operation and the use of heavy
23 equipment after hours. Based on the nature and
24 timing of the complaint, staff was unable to
25 independently confirm the violations. Staff has
9
1 reviewed the documentation which consists of
2 pictures, letters, journals and a video and found
3 much of it to be credible to indicate several
4 isolated incidents of the violations.
5 The following I'm going to kind of walk
6 you through of the violations that were noted by
7 the surrounding property owners and the responses
8 from TimberRock.
9 On Saturday, March 19th, Garry
10 Weinmeister [phonetic] noted a semi was parked on
11 the road just east of TimberRock's gate until 5:30.
-. 12 And just to remind the Board of the hours of
13 operation -- just a second -- which is under
14 stipulation item number 20, "Hours of operation
15 shall be from 9:00 A.M. to 5:00 P.M. Monday through
16 Friday, and 9:00 A.M. to 3 :00 P.M. on Saturday and
17 no operation shall occur on Sundays or holidays
18 observed by the State of Colorado. Operations
19 shall be defined to include persons in retail sales
20 from the site, delivery of all product to or from
21 the site, and relocation of product or stockpiles
22 within the site. " It is the intent of this
23 definition that no delivery trucks, whether
24 single-unit or semi tractor- trailer units loaders,
25 including Bobcats or dump trucks, will be in use
10
1 for any reason except during the defined hours of
2 operation. Operations shall not include minor
3 property maintenance such as trash and weed
4 cleanup, landscaping, watering and property
5 maintenance which can be performed by hand or by
6 using the club car, which is defined as the golf
7 cart-type of vehicle. Owner and staff and their
8 personal vehicles may be present on the property
9 outside of operating hours provided none of the
10 above described operations occur."
11 This is a photo that was taken of the
12 truck parked and the truck leaving. So this is the
13 truck parked. Judy Hartstorm [phonetic] also
14 witnessed the semi parked on the road at 3:00 P.M. ,
15 and this is a Saturday when business should be
16 closed at three o'clock. Brad Wheeler [phonetic]
17 stated that he saw the semi parked in the lane from
18 3:08 P.M. to 5:29 P.M. And this is a picture of the
19 truck leaving on the same day.
20 TimberRock responded by stating "semi
21 trucks always exit the site before 5:00 P.M. Monday
22 through Friday and 3 :00 P.M. on Saturday. They're
23 open 9:00 to 3 :00. Semi left at 2:35 P.M."
24 On Thursday, April 7th, Garry Weinmeister
25 witnessed a pickup truck and a trailer and a Bobcat
11
1 pulled out of TimberRock at 5:00 P.M. and parked on
2 the road just east of the gate. It stayed there
3 until sometime between 6:45 and seven o'clock, 7:00
4 P.M. It was about 5:00 P.M. , a dump truck with a
5 tarped load pulling a trailer with a Bobcat left.
6 At 7:05 P.M. the dump truck, trailer and Bobcat
7 returned to TimberRock. This is recorded on video
8 which I will show you in a little bit.
9 Kathy Weinmeister [phonetic] also noted
10 on April 7th that a dump trunk and a Bobcat left
11 this site at 5:08 and returned to this site at 7:05
12 P.M.
13 Brad Wheeler observed a pickup and
14 trailer parked in the lane from 5:10 P.M. until
15 6:45 P.M. , loaded and moved dump truck at 5:30 and
16 the truck returned at 7:05 P.M.
17 TimberRock stated, "No dump trucks exit
18 the site past five o'clock. If a truck ever leaves
19 the yard close to 5:00 P.M. , it does not return to
20 the yard until the following business day after
�— 21 9:00 A.M. " They also state that videos taken by the
22 neighbors are subject to alterations in regarding
23 to time. The last dump truck in at 4:45 P.M. and
24 they're open from 9:00 to 5:00, last dump truck
25 came in back to the site at 4 :45 P.M.
12
1 This is a picture of April 16th, 2005 in
2 which Garry Weinmeister saw a semi parked on the
3 road just east of the gate from 3 :00 to 6:00. He
4 has taken photos and there' s a video of this
5 incident as well. Judy Hawthorne witnessed at 5:36
6 P.M. the semi on the lane with a man on a golf
7 cart. Brad Wheeler also observed a dump truck in
8 at 3:30 P.M. and a semi leaving at 3:35 P.M. and
9 parked in the lane until 6:45 P.M. Then a pickup
10 with a load of rock went out at 4:45 P.M. And here's
11 the truck leaving.
12 TimberRock responded by saying, "the semis leave
13 the site prior to 3 :00 P.M. on Saturday without
14 fail. Business closed at 3 :00 P.M. Jess drove to
15 the mailbox in the golf cart to get mail. Open
16 9:00 to 3:00. Semi left before 3:00. Staff
17 members left by 4:00 P.M. "
18 On Wednesday, May 4th, Garry Weinmeister
19 noticed a semi was parked on the road just east of
20 the gate from 5:00 until approximately 6:00 P.M.
21 Video was recorded which I'll show you in a little
22 bit. TimberRock stated, "This semi never left the
23 site after 5:00 P.M. Video tapes are subject to
24 alteration, and times can be entered manually. "
25 On Thursday, May 5th, Garry Weinmeister
26 was leaving for work at 6:15 A.M. A semi loaded
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1 with flagstone arrived and was parked at
2 TimberRock's gate. Name on the truck was Lafayette
3 Transit, Lafayette, Colorado. TimberRock' s semi
4 was parked on the road until after 7:15 P.M.
5 Pictures and video I can show you. Brad Wheeler
6 noted a semi parked in the lane from 6:30 A.M. to
7 9:00 A.M. The semi parked in the lane from 5:05
8 P.M. until 7:45 P.M. And here's a picture of the
9 semi at night on the same day.
10 On June 15th at 7:45 A.M. , Kathy
11 Weinmeister saw a pickup -- or a truck parked on
12 the road, Morrison Trucking, Fort Lupton. A photo
13 was taken, and here' s that photo.
14 On Saturday, June 25th, Garry Weinmeister
15 noticed a TimberRock truck entering -- or returning
.-. 16 to the site at 3:24 P.M. Another truck returned at
17 3 :28 P.M. and another at 4:05 P.M. This is the
18 photo that was taken. Judy Hawthorne noticed
19 TimberRock's two-ton truck turning south on 47th
20 Avenue in Greeley. It was back in the yard at 4:58
21 P.M. At 4 :58 P.M. , two-ton truck with a
22 trailer license number 726GYM was noticed. Brad
23 Wheeler stated "at 3:05 P.M. , loading truck, truck
24 leaves at 3 :05. Loading another truck at 3 :12, and
25 at 3 :25 P.M. a dump truck returned to the site. "
14
1 Kathy Weinmeister also noticed at 3:05 a truck
2 left. 3:13, a loader was running. 3 :25, dump
3 truck returned to the site. 3:30 P.M. , a dump
4 truck returned and then at 4:05 another dump truck
5 returned.
6 On Friday, July 1st, Garry Weinmeister
7 saw a TimberRock dump truck entering the site at
8 7:36 P.M. A photo was taken. Brad Wheeler noticed
9 a dump truck being loaded at 5:15 P.M. and a dump
10 truck in at 7:35 P.M. Judy Hawthorne also saw
11 TimberRock's two-ton truck parked facing east on
12 future Car Mall Road, just north of Highway 34 on
13 Road 17. No person was seen in the vicinity and it
14 was back at TimberRock at 9:00 P.M. Kathy
15 Weinmeister also noticed at 7:36 P.M. a dump truck
16 returned to the site.
17 This is the video supplied by the
18 surrounding property owners.
._ 19 MR. GEILE: If I may, Michelle, would
20 you tell -- is that a semi that we're seeing there?
21 MS. MARTIN: Yes.
22 MR. JERKE: Okay. Michelle, what day of
23 the week was this again?
24 MS. MARTIN: March 25th. This actually
25 wasn't one of the incidences that I mentioned
15
1 earlier.
2 MR. JERKE: I believe it' s March 21st.
3 MS. MARTIN: Yeah, March 21st. Yeah.
4 MR. MORRISON: Then it's not one that you
5 listed in your letter?
6 MS. MARTIN: No.
7 MR. MORRISON: Well then let's fast
8 forward because one of the things that we just
9 discussed that that' s not relevant to the -- hasn't
10 been properly noticed. I don't mean to -- if you
11 concur, I -- now I -- we need to confine ourselves
12 to those that notice has been appropriately given
13 to the Respondent.
14 MR. GEILE: Well then if I may, while
15 we're waiting for this, are we saying then that
16 what we're heard --
17 MS. MARTIN: One of the dates, I'm sorry,
18 go ahead.
19 MR. GEILE: If I may then, counsel, are
20 we saying that the testimony that we've heard from
21 Michelle on March 19th, April 16th, May 5th, June
22 15th, June 25th, and July 1st have all been -- the
23 applicant has all been notified of those?
24 MS. MARTIN: Correct. All the --
- 25 MR. GEILE: So those -- are those the
26 ones that we're hearing today, those -- the 19th,
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1 April 16th, May 5th, June 15th, June 25th, July
2 1st?
3 MS. MARTIN: Let me just run through
4 those. March 19th, April 7th, April 16th, May 4th,
5 May 5th, June 15th, June 25th, and July 1st.
6 MR. GEILE: And which ones of those do
7 we have video on?
8 MS. MARTIN: We have video on the April
9 7th, April 16th, May 4th, May 5th, and that's all.
10 And I'm going to start with the April 7th, then,
11 which is Thursday. As you can see, there's the
12 semi leaving, and it's bouncing around on the
13 screen.
14 Here's the April 16th deal.
15 MR. JERKE: Michelle, do we have a lot of
16 these to look at? They seem to be pretty similar.
17 MS. MARTIN: We can stop it whenever. We
18 just have a few more.
19 MR. JERKE: All right. I guess seek
20 counsel's advice on do we need to see each time a
21 truck leaves or comes in?
22 MR. MORRISON: You don't need to see
23 repetitive or accumulative evidence. And I think
24 that's within your discretion. Now, I don't know, maybe
25 you can just do a few frames of each relevant date.
17
1 MR. JERKE: Okay.
2 MR. MORRISON: On none of these you can see
3 the logo on the truck, is that correct?
4 Michelle is -- on any of these is it
5 possible to see the logo on the side of the truck?
6 MS. MARTIN: No, I don't believe so.
7 UNKNOWN FEMALE: I think that's it.
8 MR. MORRISON: Just to make it clear, if
9 you accept this into evidence, you're only doing it
10 on the dates -- for the dates which include those
11 that Michelle read the list of.
12 MR. JERKE: Okay.
13 MS. MARTIN: Therefore, the Weld County
14 Department of Planning Services has determined that
15 the following conditions of approval, as stated in
16 the stipulation dated March 7th, 2005, are not in
17 compliance which was stipulation number 12,
18 "Material piles shall not exceed the height of the
19 opaque screening, " and number 20, which are the
20 hours of the operation.
21 At this time I can answer any questions
22 you may have.
23 MR. JERKE: I have a question for you,
24 Michelle, and Lee. I guess, would be commission intent
25 with respect to hours of operation. I guess to me
18
1 that's something that we probably ought to talk
2 about. I don't know what the intention was from
3 everyone else. I guess my intention had to do with
4 whether or not you're having retail operations and
— 5 whether or not you're having people coming in and out on
6 those open hours of, say, 9:00 to 5:00. I don't
7 know that I was as hard fast with respect to a
8 truck coming in ten minutes after 5:00 on a weekday
9 when the gates were basically closed to the public.
10 I don't know of any business that has to conduct
11 themselves quite to that level and so that's
12 something I at least want to bring up as to what
13 our intent would have been with respect to open
14 hours.
15 MS. MARTIN: And one thing that we did
16 take into consideration when we did receive the
17 packets or journals and letters from the
18 surrounding property owners noting the violations
19 is we didn't take the minor ones: 10 minutes, 5
20 minutes in and out of -- because people' s clocks
21 can all differ. It had to be 20 minutes or more
22 that we started to analyze considering those to be
23 major violations and started to look at those and
24 the photos and the videos and take everything into
25 consideration, so it wasn't just the little
19
.., 1 violations which the surrounding property owners,
2 if you wanted to, you could read all of their
3 letters. They have noted every single one of
4 those.
5 MR. MORRISON: Well --
6 MR. JERKE: Go ahead, Lee.
7 MR. MORRISON: Yeah, I mean, you should
8 refer to the -- the way this was arrived at is that
9 the Board gave general direction, if I recall then,
10 I negotiated with the Respondent the language
11 based on what I divined the Board's intention as a
._ 12 group to be.
13 MR. JERKE: You "divined?"
14 MR. MORRISON: So it's not a direct --
15 the Board itself did not craft this language, but
16 what we excluded from a violation is operations
17 should not include minor property maintenance such
18 as trash and weed cleanup, landscape watering and
19 property maintenance which can be performed by hand
20 or by using a club car. And the owner and staff
21 may be present on the property outside of operating
22 hours." And then further it says, "no operations --
23 operations shall be defined to include in-person
24 retail sales from the site, delivery of all
25 products to or from the site, and relocation of
20
1 product or stockpiles within the site. It is the
2 intent of the definition that no delivery trucks,
.- 3 whether single unit or semi-tractor trailer units
4 loaders, including Bobcat types or dump trucks,
5 will be in use for any reason except during the
6 defined hours of operation.
7 MR. JERKE: Commissioner Geile?
8 MR. GEILE: Yeah. Michelle, on -- so we
9 have violations on 3/19, 4/7, 4/16, 5/4, 5/5, 6/15,
10 6/25 and 7/1. Each one of those violations, let's say,
11 is an example. The one on March 19th, when was
12 TimberRock notified of the violation? Were they
13 notified right after the violation occurred or did
14 we accumulate all these and notify them at once, or
15 how did we do that?
16 MS. MARTIN: Well we -- yeah, we received
17 a packet from the surrounding property owners and I
18 can research to figure out exactly when we did
19 receive --
20 MR. GEILE: But yeah, my only question is
21 did we --
22 MS. MARTIN: Once we got the packet we
23 did, then, notify TimberRock these are the
24 complaints that we have received from the
25 surrounding property owners and we asked them to
21
1 respond and --
2 MR. GEILE: Could you give me the dates
._ 3 when that happened, please?
4 MR. MORRISON: It was done in a group, it
5 was not done --
6 MS. MARTIN: Individually.
7 MR. MORRISON: -- each individual one.
8 MR. GEILE: And that was done when?
9 MR. JERKE: Was it after July 1st?
10 MS. MARTIN: I don't think that they --
-
11 MR. JERKE: I guess the big question
12 Commissioner Geile would be asking, did TimberRock
13 have any way of knowing that they -- did TimberRock
14 have any way of knowing that there was alleged
15 violations going on until they would have received
16 information from you concerning the entire package
17 of violations.
18 MS. MARTIN: I was just informed that on
19 May 9th is when we received the packet -- the first
20 packet from the surrounding property owner, and on
21 June 17th, we received the responses from
22 TimberRock.
23 MR. GEILE: But May 9th was the first
24 packet?
25 MS. MARTIN: That we received, correct.
22
1 And we notified TimberRock shortly after they came
2 in and made copies and then they responded. Second
3 packet was received by the Department of Planning
4 Services on July 6th, shortly after we notified
5 TimberRock and we never received responses from
6 them. So hopefully that --
7 We also -- not only the responses from
8 the surrounding property owners, but the two
9 violations that Weld County staff has noted was
10 March 28th and June 13th and notice was given on
11 those days.
— 12 MR. GEILE: Thank you.
13 MS. MARTIN: You're welcome.
14 MR. JERKE: Commissioner Vaad?
15 MR. VAAD: Yeah, I don't know who to ask
16 this of, but either Lee or Michelle. Is the status
17 of the road and the access issue, is that a settled
18 question now?
— 19 MR. MORRISON: No.
20 MS. MARTIN: No, it's not. It should be
21 December 21st of this year when it goes to the
22 judge.
23 MR. MORRISON: It goes to trial on that
24 date, and that will be an issue in the next part of
25 the proceedings as to whether when and whether to
23
1 schedule the USR. But that's the date of trial,
2 not -- there's a possibility of a decision that day
3 or sometime after that. But the road is not a
4 decided issue. I think Mr. Zier can address it further.
5 MR. JERKE: Commissioner Vaad?
6 MR. VAAD: Can you rehearse briefly then
7 what is the issue to be decided subsequent to the trial
8 on the 21st of December.
9 MR. MORRISON: The issue in the trial or
10 the issue --
-
11 MR. VAAD: Yes, about the status of the
12 road?
13 MR. MORRISON: Well, I would invite Mr.
14 Zier to fill in if -- but essentially, I understand
15 that the parties other than those representing
16 TimberRock are contending that TimberRock lacks the
17 right to use the road to access the property. Or
18 -- I mean, that would be the ultimate sanction or
._ 19 something that they need to contribute more or do
20 something differently with respect to the road, but
21 the contention is they've exceeded their right to
22 use that road.
23 MR. JERKE: That's not an issue we're
24 going to -- that we can really dwell on today.
25 MR. MORRISON: Well, we've never been
26 able to fix that and we've been telling everyone
24
1 that for at least two years so we're -- but anyway,
2 it is relevant to the scheduling issue for the USR.
3 MR. VAAO: And I' ll explain why I asked.
4 Is any road, public or otherwise, defined if
5 someone can park or be on a road, like a county
6 road, there's no restriction maybe other than some
7 ways of using that road. So it -- for me, it does
8 hinge on if a truck's on that road and obviously we
9 have photographs of the truck on the road there. If
10 I take a picture of a truck in front of my house on
11 Weld County Road 32, that's not necessarily a
12 violation of anything. Establishing whether or not it --
13 what business it came from, and we're not able to do that,
14 -- what indications of what truck that is or whose
15 logo -- that's why I asked that question. Thank
16 you.
17 MR. MORRISON: Well, it is -- there is
18 not a dispute that that' s a private road. The
19 dispute has to do with how much it can be used by
20 TimberRock.
21 MR. JERKE: Since we're on it, isn't it a
22 fee simple road?
23 MR. MORRISON: From my understanding, it
24 was a road created by mutual deeds along the
25 various property owners that used it for access.
25
1 MR. JERKE: Other questions for Lee or
2 other questions for Michelle right now? I guess,
3 counselor, if you would help me on process at this
4 point. At this point, do I bring up Aragon and his
5 -- TimberRock and his representative first? And
6 then public?
7 MR. MORRISON: Yeah. I think that would
8 be appropriate. I think given the nature of this
9 that TimberRock should have -- if there's new
10 information brought up and the public speaks, they
11 should also have the opportunity to speak again and
-- 12 then the final statement would be Planning
13 staff' s.
