HomeMy WebLinkAbout20052521.tiff HEARING CERTIFICATION
RE: CONSIDERATION OF MODIFIED SERVICE PLAN FOR PROPOSED EAST I-25
SANITATION DISTRICT
A public hearing was conducted on August 3, 2005, at 9:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner M. J. Geile, Pro-Tem
Commissioner David E. Long
Commissioner Robert D. Masden
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Carol Harding
Assistant County Attorney, Lee Morrison
The following business was transacted:
I hereby certify that pursuant to a notice duly published July 20, 2005, in the Fort Lupton Press, a
public hearing was conducted to consider the Modified Service Plan for the Proposed East 1-25
Sanitation District. Lee Morrison, Assistant County Attorney, made this a matter of record and
stated that, although notice was published in the Fort Lupton Press and mailed to all those who
appeared when this matter was previously heard, it is not mandated. He stated the basic document
is the letter dated July 13, 2005, from Collins, Cockrel and Cole, including Exhibits A through D.
Mr. Morrison stated Exhibit D of said letter indicates the names of all the parties to which notice
was mailed. He stated this hearing is to consider whether to accept an amendment to the existing
East 1-25 Sanitation District Service Plan. Mr. Morrison stated the applicant, or proponents, put
together a service plan, and the Board of County Commissioners reviews and acts upon said plan.
In this instance, the applicant is requesting a change to one of the provisions in the Service Plan
which was previously approved. He stated the change being suggested is to include dissolution
of the District, with a timeline for 208 boundary amendments to commence after the court order is
entered. Mr. Morrison stated the process includes approval of the Service Plan, petitioning to
District Court, then an election and certification of the election. Related to the process, but not part
of the Special District Act, is the amendment to the 208 regional water quality planning document
to recognize this entity as the service provider. He stated none of those steps have occurred at
this point. Responding to Chair Jerke, Mr. Morrison stated the applicant will have to get the 208
plan amended within a time period. He further stated there have been issues about who can
request the 208 plan amendment. Since this organization has not been formally created by action
of the District Court, they do not have an arguably formal status. Mr. Morrison reiterated this
amendment takes the dissolution provision and puts it into effect after the Court certifies the
election, rather than earlier in the process. Responding to Commissioner Geile, Mr. Morrison
stated this gives the applicant the opportunity to get created, as well as be in position to request
a 208 plan amendment.
Jim Collins, Collins Cockrel and Cole,Attorney for the applicant, presented the original certification
of mailing, marked Exhibit B, a copy of which is included in his July 13, 2005 letter. He stated the
notice was published and mailed to all who appeared at the prior hearing. Mr. Collins stated the
applicant is not asking for a change. He stated the provision (Section 1.6) that is recited, is being
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moved from the Resolution of approval to the service plan. He stated that in the litigation with
Mead regarding the Service Plan, they have argued that the Condition must be included in the
Service Plan or there is a flaw in process. Mr. Collins stated that, although he does not agree with
that argument, they have not yet filed the petition with District Court and is, therefore, willing to
include it in the Service Plan, to satisfy Mead. Mr. Collins stated the statute provides for this
process, if a condition is included in the resolution of approval, the Board can later determine
whether that condition has been met. Mr. Collins stated that, since the February 14, 2005,
unanimous approval of the Board of County Commissioners and the previous Planning
Commission approval, there has been much continued interest in the District. He stated St. Vrain
has formalized its offer to Mead to receive that sewage for treatment. Mr. Collins stated they have
proceeded with an application for the 208 boundary change. He stated they are not making a
change, they are only moving the Condition of Approval into the Service Plan, thereby requesting
for unconditional approval of the Service Plan. He stated statute allows for this type of
administrative action. Responding to Commissioner Geile, Mr. Collins stated that if the Court rules
in favor of Mead, there would be no impact on the action taken at this hearing. In fact, he stated,
approval of the Modified Service Plan would remove one of the arguments. Mr. Collins stated that
if the Court rules against the district, they would have to start all over again; however, it would not
impact the action today. Responding to Chair Jerke regarding the verbiage in Section 1.6 which
indicates dissolution would occur in twelve months, "unless extended by action of the Weld County
Commissioners", Mr. Collins stated the language was taken from the Condition of Approval in the
Board of County Commissioners Resolution dated February 14, 2005. He stated that, if the district
could demonstrate it was very near approval, the twelve month period could be modified at that
time. Mr. Collins stated that this kind of dissolution provision is standard for service plans, although
this one is varied by the requirement for a 208 boundary change. Responding further to
Commissioner Jerke, Mr. Morrison stated the district is not requiring the North Front Range Water
Quality Planning Association (NFRWQ) anything other than the 208 boundary change must occur
within twelve months, or the district will dissolve unless the Board of County Commissioners
extends the twelve-month period of time. Responding to Commissioner Geile, Mr. Morrison stated
Mr. Collins' statement that the Condition is simply being moved from the Resolution to the Service
Plan is accurate.
