HomeMy WebLinkAbout20042607.tiff HEARING CERTIFICATION
DOCKET NO. 2004-85
RE: CHANGE OF ZONE, MZ #547, FROM THE A (AGRICULTURAL) ZONE DISTRICT TO
THE E (ESTATE) ZONE DISTRICT FOR A NINE (9) LOT MINOR SUBDIVISION -
OLANDO, LLC / ED ORR AND TAMMY ELLERMAN
A public hearing was conducted on September 29,2004,at 10:00 a.m.,with the following present:
Commissioner Robert D. Masden, Chair
Commissioner William H. Jerke, Pro-Tem
Commissioner M. J. Geile
Commissioner David E. Long - EXCUSED
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Esther Gesick
County Attorney, Bruce Barker
Planning Department representative, Sheri Lockman
Health Department representative, Trevor Jiricek
Public Works representative, Peter Schei
The following business was transacted:
I hereby certify that pursuant to a notice dated September 3,2004,and duly published September 8,
2004, in the Fort Lupton Press,a public hearing was conducted to consider the request of Olando,
LLC,do Ed Orr and Tammy Ellerman,for Change of Zone,MZ#547,from the A(Agricultural)Zone
District to the E (Estate)Zone District for a nine (9)lot Minor Subdivision. Chair Masden advised
the applicant's representative,Todd Hodges,Todd Hodges Design,LLC,that the applicant has the
option of continuing this matter to a date when the full Board will be present. However,if they decide
to proceed today, it will require three affirmative votes, or in the case of a tie vote, Commissioner
Long will listen to the record and make the determining vote. Mr. Hodges indicated they would like
to proceed today. Bruce Barker, County Attorney, made this a matter of record.
Sheri Lockman, Department of Planning Services, presented a brief summary of the proposal and
entered the favorable recommendation of the Planning Commission into the record as written. She
gave a brief description of location of the site and surrounding land uses. She stated 12 referral
agencies reviewed this proposal, ten provided comments that have been addressed in the
Conditions of Approval and Development Standards, and staff received no correspondence from
surrounding property owners. Ms. Lockman stated the Planning Commission has recommended
this request be denied based on the lack of irrigation water and incompatibilities with the nearby
3,000-head dairy permitted under Amended Use by Special Review#820. She submitted a letter
from the applicant, marked Exhibit G, requesting the removal of Conditions#1.A.3 and#1.E. She
explained the applicant is still working with the School District and the Colorado Department of
Transportation(CDOT)to determine the best location for the bus pull-off,therefore,contrary to their
letter,Condition#1.A.3 needs to remain in effect. She further stated Condition#1.E addresses the
two existing wells,and the applicant has indicated the wells were never drilled and the permits have
expired, therefore, that Condition can be removed. In response to Commissioner Jerke, Ms.
Lockman stated the site is 73 acres, with an average lot size of eight acres. She explained the
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HEARING CERTIFICATION - OLANDO, LLC (MZ#547)
PAGE 2
request for a Planned Unit Development on this parcel was denied by the Board; however, a
Substantial Change request was approved,which allowed them to apply for this Minor Subdivision.
Trevor Jiricek, Department of Public Health and Environment, stated the lot sizes exceed County
policy for septic systems, and water will be provided by the North Weld County Water District.
Peter Schei,Department of Public Works,stated the site will be accessed from State Highway 392,
and it will meet the Department of Public Works' standards.
Chair Masden recessed the hearing until 1:30. Upon reconvening, Mr. Hodges stated this
application is being submitted by different individuals than those who applied for the Change of Zone
to a PUD. He gave a brief description of the location and stated the lots will range in size from 5.14
acres to 15.2 acres on a total of 75 acres. He stated the access permit has been obtained from
CDOT,and they are proposing to pave the internal road for dust suppression,which exceeds Minor
Subdivision requirements. Mr. Hodges stated the applicants have worked with the School District,
they are still working with CDOT to determine the best location for the bus pull-off, and they will
provide evidence to staff once the exact placement is designated. He further stated oil and gas
operations do exist on the site,and they have accommodated the 150-foot and 200-foot setback and
drilling envelopes. He reviewed the surrounding land uses,and he displayed photographs of the site
and surrounding area, marked Exhibit J. He stated throughout this process there has been
significant discussion regarding the potential conflicts between the proposed development and the
existing dairy,and that was the Planning Commission's primary basis for denial. Mr. Hodges stated
he conducted a study of a nine-square-mile area surrounding the site,which included 202 parcels,
marked Exhibit K,and he reviewed the corresponding color coding and percentages for the record.
He stated this information shows the proposal is consistent with the surrounding area.