14 MR. JERKE: Okay, having heard that and
15 unless there's any further questions for Michelle
16 or Lee, we would ask TimberRock for their
17 representative to come on up and respond to the
18 questions or charges, I guess, that are here before
— 19 the company.
20 MR. ZIER: Thank you, Mr. Chairman,
— 21 members of the Board. I'm Rick Zier, attorney
22 representing TimberRock and Jess Aragon. We
23 weren't sure of the procedure either. Whatever the
24 County wants to do is fine, but I -- as part of our
25 response, I intend to make some general comments
26
1 and then I'd like Cindi Rubiano and Jess Aragon to be
2 able to discuss some specifics as far as the specific dates
3 that we've been noticed on that you've discussed
4 here this morning. And then we assumed it would be
5 opened up to the public and we would appreciate an
6 opportunity to respond to anything else that comes
7 up during the public, so we'll try not to be
8 repetitive.
9 I think it is -- would be a good idea for
10 me to fill in some of the history again as many
11 months go by and its pre-arcane at this point. The
.— 12 Applicant filed for a USR, was accused of having
13 started his operation before filing his
14 application. That was not the case. But at any
15 rate, it went through the process in the summer and
16 fall of 2003. He was recommended for approval by
17 the town of Windsor, advising to you and by the
18 Weld County Planning Commission. It came to you in
19 October of 2003. He was turned down on a 3-2 vote.
20 At that point, he was told that he could apply for
21 a Substantial Change Application shortly after that
22 which he intended to do, and he started trying to
23 contact land-use attorneys. I was one of them --
24 one of six, or seven or eight that he contacted
25 through that winter. His understanding was that he
27
1 -- as long as he was going to file that he could
2 open, which he did. He filed his substantial
3 change application in May of 2004. By that time,
4 the County had initiated proceedings in Court on a
5 zoning violation. That is the Court stipulation
6 that is referred to as the June or July of 2004
7 court stipulation and that court stipulation
8 allowed him, because he had filed his substantial
9 change application as he said he would, to operate
10 under certain limits through October of last year
11 and he had to go through the substantial change
— 12 application procedure, which he did. He went to
13 the Planning Commission, came to this Board, was
14 granted a sub -- or, his application was approved
15 and he was allowed to submit another USR
16 application, which he did. He then went through
17 that procedure during 2005 duly, and -- or through
18 the fall and early part of 2005. Again, went to
19 the Town of Windsor, was recommended for approval.
20 Went to the County Planning Commission on February
-' 21 1st of this year, was recommended for approval. The
22 County scheduled a hearing before you on February
23 15th and in the meantime on February 9th, the
24 neighbors filed a lawsuit concerning the road. We
25 then came before the Board on the 15th and it was
28
1 the Board's decision not to proceed with the USR
2 hearing with that, a lawsuit pending, and the
3 allegation in the lawsuit is that the road is not
4 available for Mr. Aragon for the proposed use under
5 the USR. And in essence, the neighbors are arguing
6 that that road is only available for people for
7 residential and certain, maybe, agricultural uses
8 but not for his proposed use. The road is a
9 commonly owned road. It is not an easement. Mr.
10 Aragon is an owner with his neighbors equally of
11 that road.
12 So it's interesting, and it will go to
13 the Court. You have had on the record opinions
14 from both Mr. Barker and Mr. Morrison to you before
15 because the road situation had been brought up
16 continually by the neighbors in these settings
17 before you arguing this similar argument. The
18 Court Attorney's Office disagreed and told you you
19 could go forward and that that would not prevent
20 the proposed use. But then at the 11th hour, the
— 21 neighbors filed this, I think, in hopes to derail
22 this proceeding. I don't think they expected the
23 Board to entertain and grant our request that the
24 Applicant who had come to you in good faith and a
25 lawsuit that could have been filed in the previous
29
1 two years and was filed just before the County
2 Commissioner Hearing that under those
_. 3 circumstances, we asked, "Well, then during the pendency
4 of this suit, we would like to remain open as we
-' 5 did under reasonable conditions. " The Board
6 entertained that, instructed the county attorney to
7 craft conditions in conformance with its comments
8 during the public hearing and we endeavored to do
9 that with the stipulation that you've seen, and
10 with our full agreement it became a stipulation of
11 the Court. So, that is the background here.
.._ 12 The limitations on hours and days were
13 very confining, very limiting, but we have kept to
— 14 them. The allegations that you have heard from the
15 neighbors are not true, none of them.
16 The Applicant has done everything to
17 comply. This is, by our count, the tenth public
18 hearing on this matter. We have complied with all
19 of these matters.
20 I would note a couple of things. The
21 neighbors are always the sole source of these
22 complaints. There is not independent verification
23 except of very de minimis things that do not rise
24 to the level, certainly, of any willful violations
25 of this stipulations or anything that is anything
30
1 to get upset about or exercised about.
2 The neighbors will never be satisfied by
._ 3 anything that Mr. Aragon does. There is no amount
4 of mitigation that will satisfy them. They stated
5 to you that there was "no compromise" on their part
6 when it came to continued being open in February
7 during the pendency of their lawsuit. No
8 compromise. Well, that's not reasonable. That's
9 simply not reasonable and that's who we're dealing
10 with, and that is the sole source of the
11 information before you.
12 The neighbors tactics have always been to
13 bring in last minute issues. A lawsuit should have
14 been filed long before. The issues that were
15 brought to the Board in October of 2003 were
16 brought in only to this board. The Planning
17 Commission did not have the benefit of that
18 information and Mr. Aragon didn't know anything
19 about it until that day. That has been a
20 consistent tactic. They never give any credit,
— 21 even where it's clearly due, and the substantial
22 change hearing where our application was totally
23 different from the initial application two years
24 ago, where there is now an autoplex mall planned on
25 the south side, they came before you and said there
31
1 was absolutely no change.
2 MR. GEILE: Mr. Chairman, if I may --
- 3 MR. ZIER: [inaudible]
4 MR. GEILE: Counsel, I wonder if I could
5 ask -- we're not here to hear the USR, we're here
6 to hear these two areas, and there's been testimony
7 presented to us that we have to consider today. I
8 guess what I'd like to hear from counsel is are
9 these allegations correct or are they not correct?
10 But I don't want to go through the USR hearing
11 today. I don't want to know about all of the
12 improvements they've made. I want to know if these
13 two allegations are correct or not.
14 MR. MORRISON: Well I -- to the extent at
15 -- because these are not corroborated by staff, I
16 think the source of the evidence is relevant. I --
17 you know -- I -- you're not dealing with someone
18 that you have control over in terms of staff. This
19 is information that came from outside, and I think
20 you know, you certainly can direct Mr. Zier to limit his
21 comments on this, but I don't think it's irrelevant
22 to question the basis for the observation.
23 MR. ZIER: Mr. Chairman --
24 MR. JERKE: Continue.
25 MR. ZIER: Thank you. Your rules say
32
1 that you will allow wide latitude during a probable
2 cause hearing for us to present our evidence. I
3 concur with what Mr. Morrison has said. I'm not
4 here to beat up on the neighbors as a personal
.� 5 matter but it is clearly relevant that you
6 understand the nature of the opponent here, the
7 inflexibility and unreasonableness of the sole
8 source of the information that has come to your
9 staff apart from two minor matters that the County
10 did view and we will explain those completely and
11 fully.
12 The other tactic that they have used is
13 to constantly complain. You can talk to the people
14 who man the front desk at the Planning Department
15 about how many times the neighbors have come in.
16 There are a host of alleged violations that the
17 staff has had to go through in the last year since
18 we were here. You have just a handful in these
19 letters that we have been noticed of and that
20 should give you some indication of how serious
21 these complaints really are. They are not serious,
22 they are not true. The neighbors are not credible.
23 They are obsessed and they are irrational. They are
24 contradictory between themselves. They are
25 hypocritical. They asked the applicant to put in
33
1 a culvert, and then later complained about it.
2 They are experts of hyperbole. They protesteth too
3 much and too often. That is clear.
4 And there are falsehoods. Rank lies.
— 5 One example that is put in writing is that when the
6 Applicant was notified of a minor height issue with
7 one of the materials piles that the Applicant
8 ignored that. That's an outright lie. We will
9 address the complaints specifically as I said, but
10 in looking at this and leavening it, you have to do
11 so with common sense.
12 First of all, we know we're been under
13 the microscope for two years, let alone since last
14 year. Commissioner Masden instructed us very
15 carefully what his expectations were, and I know
16 that was what the rest of you felt as well. We
17 appreciated the ability to stay open. We took and
18 take very seriously these limitations and we have
19 instituted any number of policies above and beyond
20 the call to make sure that we are in compliance,
21 and we have been in compliance. Common sense tells
22 you that knowing we are under the microscope,
23 knowing that there are neighbors who are pitted
24 opponents, knowing that they are there with their
25 cameras and their video cameras, why on earth would
34
1 we have done all of these things that are alleged
2 only by the neighbors to have occurred? There is
3 not independent verification of this. They've had
4 six or seven months to come up with independent
5 verification of times and things. All you have are
6 the times and dates that are adjusted by the person
7 taking the picture or the video. There are any
8 number of ways to independently verify those times.
9 That has not been done here.
10 Meanwhile, we have been transparent. We
11 have invited independent verification. We have
12 called the staff and asked them, "Please come out
13 unannounced without warning, make random visits at
14 any time. Please call us and say you're a customer
15 trying to come in after hours, 'Wouldn't you please
16 squeeze me in? ' or something. Do anything and all
17 that you want to do. Do it in any way you want to
18 do, because we're complying and we're taking this
19 seriously and we're grateful to be open. "
20 Our actions are irrefutable. We have
-- 21 continued to mitigate and to beautify this site
22 during this time. Considerable expense has been
23 gone to that. Now people don't do that if they're
24 not serious about the instruction that they've
25 gotten from this board. The stipulation has
35
1 twenty-five separate numbered paragraphs of
2 requirements of us and some of them have a number
3 of sub-parts that are very stringent. We're here
4 on two of the twenty-five, pile height and hours of
5 operation. Many of the allegations that have been
6 thrown at us by the neighbors were on hours of
7 operation have not been noticed to us and passed on
8 to you by the staff.
9 The pile height information is simply --
10 the first instance in March was one pile of mulch.
11 We were not aware that from some visual aspects it
12 was over the fence. When the county told us about
13 this and that was the first month that we were
14 operating, we immediately lowered it. It was two
15 feet high -- higher than the County wanted. It was
16 immediately lowered. It has not recurred. There
17 has not been another allegation of that by anybody.
18 The other pile that you saw of railroad ties is a
19 delivery that's made once every one or two years.
20 It was made -- they are made in bundles, twenty-one
21 inches high. There were three of them piled up and
22 they were about two and a half feet above the
23 six-foot fence along the west side. The Applicant
24 regarded that as part of the opaque screening. The
25 piles of material that we were talking about in the
36
1 stipulation that we understood were the materials,
2 were the aggregate and dirt and mulch and
3 that sort of thing. When the County said, "No, no,
4 that's not the way interpreted it, " we instantly
5 moved the wood piles which were against a wood
6 fence and helped obscure the other piles. We moved
7 them to another part of the site, and there's been
8 no recurrence of that.
9 I might also tell you that there are
10 forty- two piles of aggregate rock and so forth on
11 that site. There have been about 195 days that the
�. 12 property has been open under your stipulation and
13 hours this season. That's over 7,000 individual
^' 14 pile days, and why is that important? Because each
15 of those piles is moved almost on a daily basis.
16 Moved, adjusted, the heights adjusted. Many of
17 them, the height is adjusted many times during the
18 day. There are opportunities all the time for us
19 to have violated that pile height which is a major
20 issue in the eyes of the county, and you must say
21 that the de minimis violations that have been
22 alleged here are just that. There is no way that
23 any fair-minded person can't say that we have
24 strictly complied with that over six months of
25 time. No health, safety and welfare issues have
37
1 arisen with any of the neighbors because of that.
2 The other picture of the staff with pile
3 height showing what appeared to be a pile is
4 actually a dirt berm. It's not a material pile,
5 it's a dirt berm because of a further cut made in
6 the site to allow for material to be hidden behind
7 the fence on the south side and that berm is now
8 part of the opaque screening on the east side and
9 it's been there all summer. We were not required
10 to put opaque screening on that part of the
11 property. It was not part of the requirements of
12 the stipulation, but we did it nevertheless and now
13 we're accused of it being in excess of a pile
14 height requirement. It' s not true.
15 The hours of operation have been strictly
16 observed. We have protected the neighbors
17 interests very capably. That was the purpose of
18 the stipulation, to protect their interests during
19 the time of this. And we have taken that very
20 seriously.
21 We simply ask that you be fair in looking
22 at this. That when you think about all of the
23 operations of a business such as this over 190
24 days, what has been alleged and what has materially
25 impacted the neighbors -- now the neighbors obviously
38
1 are obsessed. They are out there all the time
2 every day. Some people will not be satisfied. But
— 3 it is not right for these allegations to be given
4 weight. They are not correct, they are not true.
5 They are brought to you without independent
6 verification by people who say they have no
7 compromise in them. That is the case here.
8 Because of the seasonal aspects of the
9 business, operations have tapered off dramatically
10 now. There certainly are no issues now of any kind
11 with this business in this neighborhood. The last
— 12 time we were here, we did not know what the trial
13 date was. We now know that the trial date is
14 December 21st. Both sides are keeping to the
15 intermediate deadlines. It will be tried before
16 Christmas. It may be ruled upon that day, it may
17 be taken under advisement. But what we would
18 suggest is that we do what the County did for us
19 last year. With a seasonal business that opens up
20 in February or March -- late February typically --
- 21 is go ahead and schedule the USR hearing on the
22 assumption that we will be permitted to go forward,
23 do that now, let's get it docketed. If it is an
24 issue with whatever the ruling of the Court is,
25 then that is certainly something that will be dealt
39
1 with, but our suggestion is we are going to deal in
2 due course with the lawsuit. There's no need to
3 delay the USR hearing, and we will comply with the
4 reasonable directives of the board.
— 5 I'd like to ask Cindi Rubiano now to
6 address some of the specifics.
7 MR. JERKE: First, let me ask if there's
8 any questions for Mr. Zier?
9 MS. RUBIANO: Hi, I'm Cindi Rubiano. I
10 am Jess Aragon's girlfriend. I help him out quite
11 a bit with TimberRock. Do you need my address?
12 MR. JERKE: Sure.
13 MS. RUBIANO: 1401 Sanford Drive, Fort
14 Collins, Colorado, 80526. And I've had a chance to
15 view the video and most of the video is video of a
16 semi parked in the lane and what it is is on days
17 that Jim is the first one to leave who is our semi
18 driver, he will go out the gate with a semi, park
19 his truck, walk to the gates, shut the gates, get
20 back in his truck and leave. That is always done
— 21 way prior to five o'clock.
22 Now, I know in the video they have
23 entered times of 5:12 or 5:11, and what I think
24 they've done is manually entered a time a half hour
25 ahead because he always is the first one to leave,
40
1 locks the gates, and that's why you see the truck
2 parked momentarily. There would be no other reason
�. 3 for him in an empty truck to go out and park on the
4 lane. There's no purpose in that. And the
5 neighbors have him sitting in the lane for three
6 hours on some of this video? There would be no
7 purpose for that. He is done at quarter to five
8 and he takes the truck to Greeley where it's stored
9 and there's no reason for him just to sit out on
10 the road until seven, eight o'clock at night. He
11 has places to go. He's not paid by the hour. He's
12 paid daily, so sitting in his truck for three hours
13 serves no purpose. And that alone in the video is
14 very obvious that the truck is just sitting there,
15 and it's really sitting there for two or three
16 minutes, not two or three hours.
17 As far as the pile heights go, it depends
18 on where you view a pile. If you're standing at a
19 high point on a road and you're looking at the
20 fence, you can see the tops of some of the piles
21 and that land out there has a lot of hills and
22 terrain that's uneven, so in all fairness to us,
23 from what we can see, we stand at ground level with
24 the piles and make sure that none of the piles are
25 higher than the fence.
41
1 My illustration on the front is just
2 something I put together. I have a degree in art,
3 and it just shows you how the same piles will look
4 depending on where you stand. And I believe all
5 the neighbors' pictures, I know where they took the
6 pictures. They're all at very high levels and you
7 can tell by the way that the picture is shot.
8 The second page of my booklet shows the
9 same exact pile of mulch taken at the same time
10 from different elevations. The first one at the
11 top is taken at ground level and the other one I
— 12 had Jess raise me up just to show you what a
13 difference elevation makes.
14 The third page shows the railroad ties
15 after we moved them. It does have a date of June
16 15th. We were made aware that the County was
17 considering railroad tie stacks "piles of
18 material. " We had always, I guess, assumed that
19 when the County stipulated material height pile of
20 the piles, we thought it meant the piles of
21 material, not stacks or bundles.
22 The picture under that shows after we
23 moved the railroad ties, and that has never been
24 higher again. That was three days after we were
25 notified they were fixed.
42
1 The next page shows a photo. All our
2 materials are stored on that upper level and you do
3 see a little something sticking out. That's
4 actually the top of a dump truck, not a pile of
5 material.
6 The next page shows views of the pile
7 heights in relationship to the screening fence and
8 this is taken inside the yard.
9 The next photo on the bottom, I had him
10 raise me up just so you could see where the fence
11 is and how the piles relate to the fence. And it
12 shows a loader on the other side of the fence on
13 Mr. Len's [phonetic] property working.
14 On the next page, the pile that Michelle
15 is referring to in one of her photos as a stock
16 pile, actually that is not dirt that's for sale.
17 That is a berm that was put in a couple years ago
18 -- or, last year when we excavated to make the
_.. 19 ground go lower so that we could have our piles
20 back there. There's no opaque screening on that
21 side because we haven't been required to do that so
22 that, with exception, is not a pile for sale.
23 The next photo down is a photo of
24 TimberRock on the left, the road in question. It
25 shows you how far the Weinmeister's property is to
43
1 the west and you can barely see the top of the
2 Hartstorm's trees. So you kind of see
3 what they might be able to see of TimberRock from
4 their properties.
-- 5 The next page shows a view of the
6 Hartstorm property. That's the one that was
7 farthest to the west, and I accidentally put "east"
8 on there but it's west, and the Weinmeister's
9 residence a quarter mile to the west.
10 The Weinmeister's have taken pretty much
11 all of the pictures and all of the video and I
.., 12 don't believe them to be credible witnesses because
13 they have personal issues. I don't think that
^ 14 anything they say or do has anything to do with our
15 land use. It has to do with a personal problem
16 they have with Mr. Aragon.
17 This is a view that I took from the road
18 in front of the Weinmeister property, the next
19 page, and you can barely see the top of our pole
20 building. There' s no way from Mr. and Mrs.