Richard Kraemer, Mayor of Mead, stated this service plan proceeding to the next step does not
comply with the wishes of the citizens and residents of Mead and surrounding area. He stated the
Town is opposed and would like the Board to close the door on the District by not approving the
change. Mayor Kraemer stated the Town is moving forward with is own waste treatment plant, and
has narrowed down the site selection. He stated the Town preferred a site further east; however,
with the decision of the applicant not to approach the Town for service, the Town could not provide
the service. He stated they are moving forward with the new plant to serve existing residents and
it could service the area covered by this proposed District. He stated the Town is trying to be good
planners, and good stewards of the land. Commissioner Geile stated the question under
consideration at this hearing is whether to move the Condition of Approval from the resolution to
the Service Plan, and it does not have anything to do with any other part of the application.
Commissioner Geile stated the issues regarding the Service Plan itself were debated in February,
and the Board is only considering whether or not to move that Condition. Mayor Kraemer stated
he would defer to counsel to argue that point, he is only here as a politician and neighbor who
wants to see the neighborhood designed appropriately. He stated the Town of Mead wants to be
the one in charge of the design of the neighborhood, and this Board can step back, look at what
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it has previously been done and fix it.
Edward Bendelow, Attorney for the Town of Mead, presented documents, marked Exhibit E. He
stated there are a number of procedural and substantive comments to make. Mr. Bendelow stated
this is a major substantive change to what was approved by this Board in February, since the
language is different than the Condition included in the Resolution in February. Therefore, he
recommended the Board rule that the prior claim is void and that the old plan is deemed withdrawn
by the fact of a new substantive plan being submitted. Mr. Bendelow stated the proposed plan is
invalid, based on the lack of notice. He referenced a copy of the notice included under Tab A,
along with a copy of Mr. Collins' July 13, 2005, letter, and stated it is the position of the Town of
Mead that the notice is invalid because it does not comply with Section 32-1-204. He stated it was
not sent to all municipalities and special districts within three miles, since St.Vrain, Longmont, and
Firestone were not notified; Mead did not receive notice 20 days prior to the hearing, as required
by statute; and notice was sent by Mr. Collins' office, not the Board of County Commissioners; the
notice did not contain a general description of land, or give the methods and procedures as
required by Section 32-1-203(3.5); and the notice was not sent to property owners as required by
32-1-204(1.5). Mr. Bendelow stated the amendment was not reviewed by the Planning
Commissioner, and there is no recommendation from the Planning Commission. He also stated
the notice was not distributed to the general public, and indicated Tab B, which includes the Board
of County Commissioners agendas for July, which does not include notice of this hearing. He
stated the August 3, 2005 agenda is the only one which includes the notice of this hearing, and it
was e-mailed to the list of individuals listed under Tab B. Mr. Bendelow contended that the
approval process on February 14, 2005 is flawed, in that it violates Section 32-1-203(4), which
states, "The findings of the Board of County Commissioners shall be based solely upon the service
plan and evidence presented at the hearing by the petitioners, Planning Commission, and any
interested party." He stated Tab C contains e-mails between Bruce Barker, County Attorney, and
Mr. Collins, extending from October, 2004, through February, 2005, in which the East 1-25 District
was specifically discussed, with terms of the resolution and the Service Plan being negotiated for
a period of months prior to approval in February, and contrary to the specific requirements of State
statute. Mr. Bedelow stated not only were the terms of the Service Plan negotiated, the resolution
of approval was also negotiated between Mr. Barker and Mr. Collins. He stated he was astounded
that the Board had a copy of the approval resolution prior to the meeting in February. Mr.
