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J_ 3 2003-0911
•
b� WELD COUNTY ATTORNEY'S OFFICE
f _ ' 915 TENTH STREET
P.O. BOX 758
GREELEY, CO 80632
I WEBSITE: www.co.weld.co.us
PHONE: (970) 336-7235
FAX: (970) 352-0242
•
COLORADO
March 27, 2003
Paul G. Gesso
Banks and Gesso, LLC
720 Kipling Street, Suite 117
Lakewood, CO 80215
RE: Your Letter Dated March 21, 2003
Mr Gesso:
I have been assigned to review the concerns you have expressed in your letter of March 21, 2003
regarding what constitutes adequate water supply sufficient to allow proceeding with an
application for a Special Use Permit. You have raised a number of significant points which merit
consideration and I will be reviewing those issues and discuss them with the Planning
Department in the next several days.
Please contact me directly if you require further information.
Yours truly,
r.
' (11
L$e D. Morrison
Assistant Weld County Attorney
pc: Bruce Barker
Board of County Commissioners
Monica Daniels-Mika
Kim Ogle
Chris Gatham
M:\WPFILES\LET\GESSO.WPD
IME Banks and Gesso, LLC 720 Kipling St.,Suite117
■■ . '`• ciplrvood, Colorado 80215
i- ' - (303) 274-4277
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nc; , : Fja x (303)274-8329
www.banksandgesso.com
March 21, 2003
William Jerke, Board of County Commissioners
Weld County Colorado
915 10th Street
P.O. Box 758
Greeley, Colorado 80632
RE: Attached Letter to the Planning Department
Dear Commissioner Jerke:
Attached please find a letter regarding a recent policy adopted by the Planning
Department pertaining to acceptance of cases for review. It is our opinion, and that of
many of our clients, that this policy is not in the best interest of the sand and gravel
industry, the agricultural community, the water districts and water storage community,
nor in the best interests of Weld County.
We would hope that this policy can be changed as soon as possible.
Res ctfully,
Paul G. Gesso
ME Banks and Gesso, LLC 720 Kipling St.,Suite117
■■ Lakewood, Colorado 80215
(303) 274-4277
Fax (303) 274-8329
www.banksandgesso.com
March 21, 2003
Monica Daniels-Mika Planning Director
Kim Ogle Lead Planner
Chris Gathman Case Planner
Weld County Planning Department
1555 N. 17th Avenue
Greeley, Colorado 80631
RE: Appeal of County Policy Concerning "ADEQUATE WATER SUPPLY" as the
Policy Pertains to Applications for Sand and Gravel Mining under the
County Special Review Process
Ms. Daniels-Mika, Mr. Ogle, and Mr. Gathman:
As you probably know, Banks and Gesso, LLC represents many sand and gravel
producers and has, over the years, processed many Use by Special Review applications
through your offices on behalf of these clients. While submitting two new applications
this month, it was brought to our attention that a change in policy concerning acceptance
for processing has been established. This change specifically applies to a requirement
that "Evidence of adequate water supply(e.g. well permit or letter from water
district)"be submitted with the application and that the Planning Staff interprets this to
mean an approved "Change in Use Permit"from the State Engineers Office that
changes the use of a water well from agricultural use to commercial use for gravel
mining applications.
This appears to be a major departure from past Planning Department practice whereby
an application was accepted and the conformance to Colorado Water Law and the rules
and regulations of the State Engineer's Office was pursued separately, generally being
made a condition of plat approval and filing. It is our opinion that the past policy made
eminent sense. Because the local land use approval process is the most risky of the
entire permit process required of mining, if and only if the local land use is approved
does it then become reasonable to pursue the myriad of other permits needed to bring
one of these operations on line, including conformance with the SEO's requirements and
State Water Law.
In a discussion with Mr. Gathman this past week, it was explained to us that the reason
for the apparent change in policy was that the Planning Staff has received direction from
the Board of County Commissioners to"have all of these loose ends tied up" before a
case reaches the Commissioners for review.
There are numerous problems with this change of policy that not only adversely impact
the mining community, but the agricultural community, and the water storage community
1
as well. Further, the policy change puts the County (and the Planning Department in
particular) in the peculiar position of becoming an enforcement entity for the State
Engineers Office (SEO).
The impact on the agricultural community is perhaps the most severe. To understand
this impact, it is important to understand the prevailing method used by mining
companies to acquire agricultural lands. A vast majority of the time, companies will
enter into "Contracts to Purchase"with a farmer that are almost always contingent upon
successful acquisition of necessary land use permits. The contracts often have a period
of time between six to nine months (some as long as twelve months), where the
landowner gives the purchaser the time to obtain local zoning approval and approval
through the Colorado Mined Land Reclamation Board. These two types of approvals are
the most important approvals needed for mining. As soon as these two approvals are
obtained, the mining company will close on the transaction with the agricultural
landowner. Closing on the transaction prior to approval of those permits is too risky for
the mining companies and rarely happens. Generally, the agricultural water well rights
and any agricultural ditch rights associated with the property are included in the
transaction. Your revised policy impacts the agricultural community in two ways:
1) It extends the time frame for the landowner unnecessarily from the time they
enter into a contract until the time the contract can close. In most cases this can
be a hardship on the landowner.