21 Weinmeister's house that you can see anything that
22 goes on at TimberRock at all.
23 The next photo is a photo from in front
24 of Mr. Weiler's [phonetic] house and we put that
25 fence up and you can't see much except for a few
44
1 tops of buildings and then like an arbor we have
2 out there on some of our trees.
3 The next photo is a photo -- I actually
4 went to the highest point I could on County Road 17
5 which is a lot higher than TimberRock land, and
6 there's no visible piles. You can see the
7 seven-foot tall weeds on Mr. Len' s property that
8 are kind of growing over the fence, but that's
9 about all you can see there.
10 The next picture is a view of
11 TimberRock's south fence from Highway 34. Then
12 again, you can't see anything from that photo
13 either.
14 The next photo is taken from Mr. Weiler's
15 -- not his property, but the road in front of his
16 property, and it's after we moved those railroad
17 ties. And you can see a little tiny corner of that
18 dirt berm that I had mentioned earlier, but no
19 piles.
20 The next photo is a photo of when we were
21 having our water feature installed, and you can see
22 a little dirt pile there, but they is now a berm
23 that's landscaped and completely covered with
24 redwood mulch. So it was a berm in progress at the
25 time.
45
1 The next photo, the colorful one, is just
2 kind of to show you how you can put any date on any
3 photo and you can put any time on any video. This
4 obviously wasn't taken on Valentine's Day. I took
5 it yesterday at twelve o'clock, but the date on the
6 camera says 2/14/2005.
7 And then the last photo, right before
8 they handed in their last packet of which we
9 weren't aware of until the other day when we picked
10 it up at the County is pictures of them. They
11 meet, they discuss notes, they compare notes, they
12 get their stories somewhat similar to the minute,
13 and I believe they're just doing this personally.
14 It has nothing to do with anything. We have not
15 violated any of the stipulations. There's not way
16 he would do that. He wants to be approved. He has
17 followed these stipulations to the letter. We have
18 policies in place to make sure the gates are closed
19 at 4 :45 on Monday through Friday at 2:30, 2:45 pm
20 on Saturday, somewhere in between there. It
21 depends on the customers. We don't want someone to
22 come in at ten to five and not be able to get them
23 out in time so we actually close the gates a little
24 ahead of time. We do, sometimes, leave one side
25 open so a truck can return by five.
46
1 There has been one occasion where a truck
2 got lost in Greeley and I think Mrs. Hartstorm' s
_. 3 made some reference to it, and we actually had to
4 have our driver park the truck down by the auto
5 mall sign overnight and he brought it back the next
6 morning. But they say he brought it back, like, at
7 nine o'clock at night or something, which I don't
8 know how they would know that, but -- they can't
9 even see our yard from there.
,.. 10 I could go through the video and show you
11 where the video stops and the time is advanced.
12 There's even one time that my daughter picked up on
13 where you can hear an airplane in the background at
.-. 14 4:20. Then the tape stops. It says 5:10 and you
15 can hear the airplane still. So what they do is they
16 see Jim park, they see him go open the gate, they
17 stop the video, they advance it an hour, they start
18 taking the pictures again. So it looks like Jim's
19 sitting in the road for three hours when that has
20 never ever happened. There would be no point in it.
21 You didn't see customers' cars coming in
22 and out. We're closed at five o'clock Monday
23 through Friday, nine to three Saturdays. That's
24 our policy. All of our people know that and we
25 stick with it.
47
1 I have receipts and things if you need
2 that to show our last credit card receipt. I have
3 receipts showing how many transactions we did in
4 one day when they say we have four, five, six,
5 seven deliveries, we had three transactions the
6 whole day. If you need to see all that, I have
7 documentation to prove all that stuff. I didn't
8 include it in there.
9 The County has only come out one time to
10 talk with us and there was no visible violations on
11 that day. Another time, I guess, Bethany came out
— 12 on a Saturday and we were closed at three like we
13 always do and there was nothing to report. But I
14 have invited them over and over again to please
15 come out, please come see how we operate. We want
16 you to see what we're doing because we're not
17 breaking the rules.
18 I don't know if you have any questions
19 for me.
20 MR. JERKE: Okay, do we have questions?
— 21 Lee, do you want to comment on something?
22 MR. MORRISON: Well, if you've got -- I
23 mean, if you have documents that --
24 MS. RUBIANO: I'll submit all those.
25 MR. MORRISON: Yeah, I think -- otherwise
48
1 the Board won't have them in front of them to
2 consider.
.— 3 MR. JERKE: Yeah, if you submit
4 something, obviously --
.a 5 MS. RUBIANO: Okay.
6 MR. JERKE: -- it becomes ours.
7 MS. RUBIANO: Okay, [inaudible] .
8 MR. MORRISON: I assume -- those don't have
9 the full credit card numbers, do they?
10 MS. RUBIANO: I -- I --
-
11 MR. MORRISON: You redacted those?
-- 12 That's good.
13 MS. RUBIANO: On March 19th, they have a
14 picture showing a semi in the road. I have a
15 receipt from a truck wash where Jim had the truck
16 all day. We only have one semi truck, so I can
17 give that to you whoever needs that. I guess I can --
18 the ones -- all the dates that --
.a 19 MR. GEILE: Excuse me, what day is that
20 that we're talking about?
'— 21 MS. RUBIANO: March 19th. Let's see.
22 MR. GEILE: If I may, Mr. Chairman.
23 MR. JERKE: Go ahead, Commissioner Geile.
24 MR. GEILE: The May 19th is not one of
25 the days in question.
49
1 MS. RUBIANO: March 19th.
2 MR. GEILE: Oh, March 19th. Excuse me.
3 MS. RUBIANO: Sorry about that. Okay, so
4 I guess I'll just go through this. On Saturday,
._ 5 March 19th, they are stating that a semi was in the road
6 and I'm not sure of exactly how long they said it was
7 there but he wasn't there that day. We have a
8 business system implemented to ensure that
9 stipulated order was followed to the letter. On
10 this day, semi-tractor trailer rig was being
11 washed, a six hour process, and we have an invoice.
12 Thursday, April 7th was one of the other
13 days that the staff brought up. Dump truck and
14 Bobcat delivery they're stating comes back at,
15 like, seven something. It was actually a load of
16 topsoil that was -- took loader and spread level
17 dirt on site at -- to a person -- a customer' s
18 house. I have the receipt. Order was taken at
19 11:27 A.M. , I have the credit card receipt that
20 notes the time. The delivery took place at noon,
21 and that's noted on the invoice. Truck and Bobcat
22 returned to the yard at 2:00 P.M. , so I have that.
23 And then that's the date -- that's also the date
24 that we only had three transactions the entire day.
25 And there's a receipt that shows where we batched
50
1 out for the day -- batched out the credit card
2 receipts. It shows the total was only $801 and
3 there's three receipts. And on the invoice, which
4 I'll give you a copy of, the delivery was -- or, he
5 spread the topsoil from 12:00 to 1:30 and returned
6 to the yard at 2 :00.
7 MR. GEILE: May I ask a question,
8 Mr. Chairman?
9 MR. JERKE: Go ahead, Commissioner Geile.
10 MR. GEILE: If I may, are there other
11 semis and dump trucks that come to your property?
^ 12 MS. RUBIANO: Jim does all of our
13 aggregate deliveries. We did have the railroad
14 ties delivered by another company, and they had
15 stacked them high and we didn't really pay
16 attention to it.
17 MR. GEILE: The question is are there
18 other semis other than your --
19 MS. RUBIANO: Yes.
20 MR. GEILE: -- semi that come to the
21 property?
22 MS. RUBIANO: Yeah, we have a mulch
23 supplier, and he also sent in a letter.
24 MR. GEILE: Are there other dump trucks
25 that come to your property?
51
1 MS. RUBIANO: No, just our little dump
2 trucks.
3 MR. GEILE: Just your dump truck.
4 MS. RUBIANO: Yeah, we have a mulch
5 supplier and then Jim hauls all of our rock.
6 MR. GEILE: Thank you.
^ 7 MS. RUBIANO: And we do have a flagstone
8 supplier, and he has submitted a letter also.
9 On Saturday, April 16th, they have a lot
10 of things alleged. I looked through all of our
11 invoices and records and calendars and sales
�— 12 activities for the day. On this day, the semi
13 driver, Jim Spears, was not working that day, and
14 that's the day they have noted as him being parked
15 in the road for hours. We also have - - we tore
16 out our calendar page for that day showing that he
17 would be off for that day, and I can hand you out
18 those. These are all the receipts for that date,
19 and they all have delivery times on them.
20 This is also noteworthy. Only one
21 delivery the entire day. This delivery took place
22 in the early afternoon. Truck was back in the yard
23 at 2:00 P.M. , one hour before closing time.
24 Business experienced a total of nine yard pick-ups,
25 which is when somebody comes in and gets, like, one
52
1 yard of mulch or one ton of rock and we have all
2 the invoices to prove that on that date.
3 The next date in question is Wednesday,
4 May 4th. That was also a picture of the truck
._ 5 parked in the road, and the truck driver's log
6 indicated that his last load was hauled to Evans'
7 at 2 :30 P.M. and that's a Wednesday so we're
8 allowed to be open until five, and the truck
us
9 operates out of the Greeley terminal so he takes
10 his truck, like I said before, back to Greeley
11 every night. But his last delivery was at 2:30.
12 May 5th, I believe, is -- yeah, May 5th
13 is when they have a picture of a truck parked in
�- 14 the road, and it's not our truck. Occasionally, a
15 semi will come in with a load of something wishing
16 to sell it. We did have one semi that showed up
17 and they were there before we got there at nine and
18 they had a load of palletized cobble and they were
19 wondering if we wanted to buy it. That happens,
20 maybe, four times a season where a trucker will
21 come down with a load of moss rock or cobble or
22 something like that and want to unload it or see if
23 we wish to buy it. They are not aware of our
24 hours, so they may show up early. They're used to
25 delivering to yards that don't have the
53
1 restrictions that we have and to all our vendors,
2 we have sent out letters stating what our hours
3 are, but we would have no control over one truck
4 showing up at 7:00 A.M.
5 On Saturday, June 25th, I have all the
6 receipts for that date. We had three deliveries
7 that day and fourteen yard pick-ups. Our last
8 delivery, the customer requested, was before two
9 o'clock. She had to have it before two o'clock and
10 she was the last one. And then all the credit card
11 times are right on the receipt here.
12 And then the very last date in question
13 is July 1st, and on that date Jess had the Bobcat
14 out to do a rock spreading job for Mrs. Anne Lind
15 she's Martin Lind's aunt. She's a good
16 customer of ours and she buys rock from us quite a
17 bit, and she had hired Jess to spread some of the
18 rock at her property on County Road 17. There's a
19 receipt from her here. She paid by -- oh, I don't
20 have her cancelled check, but it was scheduled for
21 Friday between 9:00 and noon. We did note a start
22 and finish time on that date because we did see
23 Mrs. Weinmeister taping around noon. The start date
24 of the job was 10:20 A.M. and he finished it at
25 12:20 P.M. and we closed at 5:00 P.M. I believe.
54
1 That's a Friday.
2 And that's all I have as far as all those
3 dates.
4 MR. JERKE: Okay, do we have any
5 questions? Okay, seeing none, thank you.
6 MS. RUBIANO: Okay, thank you.
7 MR. JERKE: And did you have someone else
8 who was going to testify, too, for TimberRock?
9 MR. ARAGON: Good morning. Jess Aragon,
10 TimberRock Landscape Center, 28629 Weld County Road
11 17.
12 I think I'll start by passing out some of
13 these packets just so I can get them out of the way
14 here.
15 MR. JERKE: Go ahead and proceed when
16 you're ready.
17 MR. ARAGON: Okay. I have one more
18 document to pass out.
19 I'm not a public speaker, but I'm getting
20 my practice.
21 What you have before you, gentlemen, is
22 basically -- first thing I'd like to go over with
23 you is the policies of TimberRock and these are
24 reasons I feel you should dismiss the probable
25 cause allegations.
55
1 I have taken all of these stipulations of
2 our order that we had agreed to earlier this past
3 spring very, very seriously. As I have stated
4 before this Board before, this is my livelihood,
5 this is my well- being, this is my life's calling.
6 I enjoy what I do and I don't want to see it come
7 to an end. So I take all this very, very seriously
8 and I've stated before that I'm willing to do all
9 that is necessary that is asked of me to comply
10 with the stipulations.
11 The first thing I did when we got this
12 package back from Mr. Morrison was draft some
13 policies and procedures for my business that I
14 would convey to each and every individual that
15 would work for me or has worked for me in the
16 business, and I'm just going to go down it by --
17 I'd like to read each one of them if I would be
18 allowed to do so.
19 Basically what I've -- well, first thing
20 I did was we designated a person in the business to
-� 21 strictly monitor opening and closing times in order
22 to meet the time frames because it was --
23 MR. JERKE: Let me stop you for a second.
24 Counselor, do we have to have him go ahead and read
25 every one of these into the record? We all have
56
1 them now as a copy.
2 MR. MORRISON: That's within your
3 discretion whether he has to --
4 MR. JERKE: I'd rather not have them read
5 verbatim. We all have them in front of us.
6 MR. ARAGON: May I --
7 MR. JERKE: It takes up a lot of extra
8 time.
9 MR. ARAGON: Okay.
10 MR. MORRISON: I mean, if you want to
11 summarize them, but --
12 MR. JERKE: Please summarize them. Yes.
13 MR. ARAGON: I think it's going to be
^ 14 difficult to summarize this, but I think that being
15 my integrity, my reputation and my livelihood are
16 at stake here, I would please ask that you at least
17 allow me to read these.
18 MR. JERKE: Okay, that's fine. We' ll go
19 ahead and read them. Don't anybody make any lunch
20 plans today.
21 MR. ARAGON: I'm sorry. I'll get through
22 it as fast as I possibly can.
23 MR. JERKE: Go ahead. Good.
24 MR. ARAGON: Item number two: drafting a
25 letter to all vendors and suppliers notifying each
57
1 of these of these restrictions and limiting the
2 times and days in which TimberRock Landscape Center
— 3 receives deliveries of supplies and product.
4 Three: Posting a sign on our gate
5 explaining the nature of the restrictions and
6 another sign that delineates the limited hours and
7 days of operation. We had some advertising in
8 place in the phone book that had to be dealt with
9 and we've helped by putting a sign up and also
— 10 addressing that in our advertising materials would
11 be the best way to handle that situation.
12 Four: Instructing staff to deliver
13 deliveries -- to schedule deliveries tighter and
14 not to schedule any deliveries past 4 :00 P.M. or
15 2:00 P.M. on Saturdays.
16 Five: Taking on landscaping projects
17 outside of TimberRock Landscape Center in an effort
18 to maintain profitability and still focus on
19 honoring the very limiting stipulations, i.e. --
20 for example, we took on doing concrete curbing for
— 21 customers so we would be operating a business
22 off-site that would enable us to continue to work
23 during the nice, warm summer evening hours and we
24 would not be in violation doing so.
25 Item number six: Removing all keys from
58
1 trucks and loaders promptly between 4:45 and 5:00
2 P.M. weekdays, or 2:45 P.M. and 3 :00 P.M. in the
3 case of Saturdays, and locking them in a drawer
4 until 9:00 A.M. the next business day.
5 Item seven: Arranging for off-site
6 parking in Windsor of any truck that was unable to
7 or scheduled not to return to the site before the
8 restricted closing time.
9 Item number eight: Designating a weekly
10 meeting day of Tuesday to review the stipulations
11 and determine how best to continue honoring those
12 stipulations in light of product demand and our
13 [inaudible] ability to supply product and meet that
'— 14 demand.
15 Item number nine: Scrutinizing our site
16 as carefully as our neighbors do so that we could
17 always remain in compliance.
18 Item number ten: We've devised a method
19 of shaving the top of piles of materials using a
20 wheel loader equipped with specially made forks
21 with extensions which we use to shave the tops of
22 any piles of material which may have been
23 considered high depending on the exact vantage
24 point or perspective.
25 Number eleven: We set up a system where
59
1 our 18-wheeler would always be parked in an
2 off-site location so that our production with that
3 particular unit could not be hampered by these
4 limiting circumstances.
5 Item number twelve: Developed a phone
6 process that enabled our phone personnel to
7 determine over the telephone whether this customer
8 intended to visit the site that day, and suggested
9 other ways to conduct business with our firm so
10 that near-hour load outs were minimized. We didn't
11 want to be in a situation where somebody comes in
12 at five -til and says, "Hey, I need a load, can you
13 load me?"
14 Item number thirteen: We implemented a
15 policy with our driver of the 18-wheeler, Jim
16 Spears, that required him to be accountable and
17 make sure that this unit never remained on the
18 premises after the stipulated hour of closure.
19 Item number fourteen: Made immediate
20 changes to all of our printed materials to state
21 the restricted hours of operation instead of our
22 normal hour -- normal operating hours.
23 Item number fifteen: Set up a process in
24 our order taking where we verbally inform every
25 customer of the restricted hours of operation.
60
1 Sixteen: Required that in order to best
2 follow these restrictions we would still need to
3 have each person employed begin each day at 8:30
4 A.M. to be more efficient and begin action loading
5 and hauling at 9:00 A.M. each day.
6 Seventeen: We asked each associate to
7 plan some other outside activity for each of the
8 government holidays involved in our time frame of
9 restricted business operations as we would not be
10 able to -- or, allowed to operate on these days.
11 Eighteen: Planned only after restricted
12 hours general maintenance of equipment (greasing
13 machinery, etc. , ) grounds maintenance and
14 improvement projects involving only those machines
15 allowable under the stipulations so as to remain in
16 compliance at all times.
17 That you for giving me that time to bring
18 that up.
19 What you have before you now is
20 photographs of our compliance, just showing that we
21 do have the sign posted on our yard, both signs
22 explaining the new -- the contradicting hours, and
23 I say "contradicting" meaning that the previously
24 printed Yellow Page advertising conflicted with the
25 existing hours per the stipulation.
61
1 You also have a copy of the letter where
2 I direct my suppliers and I would like to read this
3 because it's a brief letter, dated March 7th, 2005:
4 "Re: New hours for deliveries to our yard. Dear
5 Suppliers, please be advised that effective
6 immediately we may only receive deliveries to our
7 yard Monday through Friday from 9:00 A.M. until
8 4:30 P.M. We have strict county regulations that
9 prohibit any equipment running outside the hours of
10 9 to 5. Please do not send any trucks before 9:00
11 A.M. Thank you for your attention to this matter.
-� 12 Sincerely, Jess R. Aragon. "
13 You have another letter before you from
14 Loren Rutz [phonetic] . Mr. Rutz supplies a lot of
15 our mulches. Basically, it's written directed to
16 the Board. I don't think I need to read this. I
17 think you have it all before you. But the jist of
18 it is that Mr. Rutz says that he has delivered
19 twelve loads of wood mulch this year to TimberRock
20 and he can assure you that each and every load was
21 delivered after 9:00 and before 4 :00 P.M. Monday
22 through Friday. He also says that he couldn't
23 control the pile heights which we never expected
24 him to do, and after he left, we took it upon
25 ourselves to immediately analyze and bring those
62
._ 1 piles down to restricted levels.