Commissioner Jerke commented that while there may have been many parcels created through
the Recorded Exemption process in the area,the data needs to reflect that most consist of a small
residential parcel and a large parcel that remains in agricultural production. Mr. Hodges concurred
and stated they restricted their study to parcel numbers rather than specific uses on each. He
stated in response to two letters of concern submitted by surrounding property owners,the applicant
met with neighbors and tried to address their concerns. He further stated ten of the twelve referral
responses were favorable or the concerns have been addressed in the Conditions of Approval.
Alan Overton,North Weld County Water District,stated they have proposed an agreement to extend
an eight-inch line from Weld County Road 55 to the site which would also provide fire flows and be
an improvement to the area. He stated the primary difference between this and the previous
application is that they will be extending a larger water line rather than using the existing line and well
water. In response to Commissioner Geile,Mr.Overton stated with the fire flow,this development
will use 50 percent of the line's capacity, and once it is connected to the rest of the system, it will
be a significant improvement to the area. Responding to Chair Masden, Mr. Overton stated the
District is currently serving the area with reduced pressure, and until the new line is extended
beyond this development,there will be no improvements for the existing residents. He further stated
he is the District Engineer,and they have the option of bringing in Colorado Big Thompson or North
Poudre water or they can do a cash-in-lieu arrangement. He stated the applicant also has the option
of buying or leasing additional shares of water if they are available; however, that will have a
significant cost. Mr. Overton stated the standard use in this area is 70 percent of an acre foot per
year, and he reviewed the District's storage options during shortage years.
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Ed Orr,applicant,stated this proposal will be compatible and raise surrounding property values due
to quality,stick-built or manufactured homes,as well as Covenants that will elevate standards in the
area. He stated the Covenants will include pasture management criteria to ensure they do not
encounter dust problems due to lack of vegetation, they will use an appropriate seeding program
based on the soils, and they will not allow overgrazing of pastures. In response to Chair Masden,
Mr. Orr stated they will use the advice of the Soil Conservation District, as well as implementing
grazing practices that prevent overgrazing. He stated the Homeowners'Association will also have
the ability to require residents to corral and feed their animals until an area is re-vegetated. He
further stated the future homeowners will be required to agree to the Covenants when they purchase
a lot,and they will be enforceable by the other members in the Homeowners'Association. He stated
the average lot size will be eight acres in an area that has 93 other parcels of the same size,which
represents 46 percent of the parcels in a nine-square-mile area. He stated this property is allowed
300 animal units as a Use by Right; however, that number will be restricted to 60 under this
application. He further stated the owners of the dairy have not expressed opposition or concern
regarding compatibility, potential purchasers will be made aware of the surrounding uses so they
can choose to locate elsewhere if they do not like the dairy, and he reviewed other dairies north of
Greeley that are coexisting with residential growth. Mr. Hodges requested Condition#1.C be deleted
because it restricts building from occurring within a large envelope on Lots 6 and 7,and it impedes
the surface rights, although drilling may never occur. He noted the lots are large and still have
enough room for building, but the area is very restricted. In response to Commissioner Jerke, Ms.
Lockman explained this language is included in the event there is no agreement between the
surface owner and the oil and gas company. Mr. Barker concurred and stated the oil and gas
companies have a right to be there and drill. Chair Masden commented the amount of area required
for a drilling operation is significantly less than the drilling window which provides them with options
of where to drill. Mr. Barker stated agreements typically establish the specific drilling locations, in
which case a large drilling window does not need to be accommodated. Mr. Orr stated the
proposed agreement from the oil and gas company was completely unacceptable,and the company
did not respond to the agreement provided by the applicant, despite the fact that it did not infringe
on their rights. In response to Commissioner Jerke, Mr. Orr stated the two lots combined are
approximately 13 acres,and the drilling window will take up half of that space. He added placing a
house anywhere on the lots will not preclude the oil and gas company from coming in to drill, and
there will be adequate room to meet the setback requirements. In response to Commissioner
Jerke, Mr. Barker explained the Oil and Gas Commission has two rules that deal with the different
mineral formations,and the window size indicates what depth they can drill to. CommissionerJerke
commented when he was in the legislature,he and Tom Norton carried the Bill that provided for the
center quarter section drilling windows. However, it was not his intent to prohibit development,
rather, it was to preserve the center of a quarter section to allow for oil and gas exploration. Chair
Masden explained companies do have the ability of producing up to four formations out of one well
boring; however, if the formations are owned by two different companies, each may require up to
an acre of space. Commissioner Jerke commented he is agreeable to reducing this envelope to
200 feet by 200 feet. Mr. Barker stated the envelopes are not subject to change because the size
is established by State statute depending on which formation is being drilled. In response to
Commissioner Geile, Mr. Orr stated he is the President of Olando, LLC, and he purchased the
property in May 2003. He stated the Covenants will provide for an architectural review committee,
which will consist of himself until the last lot is sold. He stated the Covenants will be ready at the
time of Final Plan, and they will be at a standard that is compatible with, or exceeds, the area
regarding house size, exterior materials, variation in roof pitches, and soffit and fascia.