Bendelow stated for the record, that the public and opponents did not have access to that
resolution, and the negotiations did take place, which is in violation of State statute. Mr. Bendelow
stated no one else was involved with the negotiations of the plan. He stated that the notice of this
hearing did not have any attachment containing the revisions which were to be considered,
therefore, having seen what happened in February, he requested from Mr. Barker all that would
be considered at this hearing. Mr. Barker sent a copy of the July 13, 2005, letter from Mr. Collins.
He stated no one knew what was being considered today, or these materials. Mr. Bendelow
discussed the content of the e-mails, stating that they indicate there was specific, detailed
negotiations between Mr. Collins and Mr. Barker over the exact issue that is here today.
Mr. Morrison questioned whether there should not be distinction between counsel and the Board,
since Mr. Bendelow's testimony appears to be applying the term "you-all"to Mr. Barker as well as
the Board. Mr. Morrison stated he questions this line of testimony when Mr. Bendelow is equating
conversations between counsel for the Board and other counsel with the Board not being
forthcoming in terms of information they had. He stated he scanned the e-mails and find none that
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indicate the Board received anything of this nature. He stated the entire argument appears to be
based on the context between counsel for the proponents and Mr. Barker and does not involve the
decision makers. Mr. Bendelow stated Mr. Barker is the agent of, and represents, the Board of
County Commissioners, and stated he will not debate this issue. Mr. Morrison stated Mr. Barker
is not a decision maker. Chair Jerke stated all comments from this point will be made to the Chair,
and questioned how one would expect the County application process to work. He stated the
applicant works through the process, works with staff, sometimes hire a professional planner, a
resolution is drafted,the Planning Commission acts,the Board of County Commissioners acts, and
it is amended all the way along. He stated for the applicant to appear with no paperwork in hand,
would not allow the body of work required by planning staff and attorneys, to make proper
recommendations to the Board. Mr. Bendelow stated the e-mails indicate a specific negotiation
between Mr. Barker and Mr. Collins as to whether the provisions regarding the 208 boundary
should be in the resolution or the plan. He stated they specifically negotiated said question, and
a specific decision was made to put it in the resolution. He stated Mr. Collins is changing his
position because of material from the Court which indicates it is wrong. Mr. Bendelow reiterated
the Statute requires approval to be based "solely on the service plan and evidence presented at
the hearing", which is not what happened. He responded to Chair Jerke's previous question that
State statute allows for"changes, modifications, or additional information of the service plan". He
stated the Board has the ability to continue it, to send it back for review, and many other things.
He stated the only one being negotiated with is the proponent. Mr. Bendelow referred to an e-mail
from Mr. Collins stating the position the opponents would take, with a method of responding to the
objections. Mr. Bendelow stated statute tells the board what to do and gives the method. He
stated District Court will have to resolve whether the Board of County Commissioners followed
statute. Mr. Bendelow reiterated the decision was specifically made to include the dissolution
provision in the resolution and not the Service Plan, which is why it is relevant to these
proceedings. Responding to Commissioner Geile's question regarding why Mead should have
standing in the negotiations, Mr. Bendelow indicated the notice requirement to municipalities within
three miles, as well as the other parties listed. He further stated the notice requirement is to allow
those parties to participate in the process instead of allowing for a one-sided scenario.
Chair Jerke noted, for the record, that Mr. Barker has come to the table, and referred to him for his
response. Mr. Barker stated the discussions with Mr. Collins prior to the February 14, 2005,
hearing, were completely in line with what we typically do for all land use decisions. He stated the
resolution is drafted to be presented to the Board, and it allows the applicant the opportunity of
requesting the inclusion of anything they want to see in the approval. He stated that in twelve years
of serving as County Attorney, he has never been accused of providing something to the Board,
negotiating it out and then providing it to the Board prior to a hearing. He assured the Board that
he did not provide any sort of information or resolution to the Board or any member of the Board
prior to the date of the hearing, and he made certain that he did not do so. He stated it is offensive
to him to be accused of doing so, and stated it did not occur. Mr. Barker stated the draft resolution
presented on February 14, 2005, was the same as is offered on any land use case heard by the
Board. He stated the Board has the opportunity to hear both sides, then look at the draft resolution
and decide whether to amend it, approve it, or deny it. Mr. Barker stated that the discussion
regarding whether the dissolution condition should be part of the resolution or the Service Plan,
seemed to indicate it was best to place it in the resolution, and the applicant is now requesting it
be put into the Service Plan. He stated it was put into the resolution to save time. Chair Jerke
stated the Board instructs County staff to work with all applicants for land use cases, in order to
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allow for civil discourse and a friendly atmosphere in which individuals can discuss back and forth
with both staff and attorneys, to get the application to a point where it makes sense. He stated he
is proud that staff is friendly and works with all applicants, and he defends that process.