2 He also says that in his over twenty-five
3 years of experience, our business, TimberRock
4 Landscape Center located as 28629 Weld County Road
5 17, is one of the very cleanest, neatest, tidiest
6 landscape supply yards that he has ever been to.
7 And this letter is not intended to be in support of
8 or against Mr. Aragon's business. It is intended
9 only to explain his delivering of the wood mulches.
10 We have another letter directed to Ms.
11 Michelle Martin of Planning Services by another
12 vendor and I'm not going to read this letter, but
13 also want to point out that he basically had us --
14 I actually -- I need to read it. It won't take
15 long.
... 16 "Dear Ms. Martin, this letter is written
17 to serve as an affidavit for me because I will not
18 be able to personally attend this hearing due to a
19 conference I'll be attending in Nevada for rock and
20 stone vendors and suppliers.
21 "My company, Elite Rock and Stone, LLC
22 supplies TimberRock with the flagstone they carry
23 on site at their yard in Windsor.
24 "I deal with various trucking firms to
25 transport from my location to theirs. Mr. Aragon
63
1 has informed me that Mr. Weinmeister and other
2 opposing neighbors are claiming that a truck from
3 Lafayette Transit was in the lane waiting to get
4 into TimberRock at 6:15 A.M. on Thursday, May 5th,
5 2005. One of the firms I use is Lafayette Transit
6 and I dispatched them to deliver a load of
7 flagstone from Lyons, Colorado on Thursday, May
8 5th. Stoneworks, the company I buy from in Lyons,
9 will not even load my truck, Lafayette Transit,
10 until 7:30 A.M. Then the driver has a one and a
11 half to two hour drive to get to Windsor depending
12 on the morning traffic and weather conditions.
13 This can be verified by Stoneworks if necessary.
14 "It is ridiculous to claim that there was
15 a delivery to Mr. Aragon's business before 9:00
16 A.M. on any given day. Mr. Aragon informed me of
17 his restricted hours of operation back in March of
18 -05. He was very adamant about deliveries to and
19 from the site in Windsor. I would not do anything
20 to jeopardize his business by sending a driver
21 early nor would it be possible under the time
22 constraints of my vendor.
23 "On another occasion, I called Mr. Aragon
24 about 3:30 P.M. on Monday, June 20th, 2005 and
25 asked if he thought it was feasible to bring a load
64
1 out on this day and get it unloaded by closing
2 time. Mr. Aragon responded by telling me he did
3 not want to chance it not be able to get the truck
4 out by 5:00 P.M. I ended up having to park a
— 5 loaded truck overnight in Fort Collins until the
6 following morning for delivery to TimberRock after
7 9:00 A.M.
8 "I would like to say that TimberRock is
9 one of the nicest landscape materials yard I have
10 ever seen or dealt with, and I deal with hundreds
11 all over the country. Mr. Aragon has turned his
12 business into a site that looks like a park or
13 estate rather than a business. He runs one of the
14 cleanest operations I have ever seen and his caring
15 attitude about the area he occupies is second to
16 none. The business is a benefit to the community
17 it serves.
18 Harmony Gardens [phonetic] : "To whom it
19 may concern, I am writing this letter in regards to
20 the hours of operation of TimberRock Landscape
'— 21 Supply Company.
22 "During the past two years, Mr. Aragon
23 has contracted with our company to do landscape
24 improvements at his supply yard. Mr. Aragon has
25 been adamant about us observing the hours of
65
1 operation he has established for conducting his
2 business. Mr. Aragon has made it clear to us that
3 under no circumstances are we to arrive prior to
4 9:00 A.M. Further more, Mr. Aragon has politely
5 requested that we schedule our work so that any job
6 is completed by his closing time.
7 "It has been my pleasure to know and do
8 business with Mr. Aragon. " If you have any
9 questions, please call him.
10 The next page is a -- basically what I'm
11 just doing is illustrating how our trucks are
12 stored behind a screen fencing. Mr. Spears stores
13 the Peterbilt in Greeley every night. It's always
14 out of the yard before closing time before 5:00
15 P.M. or before 3:00 P.M. on Saturday.
16 And again, I'm not going to go into this
17 with the -- basically we did make some more
18 improvements and that's USR material. I'm not
19 going to belabor the point.
20 I'd like to say that this site was a
21 dump site for the dairy, it's now referred to as
22 a "facility. " And basically, you have a situation
23 where you've got the wolves guarding the chicken
24 coop here. And that's all that I have today.
25 MR. JERKE: Any questions, Commissioner
66
1 Geile?
2 MR. GEILE: Yeah. Mr. Aragon, you know,
3 I've looked through a lot of documents that have
4 come through here from your organization or your
5 business, and as you've gone through the letters
6 and you've said that you know you notified,
7 notified, notified and you've substantiated that in
8 my mind. I haven't been through a lot of audits in
9 my lifetime. One of the questions come up when you
10 see things like vouchers, sales receipts, and if
11 there was occasion where this were to move on to
12 the courts, is your accounting system in a position
13 that it could substantiate and justify those
14 transactions that you presented to us today which
15 do tie back, by the way, to when vehicles were on
16 the site, leaving the site and things of that
17 nature?
18 MR. ARAGON: Well, I --
19 MR. GEILE: Maybe I'm making a
20 statement. You need to make sure before you answer
— 21 that question that you do have controls in place to
22 substantiate the documents that you have presented
23 to us today. That's all I'm saying.
24 MR. ARAGON: Thank you. Understood.
25 MR. JERKE: Other questions for Mr.
67
1 Aragon? Okay, thank you.
2 What I want to do, I think, is divide
3 this up, proponent and opponent. If there's anyone
4 else that is here on the proponent side for
5 TimberRock, I'd like to hear from them at this
6 point, and then we'll divide it up and do the
7 opponents all in one group afterwards so if you're
8 here to support TimberRock, we'd like to hear from
9 you at this point. Just come on up and state your
10 name and give us your testimony.
11 And again, we want to try to keep this as
12 much as possible to the issues at hand which are
13 the open hours, and then obviously the piles, too,
14 that were supposedly in violation.
15 MR. SPEARS: Okay, my name is Jim Spears,
16 2327 West 16th Street, Greeley, Colorado and I am
17 the driver that brings in most of all the
18 materials. They've got me dated here days that I
.. 19 was off for trucks parked on the road and that's a
20 lie.
21 At one time I was at a wedding in
22 Colorado Springs on one of the dates, and another
23 date was -- the truck was being washed. After it
24 was washed, it was serviced by Peterbilt. Saturday
25 is the only day we have to service the truck. So
68
1 everything that they're saying about the pictures
2 taken of trucks being on the road there is a lie.
3 That truck is gone at quarter to five every day
4 that I'm there. Most of the time I'm not there
5 anyways. But that's all I have to say.
6 MR. JERKE: Sir, are you a contract
7 trucker, then, for --
8 MR. SPEARS: No. No sir. Mr. Aragon
9 owns the truck and I work for Mr. Aragon.
10 MR. JERKE: So you are a full-time
11 employee?
12 MR. SPEARS: Yes, sir.
13 MR. JERKE: And do you always, then, park
14 it at night somewhere else other than the --
15 MR. SPEARS: Yes, it's parked down at
16 Peterbilt.
17 MR. JERKE: Peterbilt [inaudible] ?
18 MR. SPEARS: Yeah, it's 2nd Avenue in
19 Greeley off of 85.
20 MR. JERKE: Commissioner Vaad?
21 MR. VAAD: Earlier, Mr Spears, somebody
22 asked if they could recognize a logo on the truck
23 and the answer was no, but are you comfortable that
24 that's your truck that was in those videos that we
25 saw? Or Mr. Aragon's truck?
69
1 MR. SPEARS: Pardon me, again?
2 MR. VAAD: Is the truck that we saw in
3 the videos, and maybe you couldn't see from back
4 there, we saw pictures of a truck parked in the
5 roadway outside of the landscape company. Were you
6 comfortable that that's your truck, or Mr. Aragon's
7 truck?
8 MR. SPEARS: One photo was Mr. Aragon's
9 truck but it was early, it was in the morning time
10 because I came in out of Wyoming, dumped a load and
11 then I left. Now the other times wasn't his truck
.— 12 [inaudible] .
13 MR. VAAD: Thank you.
14 MR. JERKE: Other questions?
15 Commissioner Geile.
16 MR. GEILE: Is there anyone else other
17 than you that drives the truck that's owned by Mr.
18 Aragon?
19 MR. SPEARS: Nope, I'm the only one.
20 MR. JERKE: Other questions for Mr.
21 Spears? Thank you for your testimony.
22 MR. SPEARS: Thank you.
23 MR. JERKE: Is there anyone else here
24 from the proponent's side or the TimberRock side I
25 should say in this case?
70
1 MR. LISS: Good morning. My name is Stan
2 Liss. I reside at 5513 Saratoga Circle in Fort
3 Collins, 80526. I have purchased various materials
4 from TimberRock since they have been at this site,
— 5 and one thing that has impressed me is that each
6 time I go out there it looks better and the last
7 time I was out there was this summer buying mulch
8 for my yard and I was just so impressed. All the
9 work they have done to make this site conform to
10 the surrounding area and it almost looks so nice
11 you hate to even buy stuff and take it from the
12 site.
13 I was out there picking up a load of
14 mulch this summer during the week. I think I was
15 loaded about a quarter to five and received a call
16 on my cell phone. Ended up sitting in the back of
17 the yard while I was talking on my cell phone, and
18 then as I was leaving I was surprised to see that
19 the gate was closed about five minutes to five.
20 "Shoot! " I had to walk back to the office and find
— 21 one of the people that worked there to have them
22 unlock the gate so I could get out.
23 I know Jess and Cindi. They are high
24 quality people. They're trying to run a good
25 business. I know that they've got guidelines to
71
1 follow and I'm sure that they're doing everything
2 that they can to follow those.
3 Any questions?
4 MR. JERKE: Questions? Thank you for
5 your testimony.
6 MR. LISS: You bet. Uh-huh
7 [affirmative] .
8 MR. JERKE: Is there anyone else who
9 wanted to testify on behalf of TimberRock?
10 MS. RUBIANO: Hi, I'm Erandi Rubiano. I
11 live at 1401 Sanford Drive in Fort Collins,
12 Colorado and I'm a CSU student. I'm a junior there
13 right now, and I worked part-time for Jess over the
14 summer and I'm just here to inform you of how I
15 know for sure that Jess has followed all of the
16 stipulations meticulously.
17 For example, he closes the gate early
18 every day that I have worked out there. I actually
19 remember getting kind of scolded by him, "Get out
20 there, lock the gate before any customers can come
21 in because we can't have anyone in here and load
22 them and get them out in time, " and so that's how I
23 know he's been following the closing times.
24 And then I also wanted to also bring up
25 the flaw that my mom mentioned in the video tape
72
1 that I saw last night. There's an airplane flying
2 above her as she's video taping and it says the
_. 3 time is at 4:27 or so, and then the video tape
4 stops and is replayed again at 5:00, you can hear
5 it on the sound. I can show it out -- point it out
6 to you all that there is a flaw on her video tape.
7 It' s obvious that she starts the video tape, films
8 it, stops, adjusts the time and then re- films it
9 again because you can still hear the plane flying
10 over.
11 I believe that this situation is purely
12 racially motivated and I feel that these neighbors
13 have personal issues towards Jess and I don't think
14 his land use has anything to do with this situation
15 and I believe that they are creating fraudulent
,... 16 documents.
17 I believe that Jess Aragon is a hard
18 working business man and I don't think that he
19 would risk being open ten, fifteen minutes later to
20 risk losing his whole business. This business is
21 his life and ten, fifteen minutes -- having a truck
22 leave ten, fifteen minutes, twenty minutes later,
23 it's not worth it to him, you know? This is his
24 life, so I just want to tell -- let you guys know
25 that. If you have any other questions for me --
73
1 MR. JERKE: Questions? Thank you. Is
2 there anyone else who wanted to testify on behalf
.— 3 of TimberRock?
4 MS. BROWN: Hi, my name is Taylor Brown
5 and I live at 3413 Sam Houston Circle in Fort
6 Collins and I am a college student in Fort Collins
7 and I was employed at TimberRock full-time May
8 through August, and I was the secretary so I was
9 the one who was making, like, all of the scheduling
10 and stuff like that. And then I was in charge of
11 opening the gates at nine, and if Jim wasn't there, I
12 was the one that was closing them early.
13 I never scheduled a delivery, like, too
14 late or anything. I made sure that we could always
15 get it in, you know? I wasn't going to over
16 schedule so then we'd have to call people because
17 it's hard. Like, people, like we call them and
18 then they're, like, "Oh you can't get it today?"
19 I'm like, "Yeah, sorry. We have to" -- you know,
20 "we have to be closed, so" -- and I had to do that
21 a lot this year.
22 And all the photos that were taken or
23 whatever, they can be adjusted and I'd just like to
24 point that out, so -- is there any more questions?
25 MR. JERKE: Any questions? Thank you for
74
1 your testimony.
2 MS. BROWN: Uh-huh [affirmative] .
3 MR. JERKE: Is there anyone else who
4 wants to testify on behalf of TimberRock?
5 MR. COOLER: My name is Chad Cooler
6 [phonetic] , I live at 3224 Pepperwood Lane, Fort
7 Collins, 80525. I've been employed at TimberRock
8 since it has opened this year and I've worked there
9 every day, six days a week except for on holidays
10 when we're closed, and I'm the one who arrives
11 there first and when I leave there I'm one of the
12 last people to leave. I'm usually in charge of
13 opening the gate and closing it, so I usually get
14 there around 8:30 every morning, make sure the
15 gate's closed behind me and I don't open that gate
16 before nine o'clock ever, and I always close it at
17 five Monday through Friday and on Saturdays I'll
18 close it at three or a little bit before. I never
19 close it late. That's all I'd like to say.
20 MR. JERKE: Questions? Thank you.
21 MR. HAGMAN: My name is Karl Hagman.
22 That's H-A-G-M-A-N, and Karl with a K. I'm a new
23 resident at 8796 Longs Peak Circle in Windsor and
24 I've lived there about 75 days and in the process,
25 we're looking for covering for our yard in terms of
75
1 rocks and mulch, and edging and that kind of a thing and
2 we got a brochure from TimberRock in the mail and
3 the brochure itself is very vague in terms of where
4 it is, in terms of location. It' s between --
- 5 somewhere between Highway 34 and somewhere on north
6 side is County Road 62, I think it is. And it was
7 a little bit confusing to me until I saw, I think
8 it was, Cow -- something -- Daisy Dairy or
9 something like that and so just within the last
10 week I told my wife, "We've go to go out and look
11 at this place. " And so we go down County Road 17
12 and low and behold we drive right by it. The sign
13 is so small identifying TimberRock that I'm, quite
14 frankly, surprised that they're still in business
15 after what I've heard this morning. Because as a
16 consumer, it's a grave detriment to me who wants to
17 get a good deal that's right for myself and my
18 family to be able to have a difficult time finding
^, 19 such an establishment. In fact, driving down the
20 road my wife said, "Where is it?" and we came upon
21 it and I said, "Right there on the left, " and she
22 said, "Wow. " With no discredit it upgrades the
23 community, the general area. Very, very
24 attractive. I have some clients that are -- or
25 friends that are involved in other landscape
76
1 companies and by far and away that I've seen in
2 Larimer County and Weld County it' s the most
3 attractive place of business. It's kind of like
4 saying, "Come on in, we'd love to have you. "
5 Interestingly enough, my wife works full- time. She
6 got off early and we drove to the yard and as we
7 were approaching the gate I noticed my clock. I
8 said, "Well, it's quarter to five, " and as I was
9 doing so, Jim was driving out of the driveway. The
10 gate was closing behind him. We got in just before
11 it closed, we got in, it closed and everything was
12 fine. We did some talking and -- we went beyond
13 five o'clock and Jess was there and Cindi and they
14 both said, "We can't load anything up for you. It's
15 after five o'clock, our hours are restricted. " And
16 my wife made the comment, "How do you stay in
17 business when you have such restrictive hours on
18 Saturday and none on Sunday?" and I think it' s a
19 real credit and a tribute to the manner and the
20 type of business that he has, the attractiveness of
21 what he does, and the hours that he keeps is just,
22 you know, I'm sure he's got a great family life
23 because of those hours.
24 But I just want to state here that Chad
25 identified the hours very clearly to us as being
77
1 9:00 to 5:00, 9:00 to 3:00 on Saturday and closed
2 on Sunday and it raised some questions in our mind
3 but I just -- I'm sitting back here and I just
4 said, "I've got to be here today because I don't
5 understand why this whole hearing is taking place. "
6 I think it's totally -- I think Jess and Cindi and
7 their attorney have done a great job in presenting
8 the issues and the response to the concerns of the
9 neighbors, so thank you.
10 MR. JERKE: Any questions? Thank you.
11 Is there anyone else who wanted to go ahead and
12 speak for TimberRock?
13 MS. GEUDNER: I have four pages. Shall I
14 read it?
15 MR. JERKE: Hmmm.
16 MS. GEUDNER: I won't.
17 MR. JERKE: Can you summarize?
18 MS. GEUDNER: I'm Marcel Geudner
19 and I was the previous owner of the
20 property on which TimberRock is located. My
21 address is 7454 South Depugh Street [phonetic] ,
22 Littleton, Colorado and I've been a resident of
23 Colorado since 1959.
24 Now, I've blocked this out for you guys,
25 okay, because you've heard it all, all right? But
78
1 I am going to do a couple of things here but let me
2 see where I am. I might have skipped a page. One
_. 3 thing here I'll just read here.
4 TimberRock opened on March 7th, 2005 for
5 this season with all of the stipulations. I'm a
6 caretaker. Knowing that they weren't used to these
7 restricted hours and that the employees might not
8 be adapted to these strict guidelines, and having
9 been a teacher for 30 years and trying to maintain
10 control in a classroom, I guess I can attribute a
11 lot of it to that.
12 So I started calling every day at five
13 o'clock from Littleton. It wasn't necessarily
14 there. If I was there, I knew they closed on time.
15 It wasn't that I didn't trust them. It was due to
16 the fact that it's hard to all of a sudden switch
17 into a different gear and be so restricted. And
18 I'd call up and they can tell my number and they
19 go, "What?" and I said, "Are you closed?" Cindi or
20 Jess would go, "Yes. " I did that for over a month,
21 and finally they were getting so fed up with me
22 that I saw it in the tone of their -- or, heard it
23 in the tone of their voice and stopped. So that
24 takes us from March probably through about the
25 middle of April. I don't remember the days, I just
79
1 know it was every day and they got sick of it.