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Mr. Hodges stated the primary issue of concern is compatibility with the dairy that is within one mile
of the site. He stated the dairy is responsible for operating in accordance with terms of the Use by
Special Review Permit, which includes compatibility with existing and future land use rights. He
stated since the dairy expansion, 23 parcels have been created, which is 11 percent of the total
area. He stated those parcels were created through a process that does not place the same
restrictions as this Minor Subdivision. He stated this will be a low-intensity development, it is
surrounded by similar rural developments,the area can support development,and the applicant has
strived to ensure compatibility with the surrounding land uses. Mr. Hodges stated they recognize
this is an agricultural area, and he reviewed the criteria for approval included in Exhibit J.
Cindy Vance,surrounding property owner,stated the area residents have had numerous conflicts
with the dairy during the past ten years, although the last two years have improved. She also
expressed concern regarding traffic that runs the stop sign on Weld County Road 55 at Highway
392, and the likelihood that more homes will increase the number of accidents she reports since
she lives on that corner. She stated the speed limit has been increased from 55 to 65 miles per
hours all the way to the Town of Lucerne, and she expressed concern for bus pickup safety. She
stated the Covenants have not been proposed or made available for the surrounding residents to
review. (Switched to Tape #2004-45.) Ms. Vance stated the existing residents should not be
responsible for the cost of bringing the new water line into this development. She stated the odor
from alfalfa and silage stored on the site south of the dairy is also a concern. Mr.Jiricek stated that
is a use allowed by right,and although staff has received complaints,they do not have any means
of enforcement.
Dale Dilka,surrounding property owner,stated since the subject site was sold to the current owner,
it has not been farmed, contrary to many of the small parcels in the area that were created to sell
off in an effort to keep the main farms running. He stated the North Weld County Water District has
committed to serving this site; however,they already have pressure problems in the area due to the
tremendous consumption by the dairy. Mr. Dilka stated when the dairy was approved, it was
determined this is an agricultural area, yet today's discussion implies residential development is
more the trend. He stated Highway 392 carries a significant amount of traffic,and a bus stop at the
foot of a hill with high speed traffic is a hazard. He further stated this property has been
recommended for denial twice and the current proposal should also be denied. There being no
further comments, Chair Masden closed public testimony.
Commissioner Jerke stated this type of development is allowed to happen under the
Comprehensive Plan,and the applicant has provided testimony giving examples where dairies and
residential development do coexist. He stated there was a time when water and sewer was a
dilemma at this site; however, that has been corrected. He further stated the interior road will be
paved, and CDOT did not comment regarding a rise on Highway 392 leading to this location.
Commissioner Jerke stated the proposal does fit in with a changing area, and although irrigation
water is preferable, it is not required with this type of development, and specialized types of
landscaping is possible. He stated restricting surface use in the 800-foot by 800-foot oil and gas
drilling windows was not the original intent of the law, and he feels a 400-foot by 400-foot drilling
window will be adequate to accommodate the oil and gas activities in this area.
In response to Commissioner Vaad, Mr. Hodges stated the School District has agreed to a pull-off
in the Highway right-of-way outside of the driving lanes because it did not want to enter the
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development,and that proposal is currently being reviewed by CDOT. He stated that issue will have
to be resolved prior to recording the plat. He further stated CDOT approved the access permit and
found the impact of this development on the Highway would be insignificant. Mr. Hodges stated
there is a significant cost associated with preparing Covenants and they are not required as part of
the Change of Zone process; however,the applicant is on the record stating what will be included
and they will be submitted with the Final Plan. He clarified the developer will be paying for the water
line extension,and any further extension beyond this development will likely be the responsibility of
the people who benefit from the project. He stated this site is no longer viable for farming due to the
lack of irrigation water,and he reiterated that although agricultural uses still exist in the area,a large
number of parcels have been created that are a similar size to the proposed lots. He further stated
development under the Minor Subdivision process requires much higher scrutiny and criteria,the
site is one-quarter of a mile from the nearest property,the dairy operator has plated a row of trees
along Weld County Road 55 to help mitigate neighborhood concerns, and compatibility is the
responsibility of both the developer and the dairy. In response to Chair Masden, Mr. Hodges stated
he and the applicant have reviewed and agree with the Conditions of Approval as proposed and
modified, with the request that Condition #1.C be deleted; however, the applicant is willing to
accommodate the requirement, if required. Chair Masden stated the size of the oil and gas window
is mandated by State statute and the Oil and Gas Commission. He encouraged them to work with
the oil and gas operator to establish drilling sites and building envelopes. Mr. Hodges stated the
Condition does provide the flexibility of eliminating the 800-foot by 800-foot drilling window if the
applicant provides evidence of an agreement with the oil and gas company. In response to
Commissioner Geile, Mr. Barker stated there is a third provision that is not addressed in
Condition#1.C,which implies the issue has been taken care of if there are wells producing at this
site. He stated the letter from Petroleum Development Corporation indicates there are two wells
existing on the site,so the requirement for a drilling envelope may be a mute issue,and placing the
drilling envelope does not preclude the surface use or mineral use. In response to Commissioner
Jerke, Ms. Lockman stated this is the third subdivision that has had this requirement,and it seems
applicants have been having increasing difficulties in coming to an agreement with the oil and gas
companies.