For the record, Mr. Bendelow specifically indicated e-mails dated January 25, 2005, February 7,
8, 9, 11, 14, 15, and 16, 2005, wherein negotiations were conducted back and forth between Mr.
Barker and Mr. Collins. He further indicated an e-mail dated February 7, 2005, in which it was
indicated that there was ex-parte communication between one of the Board Members and a
proponent,which further violates the statute. Chair Jerke stated the conversation mentioned in the
February 7, 2005, e-mail was regarding a potential study on land use the County is in the process
of working on for that general area. He stated the County has been contemplating sewer,
transportation, and a host of amenities throughout the general area and how it could be served.
Mr. Bendelow read the last paragraph of the February 7, 2005, e-mail. He stated it is the position
of the Town of Mead that approval of the request is erroneous, pursuant to Section 32-1-204(4),
which is the very section cited by the proponents and somewhat addresses the issue the Chair
questioned. Mr. Bendelow stated there should have been conditional approval by the Board,which
in turn, resulted in a continuation of the proceedings until the conditions were incorporated into the
plan, as required by statute. He stated that was not done, and the proponents are now trying to
remedy their error by amending the plan with the condition being included. He stated the prior
resolution should be deemed void or not in effect. Mr. Bendelow further stated the Board did not
modify the plan before issuing the resolution and approving the plan, therefore, the initial plan is
erroneous, and this process by which they request an amendment, is erroneous. He stated they
have to start over again at the beginning. He further cited Section 32-1-203(1) and 32-1-204(4).
Mr. Bendelow stated the Board does not have jurisdiction to act on this at this time, since it issued
a final decision and has lost jurisdiction to act. He stated the Board's decision is pending before
District Court, pursuant to Colorado Rules of Civil Procedure 106. He stated there was no
conditional approval in the prior plan since the Board took final action, and this is not a case
wherein a plan was approved by District Court and then heard a second time because of a change
or for reconsideration. Mr. Bendelow stated this is the base approval itself, which was a final
decision of this Board, which has lost jurisdiction to consider this amendment. He further stated
that the plan is ineligible for approval at this time, under 32-1-203(2), since it is not capable of
providing services and must go through a multi-step process involving multiple governmental
approvals regarding modification of the 208 boundary before it will be capable of providing services.
Mr. Bendelow stated that the Board has violated Weld County's Comprehensive Plan in its approval
and reconsideration at this time. He referenced, from Tab D, Department of Planning Services
staff comments to Mr. Barker, concerning another special district, Resource Colorado Sanitation
Metropolitan District. He stated that staff details, through chapter and verse of the Comprehensive
Plan, the violations in that proposal. Mr. Bendelow stated the name East 1-25 can be substituted
for Resource, and it is exactly the same. He stated Planning Commission staff comments further
support his opinion, included in Tab F. He stated both items from staff indicate the plan violates
the Comprehensive Plan of Weld County. Referencing Tab E, Mr. Bendelow stated, the Town of
Hudson, for which you could substitute Mead, had exactly the same criticisms as Mead, although
the Town of Hudson concerns were regarding Resource. He stated two small municipalities
indicated it was wrong, the Planning staff, in both scenarios has stated the Comprehensive Plan
has been violated, and the Longmont City Council, which is also included, indicating its opposition
and making the same argument as Weld County planning staff and health department staff. Mr.
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Bendelow summarized that this plan involves a district over 20 square miles or 13,000 acres,which
is bigger than any municipality in this County, and is one of the largest aggregations of land in the
State of Colorado, installing infrastructure in a sewer with no Comprehensive Plan, no
determination of density, and no determination of any other element involved, which violates every
tenant of good government. He stated the developers are pitting municipalities against the County.