2 The other thing I want to mention is that
3 you are aware that at the February 16 meeting where
4 you were supposed to decide whether TimberRock
5 would be ok'd as Windsor ok'd it, Planning
6 Commission ok'd their business, but brought to you
7 and me -- which I'm no longer a part of because I
8 have no part in the land or the business anymore, I
9 sold it to him as of February. But I was served at
10 that February 6 hearing and a suit I believe solely
11 was to derail TimberRock's application process as
12 has been done in the past with you guys. You have
13 been given documentation by the same neighbors in
... 14 hopes that you' ll close down the business.
15 Jess has no motivation to not do what you
16 said or to disregard your stipulations, but the
17 neighbors do. To alter times, and dates of
18 pictures, send in erroneous documentation hoping
19 that you will believe some of the lies and shut him
20 down. One of them has even stated that he would do
21 anything to shut Jess down and I guess he really
22 meant it.
23 I'm asking you not to depend on these
24 neighbors' statements in making your decision about
25 a future of this small business. They're not
80
1 objective. They aren't unbiased. They are biased
2 and want him closed. That's their motive. Thank
3 you.
4 MR. JERKE: Questions? Commissioner
5 Geile?
6 MR. GEILE: I noticed one of the
7 lawsuits was Weinmeister, Hartstorm,
8 Sheiver [phonetic] , Webber [phonetic] vs. -- I
9 think it' s Hugh Geudner and Cozy Cow --
10 MS. GEUDNER: Cozy Cow Dairy.
11 MR. GEILE: That has to do with the
12 road, I assume.
13 MS. GEUDNER: That's the road hearing
14 that is December 21st --
15 MR. GEILE: Okay, the reason I bring that
16 up, you said that you have sold --
17 MS. GEUDNER: The land was sold to him
18 before -- I had in January --
19 MR. GEILE: Well, just let me -- let me
20 ask my --
•-• 21 MS. GEUDNER: What's your question?
22 Sorry.
23 MR. GEILE: My question is when was that
24 transaction completed? When did you actually --
25 MS. GEUDNER: February.
81
1 MR. GEILE: -- if it was a warranty deed
2 -- I assume it was a warranty deed where you sold
3 the property to them?
4 MS. GEUDNER: I did a quit claim deed in
5 January to half the property. Then he got a loan
6 --
^ 7 MR. GEILE: Jan -- Jan --
8 MS. GEUDNER: -- paid me off --
9 MR. GEILE: January '05 of this year?
10 MS. GEUDNER: Yes.
11 MR. GEILE: Okay.
.— 12 MS. GEUDNER: And then I think toward the
13 end of February he had gotten a loan and paid me
'— 14 off totally. All the deeds had been drawn up in
15 January.
^ 16 MR. GEILE: So you no longer are an owner
17 of interest in any way?
18 MS. GEUDNER: I am no longer a
19 participant in the property, and the judge has
20 released my name. I have a court order in my
21 possession saying that I am no longer a part of the
22 lawsuit.
23 MR. GEILE: Thank you.
24 MS. GEUDNER: Which is nice. Thank you.
25 MR. JERKE: I'd only ask that maybe for
82
1 Lee - - I don't know if I really want an answer.
2 How do you quit claim half of the interest on a
3 property? Is that possible, Lee.
4 MR. MORRISON: Sure.
5 MR. JERKE: Okay. No, we don't need to
6 get into this.
7 MR. MORRISON: I think it was done as a
8 financing -- a simple way of financing it.
9 MR. JERKE: I just -- I haven't heard
10 that one before.
11 MR. MORRISON: I reviewed that as well
12 [inaudible] --
13 MR. JERKE: Yeah, yeah. We got the -- it
14 can happen. Okay.
15 MS. GEUDNER: It was done by an attorney.
16 MR. JERKE: Well, they're not always
17 right either.
18 [CROSS TALK]
— 19 MR. ZIER: [inaudible] one person to the
20 same person and another. She was Grantor and
— 21 Grantee with another.
22 MR. JERKE: And so it automatically cut
— 23 it in half that way?
24 MR. ZIER: Right, yeah.
25 MR. JERKE: There you go.
83
1 MR. ZIER: But it's [inaudible] .
2 MR. JERKE: That's the way it happened.
3 Okay. Thank you.
4 MS. GEUDNER: I don't know the legal
5 terms but I know that all of the documents were
6 processed in January. Dan Deane [phonetic] held
7 onto them until the loan went through, and we
8 closed -- I believe it was February 27th, 28th,
9 don't hold me to that. It's one of those.
10 MR. JERKE: As long as it wasn't the 29th
11 I'll be happy.
12 MS. GEUDNER: Well, it could have been if
13 it was leap year.
14 MR. JERKE: Okay, thanks.
15 MR. ARAGON: February 16th.
16 MR. JERKE: Okay, is there anyone else
17 who wanted to testify in favor of TimberRock today?
18 Okay, seeing no one else, what I want to do is go
19 ahead and have a little recess. We've been here
20 about two hours. We'll come back in 10 minutes at
21 ten minutes until twelve and then we'll begin to
22 take up the opposing viewpoint on this TimberRock
23 situation. So we'll come back at ten til twelve.
24 [OFF THE RECORD]
25 MR. JERKE: Okay, the Board of
84
1 Commissioners will come back to order. We are in
2 the process of hearing the TimberRock question.
3 We've had the pro- TimberRock side present their
4 evidence and now we're ready for people who want to
5 present other evidence to go ahead and do that as
6 well. So I would ask for parties or people who
7 would represent the opposing viewpoint to go ahead
8 and come on forth now at this point and give their
9 testimony.
10 MS. SHINNER: Is it afternoon? Good
11 afternoon.
12 MR. JERKE: Almost.
13 MR. GEILE: Almost.
14 MS. SHINNER: Almost? My name is Tina
15 Shinner. My address is 28609, Weld County Road 17.
16 We live directly across the street from TimberRock.
17 As I'm sitting in the back listening to
18 this, I don't like to be involved in things where
19 we have he said/she said and it's very hard to tell
20 what is actually happening. It doesn't feel good.
— 21 I am outside my house -- I have animals,
22 and I am outside twice a day choring in the morning
23 and in the evening, and I write down in my book, my
24 calendar here, when I see violations when I'm not
25 distracted by my eight-year old daughter, before I
85
1 get in the house to write them down. I have sent
2 them in, things that I see.
3 On the list for June 15th, my name was
4 not put down but I had sent that in that I did see
5 that slab of rocks in the road at 8:30 A.M. , that
6 semi with the slab of rocks. I just wanted to let
7 you know I was another corroborating witness to
8 that according to my book here.
9 And then you're talking about
10 corroboration and independent corroboration, and
11 Mr. Zier brought this up to get another person to
... 12 come out and see this and I'm wondering how we do
13 that. Their office hours are the same as your
"- 14 office hours so staff can't be out here after five
15 o'clock or after three o'clock on Saturday or
16 before nine o'clock in the morning so is there a
17 way that we can get some corroborating evidence
18 that would stand up for you to be able to use. I
19 don't know what that is, it just -- when he
20 mentioned that it made me think that, "Well, maybe
21 there's another avenue that we have. "
22 Another thing that Mr. Zier had commented
23 on was our filing of the lawsuit and at the last
24 minute and that -- I know it won't sound right, but
25 it wasn't our intention. We are on our fourth
86
1 attorney. Our first attorney had a conflict of
2 interest and had to leave. Our second attorney
3 said to wait and see what the commissioners do. He
4 believed the commissioners would take care of this
5 road issue. After so long of waiting, we said,
6 "You know, we can't wait anymore. We need to find
7 a land-use attorney. " We found our third attorney.
8 He said, "Yes, you have enough here to file suit. "
9 We did and then when we showed up here in court, we
10 were told that there was a conflict of interest and
11 he had to go away too. Our fourth attorney said,
12 "Yes, you have good evidence. Let's continue with
13 this suit, " until -- I don't even know exactly
14 when, but several months ago came and said, "You
15 need to look at other options. You need to look at
16 either settling this or going with a road
17 association. " We went to a fifth attorney, my
18 husband and I, and brought him everything and said,
19 "What do you think about this?" and he called and
20 talked to the other attorney and agreed, and said,
21 "Yes, you need to look at other options. You may
22 get what you want, and you may not, but you need to
23 look at other options, see if you can't get exactly
24 what you want. "
25 So the picture that Ms. Rubiano took was
87
1 of us meeting, talking about the other options that
2 we have, and one of the other options was to wait
3 and see what the commissioners do at this meeting
4 and the second one -- second and third options are
5 looking at settling or forming a road association
6 or other things that we might do. We are not
7 completely saying that this is the only way we will
8 have it. We have been listening to our counsel all
9 along and now we are looking at what our other
10 options are. There is not only one option in any
11 case. There's not only one option.
12 It's hard for me to see how you guys are
13 going to reconcile what you're hearing from
14 TimberRock. What they say and what they obviously
15 believe, I would believe them if I weren't living
16 it across the street and seeing the violations. I
17 would believe them based on what I hear them say.
18 Their place looks great. It looks awesome. It
19 looks better than my place right now.
20 Their drivers are polite on the road.
21 Their customers are not so polite. They don't slow
22 down. We're concerned about our children crossing
23 the road to go to the dairy. We're concerned about
24 liability. How can a business come into our
25 neighborhood and force liability onto us if their
88
1 customers get hurt on a road that they're taking
2 care of? How can they ascribe their business
3 liability to us individual owners? These are the
4 concerns that we have.
5 So from what I've heard today, I don't know
6 how you're going to reconcile this. It's a he
7 said/she said. There's no way for us with video --
8 that I'm aware of with technology -- with cameras,
9 everything can be altered. There's no way for
10 anything like that to show you other than have your
11 own employees come out and verify it themselves,
12 and they're going to have to sit out there for
13 days. I mean, there are some weeks in here that
14 nothing happens, and then there will be three times
15 in a row where things do happen. So I don't know
16 how to do this, and if you can give us some
17 guidance on that --
18 As far as anything against Mr. Aragon, we
19 have nothing against Mr. Aragon, I
20 have nothing against Mr. Aragon. If I found out --
,— 21 if I ever heard any of the neighbors say anything,
22 if it was anything racial or anything, we would
23 step away from this as -- you wouldn't believe how
24 fast we would step away from this issue. There's
25 nothing against Mr. Aragon or his business. We're
26 concerned about the road, we're concerned about the
•
89
1 liability, and we're concerned about the legality
2 of the business being in an agricultural district
3 and that's our main concern.
4 MR. GEILE: If I may, Mr. Chairman. You
5 did mention that you were one of the litigants, so
6 --
7 MS. SHINNER: Yes, we are.
8 MR. GEILE: Okay. And today what we're
9 hearing -- now there's 25 conditions that have been
10 stipulated by the courts that they have to follow
11 to be able to operate. What we're hearing is
12 issues associated with two of those --
13 MS. SHINNER: Correct.
14 MR. GEILE: -- which would be the --
15 well, you've heard enough testimony to know what
16 those are, but that's all we're here to do today,
17 is to hear if there is sufficient evidence to show
18 cause to move on into another venue, but we still
19 have stipulations that we have to honor as far as
20 their right to operate.
21 MS. SHINNER: Correct.
22 MR. GEILE: Okay.
23 MS. SHINNER: Yeah.
24 MR. GEILE: I just wanted to make sure
25 you understand.
90
1 MS. SHINNER: We're not arguing that he
2 does not have access to his parcel. We cannot,
3 that is against the law. He cannot -- what we're
4 arguing is the type of vehicles that are going in
'- 5 and out and how often and that, that is all.
6 MR. GEILE: Okay.
7 MS. SHINNER: And the condition of the
8 road and it being kept up and the liability mainly.
9 Our biggest concern is the liability. I don't want
10 his clients to have an accident out there or get
11 hurt and they're going to look and see who' s named
12 as the owners of that property, and any good
13 attorney is going to have them throw a lawsuit at
14 absolutely everybody. We're going to get named and
15 we're going to have to defend ourselves and we are
-., 16 going to have to pay money to get -- to defend
17 ourselves even though we don't own part of the
18 business. So that's our concern, and yes I did see
19 that one on June 15th.
20 MR. JERKE: Further questions? Thank
21 you. Others that would like to testify?
22 MR. WEINMEISTER: I'm Garry Weinmeister.
23 I live at 28649 Weld County Road 17, and I'm one of
24 the people that has assembled the photo evidence
25 here that you're seeing today and I had a kind of
91
1 an outline here I wanted to follow. I guess I'll
2 go through that.
3 In February of this year, the
4 commissioners provided TimberRock and Jess Aragon a
5 very generous opportunity to show that he could
6 comply with county regulations and at the same time
7 be a good neighbor. The commissioners had
8 stipulated strict -- and I repeat -- strict
9 compliance with the rules set forth in the court
10 order.
11 Among other things, the court order
12 specified hours of operation and activity that
13 could be conducted on the site after hours and the
14 height of the inventory stockpiled on the site. I
15 felt as though these stipulations were put in place
16 to provide the neighbors with a measure of relief
17 from seven-day-a-week, any- time-of-day operations
18 and traffic. While true to his legacy, Jess Aragon
19 continued to do what he wanted to do. Strict hours
20 of operation were blatantly ignored. I personally
21 observed TimberRock trucks returning to the site as
22 late as 7:36 P.M. I have logged a total of 73
23 violations and those do not count the many weeks of
24 inventory piled higher than the fences. Most of
25 these were casual observations that I noted as I
92
1 went about my daily activities. Many of these
2 violations were recorded with a camera and a video
3 recorder. Both show times and dates of the photos.
4 These video recordings and photos with the times
5 and dates are true and accurate documentation of
6 the events that took place. No dates or times have
7 been altered or falsified and none of the photos
8 have been altered in any way. Would I be willing
9 testify under oath in a court of law to the
10 truthfulness of this evidence? Absolutely.
11 Jess Aragon has been given one
12 opportunity after another to prove that he can be a
13 responsible business person who can play by the
14 rules. He has failed completely.
15 Another thing I'd like to say is I kind
16 of take resentment to being called a liar by the
... 17 many people that came up here. I think if you look
18 at the photos up here, you'll see some things that
19 you do not forge with a time and a date.
20 Take that photo in the lower left corner,
21 for example. Look at the shadows, look at the
22 angle of the sun and you'll see that that was taken
23 early in the morning. That was not taken at nine
24 o'clock or 8:45. That was taken at 6:15 or 6:30 in
25 the morning. The sun is just off to the side. If
93
1 you look at the video you'll see that I panned the
2 truck and I went over and panned the rising sun and
3 came back to the truck. The sun doesn't lie.
4 If you look at the other photos you'll
5 see that -- the upper right photo, you can see the
6 late evening light on that truck as it' s leaving.
7 So look beyond the times and the dates on these
8 photos. Look at what they represent. Look at what
9 they show. These are not altered photos. This
10 evidence is factual.
11 And based on that, I guess I think it's
12 time to have the court orders enforced. Are there
13 any questions?
14 MR. JERKE: Questions? Thank you. Is
15 there anyone else who would like to testify?
16 MS. WEINMEISTER: My name is Kathy
17 Weinmeister. I live at 28649 Weld County Road 17.
18 On May 8th, 2005, I submitted to Weld
19 County authorities a list of 15 violations I
20 observed of TimberRock violating court ordered
.— 21 stipulations.
22 On July 6th, I submitted another list of
23 19 violations. Many of these violations were
24 substantiated with pictures I took. All of my
25 observations are true and did actually take place.
94
1 My pictures were in no way altered. And at no time
2 did any of the neighbors get together and
3 corroborate about what we were going to do, what we
4 were going to say or what times we were going to
5 put down. Yes, the neighbors do get together. We
6 do visit, and we are all involved in a lawsuit so
7 we do get together and talk about the lawsuit.
8 In response to a letter written May 8th,
9 2005 by the opposing neighbors, TimberRock wrote,
10 "We have not ignored any of the rules and
11 respectfully urge the compliance officer and county
12 attorney to see these complaints as frivolous and
13 an ongoing attempt to put TimberRock and Jess
— 14 Aragon out of business. " Our complaints must not
15 be too frivolous as Weld County personnel also
16 observed violations on two different occasions, and
17 I'd like to say here, too, that in the stipulations
18 it said that they were supposed to be strictly
19 obeyed. So just the fact that the compliance
20 officer saw one violation means that they were not
21 being strictly obeyed.
22 The letter goes on to accuse us of making
— 23 false and damaging allegations, and I hope to
24 dispel this statement by the information that I am
25 about to present and show that TimberRock is the
95
1 one making false statements.
2 On March 18th, Brad Weiler and Judy
3 Hartstorm both observed the same violation, and
4 TimberRock's response -- they responded to Brad's
5 observation, "Open 9 to 5, semi left at 3 :00 for
6 the day. Last dump truck in at 4:45. " TimberRock' s
7 response to Judy Hartstorm was, "Working on
8 building. Not open for business. "
9 On Saturday, March 19th, three neighbors
10 noted the same violations. Gary noted the semi was
11 parked on the road just east of TimberRock's gate
12 until 5:30 P.M. TimberRock responded, "Semi always
13 exits the site before 5:00 P.M. Monday through
^' 14 Friday and 3 :00 on Saturday. " Brad noted semi
15 parked in lane from 3 :08 to 5:29. TimberRock
16 replied, "Open 9:00 to 3 :00. Semi left at 2:35. "
17 Judy noted, "3 :20 P.M. , semi parked on road. "
18 TimberRock said, "Semi drive closed gates at 2 :50. "
19 My question is how did the driver close the gates
20 at 2:50 if he left at 2:35 as previously stated?
21 All of TimberRock's friends and
22 acquaintances have got up and they have called us
23 liars today. They have said that we've altered our
24 pictures. But at no time have they given any proof
25 that we have lied or that we have altered our
96
1 pictures.
2 Jess Aragon has proven time and time
3 again over the past two and a half years that he
4 holds no regard for Weld County authority. Once
5 again he has shown that he is unwilling to follow
6 any rules or regulations that are set down for him.
7 It's time that Jess Aragon become accountable for
8 all the infractions of the court ordered
9 stipulations that have occurred. It' s time to end
10 his defiance of Weld County authority. I encourage
11 you to enforce the court order.
12 MR. JERKE: Questions Commissioner Geile?
13 MR. GEILE: You mentioned, if I may Mrs.
14 Weinmeister, you mentioned that on July 6th you
15 submitted to the Planning Department nineteen
16 violations?