Commissioner Geile stated he finds the applicant has shown compliance with Section 23-2-40.B.1,
specifically, Section 22-2-190.A (R.Goal 1) because the applicant has addressed the water and
sewer issues with the extension of an eight-inch water line that will be a benefit to the area and
septic systems that meet the rules and regulations of the Department of Public Health and
Environment. He also referenced Section 22-2-190.6.3(R.Policy 2.3)and stated the applicant is
on the record as to what types of homes they will build and how they will be compatible with the
area, which will be subject to further review by the Board at the Final Plan. Commissioner Geile
cited Section 22-2-190.G (R.Goal 7) and stated the applicant has demonstrated there are other
areas in the County where dairies and feedlots do coexist with residential development. He stated
the applicant has also shown compliance with Sections 23-2-40.6.2 and B.3,regarding compatibility
with surrounding land uses and adequate water and sewer service,as well as Section 23-2-40.B.4
regarding street or highway facilities since they do have agreements in place and an access permit
with CDOT.
Based on those comments, Commissioner Geile moved to approve the request of Olando, LLC,
c/o Ed Orr and Tammy Ellerman, for Change of Zone, MZ#547, from the A (Agricultural) Zone
District to the E (Estate)Zone District for a nine (9) lot Minor Subdivision, with the Conditions of
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HEARING CERTIFICATION - OLANDO, LLC (MZ#547)
PAGE 6
Approval as entered into the record. His motion included deleting Condition of Approval#1.E. The
motion was seconded by CommissionerJerke,and it carried unanimously. There being no further
discussion, the hearing was completed at 3:10 p.m.
(Clerk's Note:Following the hearing the applicant and Public Works staff discovered a clerical error
in the referral response which was also reflected in Condition of Approval #3.J, therefore, the
Condition was corrected to require an Improvements Agreement for Public Road Maintenance,
rather than Private Road Maintenance.)
This Certification was approved on the 4th day of October 2004.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
W COUNTY, fCOLORADO
: M4iU Robert D. Masden, Chair
r o% Clerk to the Board
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William A H. ke, Pro-Tem
(? ar Clerk to the Board -7�� _ -Pit,
ff1 W M. J. Gene
TAPE #2004-44 and #2004-45 EXCUSED
David E. Long
DOCKET#2004-85
Glenn Vaad
2004-2607
PL1508
EXHIBIT INVENTORY CONTROL SHEET
Case MZ#547 - OLANDO, LLC / ED ORR AND TAMMY ELLERMAN
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 08/03/2004)
D. Clerk to the Board Notice of Hearing
E. Applicant Letter indicating intent to proceed,
08/20/2004
F. Planning Staff Certification and Photo of sign posting
G. Applicant Letter re: Conditions of Approval and
attached Well Permits, dated 09/23/2004
H. Julie Boyle Letter of Opposition, dated 09/27/2004
Various residents Petition of Opposition, dated 09/29/2004
J. Applicant 22 Overhead slides
K. Applicant Surrounding Property information
L.
M.
N.
O.
P.
Q.
R.
S.
T.
U.
V.
ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 29TH DAY OF SEPTEMBER, 2004:
DOCKET#2004-84 - Beau and Jed Rappel
DOCKET#2004-86 - Highland Acquisition Group, LLC
DOCKET#2004-85 - Olando, LLC / Ed Orr and Tammy Ellerman
PLEASE legibly write or print your name and complete address.
NAME ADDRESS
John Doe , .----D/
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ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 29TH DAY OF SEPTEMBER, 2004:
DOCKET#2004-84 - Beau and Jed Rappel
DOCKET#2004-86 - Highland Acquisition Group, LLC
DOCKET#2004-85 - Olando, LLC / Ed Orr and Tammy Ellerman
PLEASE legibly write or print your name and complete address.
NAME ADDRESS
John Doe 123 Nowhere Street, City, State, Zip
-11(„„l;\ 330 330 )0lCC z s5 A\ CC) x(;3`4
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