2) It requires that the landowner sign-off on a change-in-use permit that will allow
their agricultural well to be changed to a commercial well before a Special Use
Permit can even be applied for. Before a change-in-use permit can be applied
for, the landowner must first receive approval of a TSSP from the SEO that will
appropriate their water for augmentation of a commercial well. Once these
permits are approved by the SEO, the agricultural landowner is then stuck with a
commercial well regardless of whether the mining operation for which their
purchase contracts are contingent upon is ever approved. Because it is nearly
impossible to change the use of a well back to agricultural use, if the sale of the
land and water rights falls through (perhaps by a denial of the county permit), the
farmer is then stuck with a well permit that cannot be used.
The change in policy also has an impact on water districts and water storage companies.
Water districts and storage companies will often wait until they are assured that the
County and State approvals have been gained prior to entering into storage agreements
or agreements to purchase the water storage reservoir. During this time of drought, it
would seem incumbent upon everyone to expedite this process rather than throw out
time consuming and expensive roadblocks that unnecessarily hold up the process.
The policy change also impacts the mining industry. As alluded to above, in order to
produce a "Change in Use" permit from the State Engineers Office for a water well to be
converted to commercial use, the applicant must prepare and gain approval of a
"Temporary Substitute Supply Plan" (TSSP) through the SEO. Then, and only then, can
a Change in Use permit be applied for and granted by the SEO. Recent changes in
state regulations, which require all wells to have an approved TSSP associated with
them has created an enormous influx of well permits and TSSP's received at the SEO
for review and approval. The SEO has contracted with two companies to review TSSP's
and both of these companies have indicated a considerable backlog of review work. It is
now taking several months to gain approval of a TSSP, and another several months
2
before a change-in-use permit is approved by the SEO. Further, TSSP applications can
range between $12,000 and $15,000 just for the water engineering work. Weld County's
current policy has imposed an unreasonable timeframe and cost to be borne by an
applicant prior to being able to even apply for local land use approval.
County staff has indicated that the reason behind this policy is to provide assurance that
a use is not approved that does not have an adequate water supply. We believe that by
placing the acquisition of commercial well permits as a condition of plat recordation on a
permit, which has been done in the past, the County has created an adequate tool for
back-checking an approved land use. Since a final approved plat must be recorded
before a new use can begin on a property, the approved use effectively becomes null
and void if an applicant does not receive a commercial well permit (or other adequate
water supply) prior to the plat recordation deadline.
Finally, I stated that the County staff, as a result of adopting this approach, has placed
itself in the position of enforcing SEC Rules and Regulations and also enforcing State
Water Laws. We feel this is hardly appropriate.
We see these consequences, both absolute and potential, as being counter-productive
for Weld County, the mining industry, the water storage community, and particularly the
agricultural community and private landowner. We request that you reconsider this
particular policy and require TSSP's and water Change of Use permits to be a condition
of plat recordation.
Sin rely,
Paul G. Gesso
Cc: Weld County Board of County Commissioners
Weld County Planning Commission
Assistant Weld County Attorney— Mr. Lee Morrison
3
,-
E. Banks and Gesso, L.-en.)- 720 Kipling St.,Suite117
■■ = Lakewood, Colorado 80215
AEC:
, ) (303) 274-4277
Fax (303)274-8329
www.banksandgesso.com
April 21, 2003
M. J. Geile
Weld County Board of County Commissioners
915 10th Street
Greeley, Colorado 80632
RE: Special Use Requirement for "Proof of Adequate Water" in Conjunction
with Sand and Gravel Mining Applications
Dear Commissioner Geile:
I wanted to take a minute to thank the Weld County Commissioners, the Planning
Commission, the Planning Staff, and Lee Morrison for the very quick response to the
concerns expressed in my letter dated March 21s`
I received a letter dated April 17th from Kim Ogle outlining the new requirements and will
pass this information on to our clients and others within the industry.
During the course of my discussions with Lee Morrison, I was advised that the Board of
County Commissioners and Planning Staff have experienced some frustrations with
applicants' failure to fulfill conditions and record plats in a timely manner following permit
approval. We share your frustrations. As a result, we have discussed this issue with
some of our clients and also with the Colorado Rock Products Association Regulatory
Committee. Connie Davis of Aggregate Industries and I are working with the producers
to determine possible solutions to the problem. Just briefly, we feel that some of the
problem stems from the myriad of permits that we must obtain from local, state, and
federal agencies, the timing of obtaining these permits, and the occasional overlapping
of jurisdiction over the issues involved.
As we progress with examination of this issue, we would propose to enter into an open
dialogue with the County in an effort to facilitate a process through which these issues
can be resolved to the benefit of both the County and the producers.
Again, thank you.
Sinc ly,
Paul G. Gesso
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