17 MS. WEINMEISTER: Uh-huh [affirmative] .
18 MR. GEILE: And then you mentioned that
19 you mentioned you submitted some others prior to
20 that?
—' 21 MS. WEINMEISTER: Yes. On May 8th we
22 submitted -- I submitted -- on my list there was 15
23 violations and I think you do have a copy of all my
24 lists.
25 MR. GEILE: Okay, because today what
•
97
1 we're considering would be violations on -- the
2 ones that --
3 MS. WEINMEISTER: Yeah, you can only
4 consider the 8 violations, so --
�- 5 MR. GEILE: Okay, so the fact that
6 you've submitted those violations are not part of
7 our consideration.
8 MS. WEINMEISTER: No.
9 MR. GEILE: Okay, I just wanted to make
10 sure if there was something I was missing here.
11 MS. WEINMEISTER: No, no, Michelle just
12 picked some violations but I just wanted you to
13 know that there was more than eight violations that
-� 14 I had observed.
15 MR. GEILE: Okay. Thank you.
16 MR. JERKE: Other questions? Thank you
17 for your testimony. Is there anyone else today who
18 would like to testify?
19 MR. WEILER: Hello. My name is Brad
20 Weiler. I live at 28641 Weld County Road 17. I'm
... 21 the neighbor to the west and I have observed all of
22 the violations. I mean, it's not like I sit there
23 and wait or watch or whatever. It just -- whether
24 I'm out in the yard, in the house, I mean, I'm that
25 close. I can see when it happens and how often it
98
1 happens.
2 To be honest with you, I've given
3 Michelle and Bethany -- I have a book. I keep a
4 log, a daily log and I don't keep it -- well, I
5 keep it pretty well updated because I do it almost
6 every day, so -- but there's more violations than
7 just the eight that -- I'll back up the eight that
8 are there. And, you know, like I said, I have
9 several more. But in any -- pretty good pattern and
10 it hasn't been until after the county has notified
11 him that he has pretty much come back into line to
12 where he's supposed to be on his hours of
13 operations, starting hours, closing hours and on
14 his Saturday hours. Otherwise, he pretty much ran
15 as much as he wanted to because he still had trucks
16 coming in after he was supposed to be closed in the
17 evenings, and before he was supposed to be open in
18 the mornings, he had trucks -- his trucks, dump
19 trucks, that were loaded head out. And some of the
20 semis that were parked in the lane were vendor
21 semis. Now I can't say if they knew that they were
22 supposed to be there or weren't supposed to be
23 there, that I have no idea. But as far as his
24 semi, now there again, after he was notified by the
25 county, he pretty much stayed in line. It hasn't
99
1 been parked out there, but before that it was
2 almost a daily -- on a daily basis. Not every day,
3 but pretty close.
4 I really don't know where to go with this
5 outside of if you want to ask questions, I' ll try
6 to give you answers.
7 MR. JERKE: Questions? Commissioner
8 Geile.
9 MR. GEILE: If I may. There's been
10 testimony presented that -- well, first of all,
11 you've heard the testimony presented --
- 12 MR. WEILER: Yes.
13 MR. GEILE: -- by the driver of the semi
14 that works for the person, or -- Mr. Aragon.
15 MR. WEILER: Yes.
16 MR. GEILE: Can you tell us if on March
17 19th, was that their semi or was that some other
18 semi? Because if I heard you right, you not only
19 document the semi, but you document which semi it
20 is.
21 MR. WEILER: March 19th. That -- that
22 was his semi.
23 MR. GEILE: That was whose?
24 MR. WEILER: That was his semi. That was
25 the semi that they have haul their materials.
100
1 MR. GEILE: On --
2 MR. WEILER: March the 19th?
3 MR. GEILE: Yeah.
4 MR. WEILER: Yes.
5 MR. GEILE: On April 7th?
6 MR. WEILER: April 7th? That was also
7 his semi.
8 MR. GEILE: On May 4th and May 5th?
9 MR. WEILER: I don't have anything on the
10 4th, but on the 5th I do and it was his semi.
11 MR. GEILE: And then on June 15th?
^- 12 MR. WEILER: Yes, that was also his semi.
13 MR. GEILE: Thank you.
14 MR. JERKE: Further questions?
15 MR. GEILE: No, he answered my questions.
16 Thank you.
17 MR. JERKE: Further questions? Okay,
18 thank you.
19 MR. WEILER: Okay.
20 MR. JERKE: Is there anyone else who
21 would like to testify against TimberRock at this
22 point?
23 MR. JERKE: Seeing no one else, we would
24 allow the representative of TimberRock to come up
25 and make any rebuttals concerning the testimony
101
1 that has just been brought up. Michelle, did you
2 have a point?
3 MS. MARTIN: Yeah, I just wanted to bring
4 up just one point, and maybe the Applicants can
5 further answer this. But one of the exhibits, J,
6 that was handed out by, I believe it was, Cindi.
7 One of the statements here says that there was a
8 credit card ran at 7:24 P.M. for the amount of
9 $801.86.
10 MR. JERKE: Sure that's not the batch
11 header?
12 MS. RUBIANO: That's the batch header
13 [inaudible] .
— 14 MS. MARTIN: That is. Yeah.
15 MR. JERKE: So that wouldn't be an actual
16 sale at that point. That would be a compilation of
17 the -- all those sales on that day.
18 MS. MARTIN: Oh, okay.
19 MR. JERKE: I only know that because I
20 used to do batch headers once in a while.
21 MS. MARTIN: Perfect, that's great. That
22 clarified it for me.
— 23 MR. JERKE: And I could never get it
24 clear whether it was a batch header or if it was
25 just really bad tasting cheese.
102
1 MS. MARTIN: It says "batch balanced and
2 settled. "
3 MR. JERKE: "Bad cheddar, " you get it?
4 "Batch header. "
5 MS. MARTIN: Yeah, got it.
6 MR. JERKE: Okay, never mind. I'm sorry.
7 MS. MARTIN: Thank you.
8 MR. JERKE: Okay, would the -- would
9 someone from TimberRock like to come up and make
10 any rebuttals. And again, we would like to keep it
11 pretty limited to just the testimony that we've
12 heard with respect to anything that would have been
13 brought up that you need to try and clarify.
14 MS. RUBIANO: The truck in the picture
15 dated 6/15/2005 is not our truck. Our truck is
16 green. We do not have a flatbed. We have only an
17 end dump -- we have two end dumps. We have one
18 that is Vantage brand, one that's a Clement. That
19 is an unsolicited vendor. We don't know who it was in
20 the morning. We don't get there until nine o'clock.
21 [inaudible]
22 MS. RUBIANO: Yeah.
23 MR. JERKE: Wait a minute, we've got --
24 Commissioner Geile, go ahead.
25 MS. RUBIANO: We wouldn't know what --
103
1 MR. GEILE: If you're going to go into
2 that, would you put up a picture of your truck
3 first so we can kind of --
4 MS. RUBIANO: Yeah, that would probably
5 be --
6 MR. GEILE: Do you have a picture of
7 their truck?
8 MS. RUBIANO: That's not the truck
9 either. That's a regular ruck.
10 MR. GEILE: [inaudible] semi? Of your
11 semi?
12 MS. RUBIANO: That you can't tell right
13 now.
14 MR. JERKE: Because if you've got a semi,
15 a semi isn't --
16 MR. ARAGON: [inaudible] packet on there.
--. 17 MS. RUBIANO: Oh yeah, it' s in the packet
18 on the -- it shows you all of our trucks. Ours is
19 green.
20 [inaudible]
— 21 MS. RUBIANO: That's not our truck
22 either.
23 UNKNOWN SPEAKER: This packet?
24 MS. RUBIANO: No, it's the other packet.
25 [CROSS TALK]
104
1 MS. RUBIANO: Okay, I'm sorry.
2 [CROSS TALK]
3 UNKNOWN SPEAKER: It's in there. It's in
4 that packet.
5 MS. RUBIANO: Okay, that I can't tell
6 what that is. It could be any kind of truck.
7 UNKNOWN SPEAKER: I just went through all
8 [inaudible] .
9 MS. RUBIANO: Oh, okay, sorry. Let's do
10 that again. That way I can show you. That I can't
11 tell what it is. But it's not a semi, I can tell
12 by the --
13 UNKNOWN SPEAKER: [inaudible]
14 MS. RUBIANO: That truck is not ours
15 either. And --
16 UNKNOWN SPEAKER: It's facing --
17 MS. RUBIANO: That's backwards, I think.
18 [CROSS TALK]
19 MS. RUBIANO: That's one of our small
20 trucks, and -- but it -- but it doesn't have a time
21 and looks by the shadows like it's probably around
22 noon at summer time because of the way that the
23 shadows are.
24 That's not our truck. And -- I can't
25 tell from that picture, can you?
105
1 MR. ARAGON: Can't tell. And there's no
2 times on those anyways.
.— 3 MR. GEILE: You're going to have to go
4 slower, Michelle.
5 MS. MARTIN: [inaudible]
6 MS. RUBIANO: That truck is ours, but
7 there' s no time noted on that, and it looks like
8 it's probably for March probably around -- I don't
9 know what date. You can't tell, really.
10 And that truck I don't know if it's ours.
11 MR. ARAGON: You can't positively
12 identify it.
13 MS. RUBIANO: And there's no times on any
14 of those. That truck is ours.
15 MR. ARAGON: That one is ours.
16 MS. RUBIANO: But that looks -- it's
17 June. Put the date on that one -- if that's the
18 real date. It looks like the way the shadows in
19 that June photo that the sun' s probably directly
20 ahead or maybe one o'clock, to me.
21 MR. ARAGON: [inaudible] casting off to
22 the north.
23 MS. RUBIANO: It' s casting to the north,
24 which means the sun's directly above to the south.
25 I wouldn't say that was --
106
1 MR. JERKE: [inaudible] , are you getting
2 all that? Okay.
3 MS. RUBIANO: I mean, I know this because
4 we don't break the hours of operation, so it's easy
5 for me to say that it's within our time frame.
6 There's no way he wants to violate a stipulation
7 because then you won't approve him and we're not
8 spending all this money in fees and improving the
9 property so that you'll say no. That makes no
10 common sense for our truck to go park on the side
11 of the road for three hours. And I don't know what
12 Jim would do in there for three hours anyway.
13 MR. SPEARS: [inaudible] .
14 MR. JERKE: Okay, let's keep it --
15 MS. RUBIANO: It's ridiculous.
16 MR. JERKE: Do you have any other --
17 MS. RUBIANO: If you have any other --
18 those aren't -- the ones that Mr. Weiler identified
19 as positively our truck is not our truck at all.
20 MR. JERKE: Okay, so again we just
21 basically have statement of fact disputes --
22 MS. RUBIANO: Right we have one semi.
23 MR. JERKE: -- on a lot of this.
24 MS. RUBIANO: Right.
25 MR. JERKE: So --
107
1 MR. ARAGON: But that can be positively
2 proven that that's not our truck.
3 MS. RUBIANO: No, I don't know whose
4 truck it is.
5 We weren't there in the
6 morning.
7 MR. ARAGON: That wasn't the question.
8 The question is, "Is it our truck or not?"
9 MS. RUBIANO: No.
._ 10 MR. ARAGON: But the answer is, "No, it's
11 not our truck. "
12 MS. RUBIANO: No.
13 MR. JERKE: Okay. Are there other
14 aspects of testimony that you want to try and rebut
15 in some way?
16 MR. ARAGON: Rick had some statements
17 [inaudible] .
18 MR. JERKE: Okay. Thank you.
19 MR. ZIER: Thank you, Mr. Chairman. Rick
20 Zier. Mrs. Shinner referred to circumstances on
21 June 15th several times in her statements. That's
22 not a date that we were noticed about. She said
23 that she was concerned about insurance concerns and
24 liability and just so that the Board knows, we do
25 carry liability insurance that would cover that.
108
1 We have notified her attorney of that.
2 Mrs. Weinmeister said that the early
3 morning photos clearly are early morning photos and
4 that that seems to be the end of it from her
5 standpoint. Let's take as true everything she' s
6 saying about an early morning photo. That's not a
7 TimberRock truck. It's clearly not the semi of
8 TimberRock and the testimony is that that was --
9 had another name on it and was parked there
10 unsolicited, unbidden by TimberRock and unbeknownst
11 to TimberRock. They are not responsible under the
12 stipulation for others who come in unbidden. That
13 was just an unsolicited attempt by somebody to sell
14 something to them. It does happen occasionally,
15 but it' s not something for which they are
16 responsible under the stipulation. Mrs.
17 Weinmeister talked about March 19th and tried to
18 summarize our position by saying that we said the
19 gate was closed at 2 :50 and our driver left at 2:30
20 and how could that happen? Well, that isn't what
.— 21 we said at all about March 19th. What we said was
22 the truck was being washed that day and not in use
23 and when it's washed, it was taken directly to
24 Peterbilt in Greeley from the place where it was
25 washed which is right there.
109
1 Mr. Weiler, it's been testified to,
2 stated affirm -- definitively, "It was his semi, it
3 was his semi. " Those pictures are not the semi.
4 That's how credible this evidence is. There is no
5 other corroboration.
6 Mrs. Shinner complained about not knowing
7 how to do that. There are any numbers of ways of
8 doing that, both of which -- some of which can
9 involve the expenditure of money, you can hire a
10 private investigator if they're that concerned
11 about this. Or you can call the sherrif, you can
12 call a credible third party if allegedly that semi
13 was parked there for three hours, somebody other
14 than these neighbors could have been asked to come
15 out and verify or themselves take a picture. There
16 are any number of ways of doing that. For 190 days,
17 this business has been under the microscope and yet
18 you have no third party objective evidence here
19 from the Complainants. What you have is very minor
20 things that were detected by the County that were
21 immediately corrected. Many days of compliance, a
22 lot of documentation presented to you that doesn't
23 lie about when trucks go in and out and when the
24 orders are taken and so forth and you have
25 objective third party customers and things who
110
1 don't have an axe to grind here testifying. This
2 is not the kind of evidence that would sustain
3 something in court. It should not sustain it
4 before you. There's clearly no evidence of any
5 willful or knowing violations that would justify
6 any contempt of court action. This is a business
7 that has deliberately in good faith complied with
8 these conditions. It's very difficult to comply
9 with these conditions and it has done that. He has
10 taken every precaution that a reasonable man would
11 take and more. The policies that were put in place,
12 the conditions that were told to customers and
13 suppliers and so forth, the on-site enforcement has
14 all been very good and it has been for the
15 protection of the neighbors.
16 Mrs. Shinner said she doesn't like "he
17 said/she said" situations, but they created that.
18 That' s why we're here because of the he said/she
19 said nature of what they submitted to the staff.
20 The staff culled out most of those complaints. 73
21 violations casually observed by Mr. Weinmeister?
22 Come on.
23 The staff has called out a handful of
24 many scores of things alleged. We have addressed
25 them specifically with documentary evidence and
111
1 other objective evidence if you don't believe a
2 word that Mr. Aragon and Ms. Rubiano say. It does
3 not -- this evidence on the other side does not
4 rise to the level of credibility and it should not
5 be given credence. This is a fair and open hearing
6 now, and it can be seen by fair-minded people for
7 what it is. It is not backed up by anything
8 objective at all, and it should not be given
9 credence.
10 We respectfully ask that the probable
11 cause conclusion be that this -- any further
.� 12 prosecution be denied as a seasonal matter. This
13 -- the pace of this business is radically reduced.
14 We do ask that we be scheduled for USR after the
15 first of the year. We will duly go through the
16 court procedure, and I might say [inaudible] Mrs.
17 Shinner I have not been informed of some of the
18 things she said her attorney is discussing with
19 them, but we have discussed settlement with their
20 attorney on the first of June in a meeting I
21 attended with my client. His client's were not
22 available. He was going to meet with them this
23 summer. I have calls into him about the result of
24 that that have not been responded to. We have
25 offered a homeowner association, we have offered to
112
1 pay our fair share. This is what rationally should
2 happen when there are co-owners of a common
3 facility. All of that is what the law will require and
4 we are more than willing to do that, and as you
5 know from other statements that have been made to
6 you before, all the improvements that have been
7 made to this road have been made at Mr. Aragon's
8 expense and he has not requested contribution for
9 that. He has caused the need for it so he has
10 responded in kind and has not expected anything
11 like that so he has played by the rules and
12 continues to here. Thank you.
13 MR. JERKE: Questions? Commissioner
14 Geile.
15 MR. GEILE: Counsel, if I could, I could
16 sense you were given the liberty to go into the
17 history of all the case. It wasn't this board who
18 put your client in this position. It wasn't the
19 neighbors who put your client in this position. It
20 was your client that arbitrarily started a business
21 without a permit in this location. Am I missing
22 something here, or -- you know, it's almost as if
23 -- and then, how many times did you say we've have
24 this before us, now? We've had it many times
25 it's hard to recall.
113
1 MR. ZIER: Not all before you, but there
2 have been a total of 10 hearings including Windsor,
3 the Planning Commission and the three processes
4 we've gone through. Now, four processes.
5 MR. GEILE: And I guess it's just been
6 kind of an acceleration of issues that haven't been
7 caused by this board, it hasn't been caused by the
8 people in the area. So I'm still trying to figure
9 out what gives me -- puts me in a position where I
10 have -- where I can establish that your client has
11 credibility. I certainly don't have a past record
12 of it, and I keep very careful notes as to what has
13 happened in the past. Obviously, we understand we
14 have a total difference of what you've presented as
15 testimony and what the neighbors have presented as
16 testimony but the point of it is, I'm still
17 struggling with, the history of this case. So can
18 you help me, counsel, as to why all of a sudden
.,_ 19 your client has tremendous credibility before this
20 board?
21 MR. ZIER: Yes, because he has done what
22 he said he would do. We acknowledge and have
23 always acknowledged that he did not have a USR
24 permit when he opened the business. He had applied
25 for it. He was aware of other businesses for USR
114
1 approval of landscape businesses in the ag zone
2 that have done that as well and have been treated
3 by the staff that as long as they are in process,
4 they have been allowed to operate. That has been
5 put before you before. In the stipulation with the
6 court, the Board was not supposed to use against
7 this Applicant of those kinds of things, and I
8 sense that it is still occurring. This Applicant
9 has done -- apart from this hearing which was not
10 at our instigation, those other nine hearings have
11 been according to the due process of the county. He
12 went to the Windsor Planning Commission, he went to
13 the County Planning Commission and he came before
14 you in October of 2003, lost on a 3-2 vote. Under
15 the rules discussed with the County Attorney, he
^ 16 had a right to ask for a substantial change. He
17 did do that. He told the County he would do that
18 and he did do that. The county then -- and he
19 arrived at a stipulation that said that the
20 County would have an open mind in the future about
21 this. He went through substantial change duly, he
22 was approved for that rightfully. He then
23 deliberately and immediately went into the USR
24 process and again went through the full USR
25 process.