He referenced the Board's many comments at the last hearing about an individual's right to develop
his own property, and stated that is not what is happening. He stated this amendment is a huge
change to the Service Plan. He apologized for any offense, but stated he has to make record of -
these items.
There being no further testimony offered, the Chair offered Mr. Collins an opportunity to rebut any
testimony. Mr. Collins agreed that the proposed amendment is not the exact wording from the
February resolution. He presented Exhibit D,which is the exact wording, and stated which wording
is adopted does not matter to him. He stated he always works with the County Attorney, and, in
this case, was specifically directed to work with the County Attorney by the Planning Commission
to work out the final verbiage. Mr. Collins stated he was not required to give any notice, and this
is a continued proceeding, since the Service Plan or the Board's resolution has not been filed
District Court. He further stated the reason he has not filed is the litigation from the Town of Mead,
the obvious intent of which is to make the applicant exceed the one year period of time. He stated
he has no other substantive response to any of the testimony, except to say proper notice has been
given, and this is a proper proceeding. He reiterated nothing is being changed, he is only
requesting the dissolution paragraph be included in the Service Plan rather than the approval
resolution, as Mead's attorney has told District Court should have been done in the first place.
Responding to Chair Jerke, Mr. Collins indicated in order to eliminate more discussion at the
District Court level, he would prefer the exact wording from the condition in the resolution be
included, which is marked Exhibit D.
Responding to Commissioner Geile, Mr. Morrison stated the hearing in February was treated as
a quasi-judicial matter, and it remained quasi-judicial because of the pending condition; however,
he stated there is a pending issue to determine whether a Special District is quasi-judicial or
legislative. Mr. Morrison stated when it is in doubt,we have treated it as quasi-judicial for purposes
of avoiding ex-parte communication. Commissioner Geile stated the County is currently working
on a study of this area, and staff have talked to various mayors in the area. Although there have
been some glitches, the County has now sent it out to be rebid, and staff have had many
conversations with other officials throughout the County. Responding to Commissioner Geile, Mr.
Morrison stated the Board does not have control over the case that comes to it. He stated that the
Board's activities involve related issues, such as the study in the area, and he indicated the issue
in the e-mail referred to by Mr. Bendelow related to said study, it is not ex-parte communications
to discuss the related issue. He stated such discussions are not going to the issue of whether or
not to approve the service plan. Responding to Commissioner Geile, Mr. Morrison and Mr. Barker
both stated they are not aware of any instance when any member of the Board of County
Commissioners violated its quasi-judicial nature.
Chair Jerke stated the Board needs to determine which verbiage should be included in the Service
Plan as the amendment. Responding to Commissioner Masden, Mr. Morrison stated both would
accomplish the purpose; however, if the issue is whether the language in the previous resolution
should be transposed to the Service Plan, the verbiage should follow the exact wording in the
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should be transposed to the Service Plan, the verbiage should follow the exact wording in the
resolution,which is Exhibit D. Responding to Chair Jerke, Mr. Barker stated he concurs with that
opinion,and further stated he reviewed the language and was satisfied it met the condition that the
Planning Commission had recommended. He also stated he is more comfortable using the
language that was in the previous resolution, since it was recommended by the Planning
Commission. Commissioner Masden moved to include the verbiage in Exhibit D as Section 1.6.
Seconded by Commissioner Long,the motion carried unanimously. Commissioner Geile moved
to approve the Modified service plan. The motion was seconded by Commissioner Masden. Mr.
Morrison clarified that the Board was accepting the amendment which was done by the proponent.
Commissioner Geile amended his motion to so state, and Commissioner Masden agreed. The
motion carried unanimously on a roll call vote. There being no further discussion,the hearing was
completed at 11:00 a.m.
This Certification was approved on the 8th day of August 2005.
APPROVED:
IE lI 1 BOARD OF COUNTY COMMISSIONERS
�r� WELD COUNTY, COLORADO
1861 � I �
l
j �u" 4' William H. e, Chair
I. • +" Clerk to the Board
Sea
M. . ei -, Pro-Tem
BY:
Deputy Clerk to the Boar a
D
TAPE #2005-30
l k
Robert D. Masd
Glenn Vaad
2005-2521
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