115
1 In the meantime, at his peril, he has
2 shown you by his actions how credible his word is.
3 He was admonished by the Board in October of 2003
4 when it was given evidence that the Planning
5 Commission had not seen and that he had not
6 expected. He was admonished for having been open
7 that year. There are many other Weld County
8 situations where that has occurred. I'm not
9 excusing him, but I'm saying it's not an unusual
10 situation in this county, and the County has been
11 generous. It has been no more generous with him
12 than others. Because of his denial and because of
13 the change in his application and the exterior
14 circumstances of the neighborhood, he was granted
15 substantial change approval and that was very
16 rightful. Then he immediately went into the USR
17 process. He has done everything in that process.
18 He has paid the fees. He has gotten a unanimous
19 recommendation for approval by the Windsor Planning
20 Commission. He was complimented by the chairman of
21 the Windsor Planning Commission who came out and
22 saw the site. That is the jurisdiction which will
23 ultimately have jurisdiction over this. The
• 24 Planning Commission of the county gave him a
25 recommendation for approval on February 1st of this
116
1 year, and then the lawsuit was filed.
2 So, to me, when you ask about
3 credibility, he has done what he has been asked to
4 do and he has, in my opinion, completely corrected
5 and removed any taint or stain that might have been
6 present two years ago by his utter good faith, and
7 by his actions on the site which, again, have been
8 at his total peril, but in the meantime have
9 protected the neighborhood. And I think this board
10 recognized that in February when it granted him,
11 under strict limits, the ability to continue to
12 operate because I don't think any fair minded
13 person can truly believe that the neighbors have
14 been adversely affected under these conditions.
15 MR. GEILE: I have no further questions,
16 Mr. Chairman.
17 MR. JERKS: Further questions? I did
18 have one comment. You did mention that the
19 Sherrif's Department could be someone who would
20 verify and I've got to tell you I don't think that
21 our Sherrif's Department has the time to go out and
22 do that.
23 MR. ZIER: Well, they may not, but I've
24 got a client who called his clergyman to come out
25 and take a picture. I mean, there are other things
117
1 that imaginative people can do if they're coming
2 before you and want to prove somthing.
3 MR. JERKE: Well, clergymen are a little
4 bit different than law enforcement, and law
5 enforcement does have crime to investigate.
6 MR. ZIER: I'm not saying it's a high
7 priority. I understand.
8 MR. JERKE: Yeah.
9 MR. WEINMEISTER: Mr. Chairman,
10 may I speak again, or not?
11 MR. JERKE: In the interest of fairness,
12 why don't you come on up. Try to limit it to two
13 or three minutes and try to limit it to things that
14 he or the TimberRock people had just brought up --
15 MR. WEINMEISTER: Right.
16 MR. JERKE: -- so that we don't get into
17 this back and forth and back and forth all
18 afternoon, okay?
19 MR. WEINMEISTER: Good, thank you.
20 Again, Gary Weinmeister, 28649 Weld County Road 17.
— 21 Mr. Zier said that the violation on June 15th was
22 not a matter before this hearing. It is. It is on
23 this list.
24 Another thing is in TimberRock statements
25 that Kathy, my wife, brought up where the driver
118
1 apparently closed the gate at 2 :35, or -- no, he
2 left at 2:35, he closed the gate at 2:50. Now
3 we've got a third story in that he wasn't even
4 there that day. He was washing a truck. Again,
5 where' s the credibility for these statements? I
6 don't think you can do all of those things in one
7 day and be considered credible. If the semi was
8 out being washed, then why were these answers
9 given, that the semi left at a certain time and
10 that the driver closed the gate at a certain time?
11 Please look into that when you consider this
�- 12 hearing. Thank you.
13 MR. JERKE: Any questions? Thank you.
14 Well that concludes the testimony that we'll take
15 at this point. Michelle, do you have a point?
16 MS. MARTIN: Yeah, I just wanted to
17 clarify one thing. The violation that Zoning
18 Compliance initiated was in January 27th of -03 and
19 the application for the first USR was submitted in
20 April of '03 . So there was some time frame, and
21 Bethany has stated that the operation was up and
22 running in January of '03 and that was when it was
23 started.
24 And then just to clarify one other thing.
25 On the hours of operation, when they defined the
119
1 operation of the business, it does say in the
2 stipulation "delivery of all products to or from
.._ 3 the site, " and so I just wanted to clarify that,
4 Mr. Zier.
'— 5 MR. JERKE: So that was an hours of
6 operation item, too?
7 MS. MARTIN: That was, yeah.
8 MR. JERKE: That nothing should come in
9 or go out --
10 MS. MARTIN: Deliveries, yeah.
11 MR. JERKE: -- other than between Monday
12 through Friday and nine and three on Saturdays?
13 MS. MARTIN: Correct. Yes.
14 MR. JERKE: We did have this June 15th
15 question raised. I guess we should verify that.
16 MS. MARTIN: Yeah.
17 MR. JERKE: Is June 15th one of the
18 dates?
19 MS. MARTIN: Yes it is.
20 MR. JERKE: Okay.
21 MS. MARTIN: Yes it is. June 15th is a
22 day that we consider to be a violation. Yes.
23 MR. JERKE: Consider to be a violation in
24 question today?
25 MS. MARTIN: That is correct.
120
1 MR. JERKE: Okay. At this point, I will
2 bring it --
3 MR. ZIER: Mr. Chairman, may I respond
4 to what staff just said?
5 MR. JERKE: I guess so. You know, my
6 attorney keeps telling me since -- when something
7 gets brought up, I need to always let the other
8 side respond. This is only on June 15th?
9 MR. ZIER: Well, first of all, I
10 mis-spoke about June 15th.
11 MR. JERKE: Okay.
12 MR. ZIER: I was looking at our written
13 response and we had not, on the response I was
14 looking at, concluded that so that was my mistake
15 and I apologize.
16 Another thing the staff had indicated
17 that they thought that the second packet that was
18 submitted to the staff by the neighbors in early
19 July was given to us shortly after it. Actually,
20 we didn't get that until October, just so you know.
21 If there's any proof or anything of us receiving
22 that. We didn't know about it. We didn't see it
23 until October.
24 MR. JERKE: Michelle, do you have a
25 response to that?
121
1 MS. MARTIN: Yes. Mrs. -- I should say
2 -- Cindi has called several times and has asked to
3 see the file. We have left the file both at our
4 north and south office for her convenience to see
5 it. As far as I know, she hasn't come to see it
6 until just recently, I think it was on last Friday
7 to see the most updated information that we had.
8 MR. JERKE: Okay. Okay, at this point
9 I'll bring it back to the Board for consideration.
10 I don't know how you all want to take it, if you
11 want to discuss it, each person making speeches of
12 findings. Commissioner Vaad, would you like to
13 start?
14 MR. VAAD: I'd be happy to do that, Mr.
15 Chairman. I've been reading the rules for
16 determination of probable cause under the probable
17 cause hearings procedures that we follow, and it
18 states, "Probable cause is defined as a reasonable
19 ground for belief in the existence of facts
20 warrantung proceedings complained of, " of which
^ 21 there are two that were specified for us when we
22 began this.
23 The first was the issue of the violation
24 of the court stipulation on the restricted hours of
25 operation. It' s my opinion, and I feel that there is
122
1 not evidence that convinces me of the existence of
2 facts in that case. We've heard both sides,
3 obviously.
4 The second issue that we were talked
5 about were the violations of the restrictions of
6 the material piles of the visibilities of those
7 piles, so I think that evidence is undisputable and
8 it was also acknowledged by the Respondent. As far
9 as -- in two ways. As far as the first part being
10 the railroad ties, they thought that was part of
11 their screening but after they were told that it
12 wasn't, it didn't qualify as screening, they took
13 that down. The second about the stock pile issues
14 -- the stock pile materials issues, also
15 acknowledged by the Respondent, in my opinion does
16 not rise above the level that would [inaudible] de
17 minimis. In other words, it's a fairly minimal
18 thing and I'm -- I feel that the Court would decide
19 that too, should this go forward to the Court.
20 Therefore -- I, therefore, don't find
21 that probable cause exists, and would make a motion
22 to that effect or I guess I'm acknowledging that I
23 would vote against another conclusion.
24 MR. JERKE: Commissioner Geile?
25 MR. GEILE: If I may, Mr. Chairman, and
123
1 due respect to Commissioner Vaad. I go back to
2 some of the comments that was made by counsel
3 representing Mr. Aragon today and it's not unusual,
4 evidently, I think was the terminology used for
5 this Board to be generous and I go back to this
6 case the way it started and it came before us, and
7 I do have issues that -- of credibility. I do feel
8 the Applicant had -- at least with me -- has
9 credibility issues.
10 I do concur with Commissioner Vaad as far
11 as the stock piling. There's probably not
12 sufficient evidence for that to move ahead as part
13 of the show cause but I do feel that there is
14 sufficient evidence that on one occasion the semi
15 -- I think that was on the 19th -- I thin it, it's not
16 up there any longer. I think there's also evidence of
17 the dump truck and I think there's also evidence of
18 one other instance with the semi truck and I
19 believe that -- well, whatever date that that --
20 the testimony did present that as a violation of
21 Section -- I think it's 20? Section 20, which
22 would be Hours of Operation.
23 You know, it's hard when we sit down and
24 we start trying to figure out testimony when
25 there's so much difference between the two parties,
124
1 it's very difficult. However, in view of the
2 history of this case before us, I will -- at least
3 in my deliberations come down on the side of the
4 people in the area who have gone to a tremendous
5 extent and a lot of trouble and effort to document
6 these violations, consequently I would support
7 approval of the resolution and moving it ahead as
8 it relates to the violations that have been cited
9 under Number 20 of the stipulation.
10 MR. JERKE: Okay. Other comments?
11 Commissioner Long.
12 MR. LONG: Thank you, Mr. Chairman. I
13 appreciate both comments that I've heard so far
14 from my colleagues and agree in part with both of
15 them to a degree.
16 I do find some credibility issues in the
17 ongoing case history of this. I think there is
18 credibility problems with, I guess I'll call it,
19 the Applicant at this point, you know, because we
20 kind of use that terminology. I don't know.
21 Counsel, what do we call them in a problem? Just
22 Respondent. In the ongoing history of this in
23 regards to the lack of the USR in the first place.
24 And I appreciate the hard work that the local
25 people have gone into to describe or to at least
125
1 document what they have perceived to be issues
2 about -- of working outside of what their
3 stipulations were through the Court.
4 But at this point, and I'm not sure to
5 what standard we hold these. I don't find
6 something in my mind beyond a reasonable doubt that
7 I could say is a clear, conclusive evidence based
8 -- consistent evidence regarding an intentional or
9 flagrant abuse of the -- or disregard for the
10 stipulations because we've had evidence that these
11 were the trucks, and we've had the Respondents say,
12 "This isn't our truck, " so I think that debate
13 could go on forever about he said/she said or
14 vice-versa. So in my mind, I just don't find the
15 clear convincing evidence at this point.
16 Could there have been some mistakes made
17 in between? Yes. And I'm looking at when we use
18 the word "strict, " that to me doesn't mean just one
19 time occurrence or miscommunication as it could
20 have been with the height of the ties or the
21 timbers. Or maybe a gate was locked or there was
22 something beyond the reasonable control of the
23 respondent regarding the stop sign or traffic of
24 something where they might have came in after five
25 o'clock or something, you know? Something beyond
126
1 the control of the Respondents.
2 But I didn't find anything that was, you
3 know, like I said, intentional, flagrant or
4 consistent disregard of those stipulations so I
5 would -- not -- I would be in favor of -- or, not
6 supporting the resolution at this point for the
7 probable cause.
8 MR. JERKE: Commissioner Masden.
9 MR. MASDEN: Thank you, Mr. Chairman.
10 Yes, as we all sit here listen to a lot of
11 testimony back and forth from each side and the
12 diligence that has been taken and it's unfortunate
13 for both sides on some of the documentation and how
14 clear cut that is, and that's where I get down to
15 trying to figure out how clear cut all this
16 testimony is from both sides and looking at the
17 violations. Where we had problems before, it seems
18 like the Respondent has cleaned up their act and
19 they've had a couple violations on heights on
20 materials in their yard and took care of those in a
21 very quick manner and, you know, looking at
22 everything I just don't see where I would -- be a
23 real clear cut situation that I could personally
24 feel comfortable about making a decision that they
25 have been in that much of a violation and been that
127
1 bad of a neighbors, I guess. So I would be in
2 support of not going forward with this resolution.
3 MR. JERKE: Okay. I, too, have problems,
4 I guess, with the resolution at this point when I
5 take a look at the weight of evidence. There is
6 some evidence that does suggest that they have had
7 some problems, but I look at terms such as "de
8 minimis" and that says a lot to me. The term "de
9 minimis" to mean, I guess, means "minimal. " It
10 gives us a level of, I believe, discretion. We all
11 understand a judicial system, court system that
12 gives different penalties for different crimes, the
13 kinds of things that even if guilty and even if not
14 taking care of them, are these the kinds of things
15 that you wind up literally shutting a business down
16 for? Having a height that's inches or a couple of
17 feet too high temporarily, having someone else's
18 trucks parked out in front, perhaps even your own
19 in the initial stages of this. I can't determine
20 because we've got that he said/she said aspect of
— 21 this that we can't determine for sure whose trucks
22 these were or what time. But likewise, even if a
23 truck was -- wound up coming in a little late, is
24 that the kind of thing that you literally shut down
25 a business for? And I have a hard time with that.
128
1 We've tried to be pro- business. The problem
2 always with this Applicant is that they started
3 just a little quick. They started the whole
4 process without proper zoning and without going
'—' 5 through the mitigation that would have probably
6 made this a much, much, much easier path for them
7 if they had started earlier and obviously they are
8 paying the price and have paid the price for it,
9 now, these last two and a half years or so.
10 So, I would not be in favor either at
11 this point. The crime, if there was even a crime,
12 certainly would not fit the punishment that we
13 would have to go in and embark on at this point.
14 So at this point, I guess I would be
15 open, then, for motions to go ahead and take action
16 on this one way or the other.
17 Commissioner Vaad?
18 MR. VAAD: Mr. Chairman, may I ask
19 counsel for direction on -- I'm not sure we have a
20 resolution before us that calls for a finding and I'm not
21 finding a finding, so what's the positive action
22 that we take that brings this step to a conclusion?
23 MR. MORRISON: Well, you could choose to
24 find no probable cause to direct the County
25 Attorney to proceed to enforce the order before the
129
1 District Court.
2 MR. VAAD: So just a motion that I find
3 -- or motion that we find that there is not the existence
4 of probable cause?
5 MR. MORRISON: Right.
6 MR. VAAD: Good. Mr. Chairman, I -- for the
7 reasons that I stated and the discussion
8 in deference to Commissioner Geile too, and I
9 appreciate those comments, I would move that the
10 Board of County Commissioners have a finding of "no
11 probable cause" at this time of violation of the
12 stipulations by the District Court.
13 MR. LONG: Second.
14 MR. JERKE: Okay, it's been moved by
15 Commissioner Vaad, second by Commissioner Long to
16 not go ahead with this for all the reasons stated
17 that we don't find a reasonable case of probable
18 cause in this case. Commissioner Geile, did you --
19 MR. GEILE: We should take a roll call
20 vote please, Mr. Chairman.
21 MR. JERKE: Yeah, yeah. And with that,
22 we would need a roll call vote.
23 UNKNOWN FEMALE: Dave Long.
24 MR. LONG: Yes.
25 UNKNOWN FEMALE: Rob Masden.
26 MR. MASDEN: Aye.
130
1 UNKNOWN FEMALE: Glenn Vaad.
2 MR. VAAD: Yes.
3 UNKNOWN FEMALE: Mike Geile.
4 MR. GEILE: No.
5 UNKNOWN FEMALE: Bill Jerke.
6 MR. JERKE: Yes. It passes 4-1.
7 Commissioner -- yes, go ahead Commissioner
8 Morrison.
9 MR. MORRISON: That's one I wouldn't have
10 wanted to be a commissioner. Thank you.
11 MR. JERKE: Yeah, and you don't want the
12 drop in pay grade anyway, do you?
13 MR. MORRISON: Well, the prestige. It's
14 all in the prestige.
15 MR. JERKE: Yeah. That's right. •
16 MR. MORRISON: I just wanted to remind
17 you that there is a companion case to that and that
18 is the setting or potential setting of the USR case
19 is on the ten o'clock agenda so you might do well
20 to go ahead and call the hearing docket up and
-- 21 resolve that matter before everyone here leaves.
22 MR. JERKE: That is a wonderful idea.
23 Let's go ahead and do that since we've had our
24 candy bars.
... 25 At this point, the regular business is
131
1 concluded but we will start the planning docket and
2 I will call up -- I'm going to call up case
.— 3 2005-13A. Lee, can you make record on that?
4 MR. MORRISON: Not unless Carol gets over
5 here. Careful of your shoulder.
6 Mr. Chairman, well if I can find the
7 legals. Mr. Chairman, this is docket number
8 2005-13.A. The Applicant is Jess Aragon doing
9 business as TimberRock Landscaping for Site Specific
10 Development Plan and Use by Special Review Permit
11 #1495 for a Business Permitted as a Use By Right or
12 Accessory Use in the Commercial Zone District
13 (landscape materials yard) in the A (Agricultural)
14 Zoned District, located in part of the northeast
15 corner of Section 8, Township 5, north range 67
16 west, 6:00 P.M. , Weld County, Colorado. Notice was
17 published October 5th, 2005 in the Fort Lupton
18 Press. And it's my understanding this is basically
19 a setting or potential setting for the hearing.
20 What I might suggest not to bring on in all that
'— 21 testimony on the probable cause, but the comments
22 about the date of the court hearing and -- you
23 know, the earliest date there would be a decision
24 you could --
25 MR. JERKE: December 21st, I believe, is
132
1 the earliest.
2 MR. MORRISON: Yeah.
.._ 3 MS. MARTIN: Correct. Yes. Yeah.
4 MR. MORRISON: So I think you -- I think
5 that' s a starting point. That would be the
6 earliest time in which the Court would have an
7 opportunity to consider the road issue unless a
8 stipulation could be reached.
9 MR. JERKE: Let's ask for Mr. Zier to
10 come up. I assume that he would be representing
11 TimberRock they, now as Applicant, we need to
12 communicate with them and see what a likely date
13 would be. I'm specifically thinking of sometime in
.� 14 January or February, but go ahead.
15 MR. ZIER: Well, I would think -- Mr.
16 Chairman, Rich Zier for the Applicant. Late
17 January to mid-February time range, I think, would
18 be reasonable. If, again, the Court has not ruled
19 by that time, then we would have to report that to
20 Michelle and understand that, you know, it may have
21 to be extended farther. But because of the
22 seasonality and the start up again in force in late
... 23 February or so, if it could be had then, it would
24 be wonderful should approval be granted. So --
25 MR. JERKE: And Michelle?
133
1 MS. MARTIN: Yeah, I'm Michelle Martin,
2 Department of Planning Services. I did check with
3 the Clerk to the Board earlier this week and February
4 8th was a possible date if the Board would like to
—' 5 consider February 8th of 2006. That way it would
6 give the Applicants enough time to notify me and
7 let me know if we should proceed.
8 MR. JERKE: Okay. And apparently that's
9 good with the Clerk to the Board. None of us would
10 know, I imagine, what we're doing February the 8th
11 unless I win the Powerball tonight. Then I know
12 I'm not going to be here. But other than that --
13 MS. MARTIN: Because then I'd retire
14 early.
15 MR. JERKE: And February 8th, is that
16 something that looks like it would work for you?
17 MR. ZIER: I'm sure that' s fine. Yeah.
18 MR. JERKE: Okay. Thank you.
19 MS. MARTIN: [inaudible] .
20 MR. JERKE: So I guess what we would need
21 is simply a motion to go ahead and continue this
22 until February 8th.
23 MR. LONG: So moved.
24 MR. VAAD: Second.
25 MR. JERKE: It's been moved by
134
1 Commissioner Long, second by Commissioner Vaad to
2 continue this case until February the 8th of 2006.
3 Any further discussion? Seeing none, all in favor
4 of the motion say aye.
5 ALL: Aye.
6 MR. JERKE: Opposed, say nay. Motion
7 carried unanimously.
8 While I've got you in the crowd, too,
9 what I wanted to do is ask you, beg you -- I did
10 hear, is it Mrs. Shinner, I believe, going through
11 her problems, going through the issues of numerous
12 attorneys, I would just beg of you guys to go ahead
13 and talk out in the hallway. See if you can get
14 something done. Just -- just for all of our goods.
15 I don't know that we want to keep seeing this
16 battle continue. And if you can find some
17 commonality with respect to that road, we'd sure
18 appreciate it. Thank you.
136
1 STATE OF COLORADO
2 ) ss . CERTIFICATE
_ 3 COUNTY OF DENVER
4
_ I, William W. Pace, Notary Public within
5
and for the State of Colorado, do hereby certify:
6
That the foregoing proceedings were
7
transcribed from a digital recording and
— 8
thereafter reduced to typewritten form under my
9
supervision, and that the same is, to the best of
10
my ability, a true and correct transcription of
11
the proceedings as I was able to hear them on the
12
digital recording made available to me for
13
re-recording transcription;
14
That I am not related to or in any way
15
associated with any of the parties to said cause
16
of action, or their counsel , and that I am not
17
interested in the event thereof .
18
In witness whereof, I have affixed my
19
signature and seal this 1st day of November, 2005 .
20
21
.Cp.RY AG
22 My commission expi s April 28, 2008 . '
WILC/A V
23 9` PACE W,:�
24
William W. Pace, Reporter °rCOOS Py-
25
AGREN BLANDO COURT REPORTING&VIDEO
DENVER(303)296-0017 BOULDER(303)443-0433•COLORADO SPRINGS(7191635-8328•GREELEY(970)356-3306
CLERK TO THE BOARD
PHONE (303) 336-7215, EXT.4225
FAX: (970) 352-0242
I‘70 91510TH STREET
P.O. BOX 758
- C. GREELEY, COLORADO 80632
COLORADO
STATE OF COLORADO )
ss. CERTIFICATE
COUNTY OF WELD )
I, Carol Harding, Deputy Clerk to the Board, do hereby certify:
That the transcription of the foregoing proceedings was verified by listening to the electronic
recording and corrected by me, and that the same is, to the best of my ability, a true and correct
transcription of the proceedings as I was able to hear them on the recording;
That I am not related to or in any way associated with any of the parties to said cause of action,
or their counsel, and that I am not interested in the event thereof
In witness whereof, I have affixed my signature and seal this 5th day of December, 2005.
er`I l ca -.'-
� l
'v ,;vi 1981 Carol Harding, Deputy Clerk to-the Board
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— called 34:12 63:23 32:2 54:25 89:18 70:23 76:13 77:6 47:12 53:25 49:14 51:25
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— 116:24 121:2 123:13 126:7 Circle 70:2 73:5 76:11 77:1 78:14 69:6 126:24
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— 128:20 caused 112:9 circumstances 5:6 108:19 118:1,2 117:1 127:23
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— 88:8 Center 54:10 57:2 cited 124:8 closing 51:23 116:18
cancelled 53:20 57:17 62:4 claim 63:14 81:4 55:21 58:8 64:1 commented 85:22
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— capably 37:17 28:7 118:9,10 claiming 63:2 73:12 74:13 29:7 31:21 123:2
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19:20 31:20 38:10,25 clarified 101:22 closure 59:18 131:21
— card 472 48:9 113:11 128:12 clarify 102:13 club 10:6 19:20 commercia17:12
49:19 50:1 53:10 CERTIFICATE 118:17,24 119:3 clue 135:5 131:12
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126:20 127:14 Chad 74:5 76:24 cleanest 62:5 colleagues 124:14 30:17 79:6 113:3
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131:5 5:11 6:20 25:20 cleanup 10:4 Collins 39:14 64:5 115:20,21,24
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58:16 89:4 107:19 clear 4:22 17:8 73:6 74:7 commissioner 5:8
caretaker 78:6 115:20 116:16 33:3 65:2 101:24 Colorado 1:1 9:18 20:7 21:12 22:14
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Carol 131:4 121:15 122:25 126:15,23 67:16,22 71:12 48:23 50:8,9
carried 134:7 124:12 126:9 clearly 30:21 32:5 77:22,23 131:16 65:25 68:20
carry 62:22 107:25 128:18 129:4,19 76:25 108:3,7 136:1,5 69:15 80:4 96:12
cars 46:21 131:6,7 132:16 110:4 colorful45:1 99:7 102:24
AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306
4
112:13 121:12 60:16,20 91:9 confirm 8:25 32:24 3:3,5,12 7:18,20 --
122:24 123:1,10 94:11,19 109:21 conflict 86:1,10 contribute 23:18 17:13 22:9 24:5
124:11 126:8 118:18 conflicted 60:24 contribution 112:8 24:11 25:24
128:17 129:6,13 complied 29:18 conform 70:9 control 31:18 53:3 26:18 27:4,20,22 —
129:13,17 130:7 36:24 110:7 conformance 29:7 61:23 78:10 29:1,6 32:9
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commissioners 3:4 115:20 consequently controls 66:21 38:18 41:16,19
7:18,20 84:1 comply 29:17 39:3 124:6 convenience 121:4 44:4 45:10 47:9
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commonality computer 5:13 Considerable coop 65:24 93:19 94:11,15
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101:16 conclusion 111:11 contact 26:23 4:20,23 94:3 27:4,5,7,7 28:13
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109:19 concrete 57:20 3:13 110:6 corroborating 91:9,11 92:9
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109:6 121:20 123:10 contention 23:20 corroboration 110:3,6 111 :16 —
complaining 3:7 condition 2:19 continually 28:16 4:21 85:10,10 114:6 121:24
4:2,24 90:7 continue 3:11 109:5 122:18,19 125:3
complaint 8:24 conditions 6:16 31:24 57:22 counsel 5:11 7:21 127:11 129:1 —
complaints 20:24 17:15 29:5,7 58:11 86:12 7:25 15:18 31:4 131:22 132:6,18
29:22 32:21 33:9 63:12 89:9 110:8 116:11 133:: : 31:8 87:8 112:15 courts 66:12 89:10
94:12,14 110:20 110:9,12 116:14 134:2,16 113:18 123:2 cover107:25 —
completed 65:6 conduct 18:10 continued 7:18 124:21 128:19 covered 44:23
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8:21 17:17 33:20 confine 15:11 60:22,23 country 64:1 I created 24:24
33:21 58:17 confining 29:13 contradictory county 1:1 2:22 110:17
AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306 -
5
creating 72:15 52:2,3 53:6,12,13 30:9 31:17 64:6 73:13 119:2 19:14 31:20 61 :2
credence 111 :5,9 53:22,23 67:23 dealt38:25 57:8 demand 58:12,14 128:24
— credibility 111:4 92:19 105:9,17 64:10 denial 115:12 directed 61:15
113:11,19 116:3 105:18 107:22 Deane 83:6 denied l 1 l:12 62:10
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— 124:16,18 132:12 133:4 debate 125:12 department3:7 128:19
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43:12 109:4,12 67:18 102:15 38:14 80:14 8:10 17:14 22:3 directly 84:16
— 115:2 118:7 dates 17:10,10 131:25 32:14 96:15 105:19,24 108:23
credit 30:20 47:2 21:2 26:2 34:6 decide 23:4 79:4 116:19,21 133:2 directs 8:1
48:9 49:19 50:1 48:18 54:3 67:22 122:18 depend 79:23 dirt 36:2 37:4,5
— 53:10 76:19 79:17 92:3,5,6 decision 3:1,9 23:2 depending 5:3 42:16 44:18,22
101:8 93:7 119:18 28:1 79:24 41:4 58:23 63:11 49:17
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— 128:11,11 84:25 decline 3:10 45:21 discredit 75:22
crimes 127:12 Dave 129:22 deed 81:1,2,4 Depugh 77:21 discretion 16:24
CROSS 2:6 82:18 day 10:19 11 :20 deeds 24:24 81:14 derai128:21 79:11 56:3 127:10
103:25 104:2,18 13:9 14:22 23:2 defend 90:15,16 described 10:10 discuss 26:2 45:11
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—
92:1 98:4 99:2,2 57:7 60:10 67:18 57:13,13,14 61:4 41:10 78:17 divine 20:6
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80:10 87:23 88:13 109:16,21 119:10 127:12,12 docket 130:20
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damaging 94:23 122:16 127:7,8 62:9 difficult 56:14 docketed 38:23
Dan 83:6 deadlines 38:15 delivery 9:20,23 75:18 110:8 document 54:18
date 16:25 22:24 deal 16:14 39:1 19:24 20:2 35:19 124:1 99:19,19 124:5
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41:15 45:2,5 75:17 51:19,21,21 diligence 126:12 documentary
49:23,23 51:18 dealing 4:14 6:1 52:11 53:8 63:15 direct 3:10,12,22 110:25
- AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433.COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306
6
documentation 102:17 123:17 employee 68:11 31:16 32:2 84:4 explain 4:7 24:3
9:1 47:7 79:13 dumped 69:10 employees 78:7 84:5 85:17 86:12 32:10 62:9
79:18 92:5 dumps 102:17 88:11 89:17 90:24 explaining 57:5 _
109:22 126:13 dwe1123:23 empty 40:3 92:10 93:10 60:22
documented 8:21 enable 57:22 109:4,18 110:2,4 extended 132:21
documents 47:23 E enabled 59:6 110:25 111:1,3 extensions 58:21 _
66:3,22 72:16 E 3:6 encourage 96:10 115:4 122:1,7 extent 31:14 124:5
83:5 earlier 7:25 15:1 endeavor 29:8 123:12,14,16,17 exterior 115:13
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17:9 45:13 47:16 128:7 133:3 enforce 96:11 127:5,6 eyes 36:20
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--
109:16 131:8 early 27:18 51:22 enforcement 3:2 exactly 20:18 49:6 facility 2:14 65:22
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draft 55:12 56:24 92:23 108:2,3,6 ensure 49:8 33:5 57:20 71:17 104:16
dramatically 38:9 120:18 133:14 entered 12:23 92:21 fact 3:19 75:19
drawer 58:3 earth 33:25 39:23,24 excavated 42:18 78:16 94:19 97:5 —
drawn 81:14 easement 28:9 entering 13:15 exceed 6:10 17:18 106:21
drive 39:13 63:11 easier 128:6 14:7 exceeded 23:20 facts 122:2
71:11 75:12 east 9:11 11:2 12:3 entertain 28:23 exceeding 8:8 factua193:10 —
95:18 12:18 14:11 37:8 entertained 29:6 exception 42:22 fail 12:13
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62:18 78:15 82:17 86:16 75:19 expectations 33:15 family 75:18 76:22
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114:21 elevation 41:13 evening 57:23 115:6 88:18 89:19
dump 9:25 11:4,6 elevations 41:10 84:23 93:6 expenditure 109:9 98:23 121:5
11:10,15,17,23 eleven 58:25 evenings 98:17 expense 34:22 122:8,9 123:10 —
11:24 12:7 13:25 Elite 62:21 event 136:17 112:8 124:13
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20:4 42:4 49:13 embark 128:13 everybody 90:14 experienced 51:24 farthest 43:7 —
50:11,24 51:1,3 employed 60:3 evidence 3:17 5:1 experts 33:2 fast 15:7 18:7
65:21 95:6 98:18 73:7 74:7 5:5 16:23 17:9 expires 136:22 56:22 88:23
—
AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017• BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306 -
7
favor 83:17 126:5 finally 78:21 follow 2:21 5:21 95:14 119:12 16:6 20:7,8,20
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— 126:24 first 21:19,23 25:5 64:5 70:2 71:11 101:5 111:11 103:1,6,10 105:3
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— 127:17 54:22 55:11,19 forth 4:7 36:10 44:21 79:25 129:6,17,18
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121:3,3 126:3 frames 16:25 39:19 40:1 45:18 95:24 98:2 111:5
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27:24 28:21,25 51:7 62:22 63:7 frankly 75:14 95:18,19 115:4 118:9
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final 25:12 focus 7:1 57:18 61 :22 74:17 15:2,14,18,24 Glenn 130:1
- AGREN•BLANDO COURT REPORTING Sr VIDEO
DENVER (303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306
8
go 5:13 19:6 26:11 117:19 129:4 124:18 127:1,4,9 haven 78:8 held 83:6
27:11 28:12,19 133:9 135:4 128:14 133:20 Hawthorn 95:7 Hello 97:19
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38:21,22 39:18 77:18,18 80:9,10 guidelines7:23 12:5 13:18 14:10 113:18
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49:4 50:9 54:15 81:24 82:15 83:4 guys 72:24 77:24 head 98:19 Hi 39:9 71:10 73:4
54:22 55:16,24 83:12 79:12 87:12 header 101:11,12 hidden 37:6
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65:16 70:6 75:10 gotten 34:25 81:13 headers 101:20 40:19 41 :6 50:15
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103:1 105:3 115:14 116:10 hallway 134:13 136:11 highlighted 7:16
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116:21 119:9 Grantor 82:20 51:17 67:12 75:15 77:25 hills 40:21
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129:14 130:7,20 greasing 60:12 110:23 99:11,18 102:12 hired 53:17
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306 -
9
hours 4:12 6:11 imaginative 117:1 independent 29:22 18:13 20:2 72:13 77:8 89:12
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— AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433.COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
l0
106:16,20,23,25 13:10,14 15:20 66:6 70:23,25 Larimer76:2 53:2 66:5
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433-COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306 -
11
literally 127:15,24 logged 91:22 Lyons 63:7,8 119:13,16,19,21 method 58:18
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— AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433.COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
12
mis-spoke 120:10 motive 80:2 115:14 116:9 105:22,23 121:4 oath 92:9 —
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306 -
13
59:2 72:19 74:15 95:5 26:6 91 :5 92:12 102:20 105:20 27:18 30:5 35:24
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—
- AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
14
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306 -
15
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- AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017.BOULDER(303)443-0433.COLORADO SPRINGS (719)635-8328.GREELEY(970)356-3306
16
remember 71:19 respectfully 94:11 reviewed 9:1 82:11 95:11,17 97:20 125:13 127:20 -
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS (719)635-8328•GREELEY(970)356-3306 -
17
scolded 71:19 seek 2:25 3:12 services 3:8 4:5 48:14 51:16 53:4 58:15 59:8 62:23
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—
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— AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
18
37:7 44:11 77:21 stages 127:19 128:22 strict 61:8 78:8 104:22 1 1 1 :23 _
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•.COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306 -
19
T TEFRA 134:20 66:24 67:1 69:13 96:23 104:17 44:5 54:8,10,23
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— AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
20
34:5,6,8 36:17 trailer 9:24 10:25 103:2,7,8,21 twenty-three 6:16 66:24 _
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296.0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970) 356-3306 -
21
118:19 124:23 videos 18:24 68:24 W _ water 44:21 96:17,21 97:3,8
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— AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306
22
106:7 110:18 word 111:2 115:2 82:24 89:23 97:3 0 16:4 20:11 48:13 —
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AGREN•BLANDO COURT REPORTING &VIDEO
DENVER(303)296-0017•BOULDER(303)443-0433•COLORADO SPRINGS(719)635-8328•GREELEY(970)356-3306 -
23
53:5 4:27 72:3 62 75:6
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65:15 77:1 95:5 11:1,4,19,24 7:45 13:8,10
95:14,16 12:19,22 18:6,8 726GYM 13:22
- 3:05 13:23,24 14:1 53:25 58:1 64:4 73 91:22 110:20
3:08 10:18 95:15 65:14 72:4 77:1 7454 77:21
3:12 13:24 95:13 75 74:24
- 3:13 14:2 5:05 13:7
3:2095:17 5:0811:11 --g
3:24 13:16 5:1011:1446:14 87:15 97:4 131:15
- 3:25 13:25 14:2 5:11 39:23 8th 93:18 94:8
3:28 13:17 5:12 39:23 96:21 133:4,5,10
3:30 12:8 14:3 5:15 14:9 133:15,22 134:2
- 63:24 5:2910:18 95:15 8:30 60:3 74:14
3:35 12:8 5:30 9:11 11:15 85:5
30 78:9 95:12 8:45 92:24
32 24:11 5:3612:5 80525 74:7
3224 74:6 5513 70:2 80526 39:14 70:3
3414:12 44:11 __ 85 68:19
- 75:5 6 8796 74:23
3413 73:5 6 79:10 - - - -.
6th 22:4 93:22 9 - --
- 4 96:14 961:1095:5
4th 12:17 16:4,9 6/15 20:9 9th 21:19,23 27:23
52:4 100:8,10 6/15/2005 102:15 9:009:15,1610:23
- 4-1 130:6 6/2520:10 11:21,24 12:15
4/16 20:9 6:00 12:3,19 13:7 14:14 18:6
4/7 20:9 131:16 53:21 58:4 60:5
- 4:00 12:16 57:14 6:1512:25 63:4 61:7,10,21 63:15
61:21 92:24 64:7 65:4 77:1,1
4:05 13:17 14:4 6:30 13:6 92:24 95:16
4:20 46:14 6:45 11:3,15 12:9
_. AGREN•BLANDO COURT REPORTING &VIDEO
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