HomeMy WebLinkAbout941594.tiff_ .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
BOARD OF COUNTY COMMISSIONERS
COUNTY OF WELD, STATE OF COLORADO
TRANSCRIPT OF PUBLIC HEARING
IN RE: TWO MINOR SUBDIVISION FINAL PLATS (WHITETAIL #1 AND
#2 ) - IVAR AND DONNA LARSON
PURSUANT TO NOTICE to all parties in interest, the
above-entitled matter came for public hearing before the Weld
County Board of County Commissioners on February 23, 1994 , at
which time said matter was continued to March 9, 1994, at
which time said hearing was continued to March 16, 1994, at
915 10th Street, Greeley, Colorado, before Shelly Miller,
Deputy Clerk to the Board and Notary Public within and for the
State of Colorado, and TRANSCRIBED by Linda Bartholomew,
Rainbow' s End Typing Service.
I HEREBY CERTIFY that the attached transcript is a
complete and accurate account of the above-mentioned public
hearing.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Carol A. Harding
Deputy Clerk to the Board
941594
APPEARANCES:
BOARD OF COUNTY COMMISSIONERS
Constance Harbert, Chairman
W.H. (Bill) Webster, Pro-Tem
Dale Hall, Commissioner
Barbara Kirkmeyer, Commissioner
George Baxter, Commissioner —
WELD COUNTY ATTORNEY OF RECORD:
Lee D. Morrison, Esquire
Bruce Barker, Esquire
APPLICANTS :
Ivar Larson
Donna Larson
John Chilson, Esquire
ALSO PRESENT:
Shelly Miller, Acting Clerk to the Board
Monica Mika, Planning Department representative
Drew Scheltinga, County Engineer
2
940261
1 PROCEEDINGS
2 (February 23 , 1994 )
3
4 CHAIRMAN WEBSTER: Let the record show that all
5 five Commissioners are in attendance for the ten . o ' clock
6 hearing.
7 MR. MORRISON: I ' ll call both of these up at once if
8 that ' s alright . Docket Number 94-23 is the application of
9 Ivar and Donna Larson for a minor subdivision final plat,
10 Whitetail #2 , part of the East 1/2 of Section 14 , Township 4
11 North, Range 68 West of the 6th P .M. , Weld County, Colorado,
12 notice was published February 14 , 1994 .
13 The other one is 94-21 . It ' s a minor subdivision.
14 I 'm sorry, excuse me, I 'm reading from the wrong. The notice
15 was published February 10, 1994 for this date. There have
16 been amended notices done in anticipation of the hearing being
17 moved to March 9th.
18 Docket Number 94-21, the applicants are the same .
19 Part of the East 1/2 of Section 14 , Township 4 North, Range 68
20 West of the 6th P .M. , Weld County, Colorado . Notice was
21 originally published February 10 , 1994 , in the Windsor Beacon.
22 MS . MIKA: The applicants are proposing that these
23 two cases , S-350 and S-349 be continued until the March 9 ,
24 1994 , meeting.
25 CHAIRMAN WEBSTER: Monica, Long-range Planner,
3
940261
1 Planning Department, go ahead.
2 MS . MIKA: I 'm sorry. Monica Mika. Applicants would
3 like this continued until March 9th, 1994 .
4 COMMISSIONER HALL: So moved.
5 COMMISSIONER KIRKMEYER: Second.
6 CHAIRMAN WEBSTER: It' s been moved by Dale and
7 seconded by Barbara for the continuation of this application.
8 Any discussion? All in favor of the motion, say Aye .
9 COMMISSIONERS: Aye.
10 CHAIRMAN WEBSTER: Opposed?
11 (NO ANSWER)
12 CHAIRMAN WEBSTER: So moved. Go get in the
13 airplane, Connie.
14 MS . MIKA: I would like to enter into the record that
15 we did have one individual that was here and I let her know
16 that the case would be continued until March 9th, but I just
17 wanted to let you know.
18 COMMISSIONER HALL: Thank you .
19 MS . MIKA: You' re welcome .
20
4
940261
1 PROCEEDINGS
2 (March 9 , 1994 , Commissioner Kirkmeyer excused)
3
4 MR. CHILSON: Mr. Chairman, if I may, I 'm going to
5 have to leave. I don' t have any objection to your proceeding
6 to take the testimony on the minor subdivision application
7 from the objectors . Again, I feel it' s really hard on people
8 to have to keep taking off time to come here. I have no
9 objection being asked, however anything beyond that, I would
10 like to have continued until another date so I may be present
11 to represent my clients .
12 CHAIRMAN WEBSTER: Yes . The Larsons are in
13 attendance here so I feel that they have adequate
14 representations, if they do.
15 MR. CHILSON: There are some legal issues . This is
16 John Chilson again. There are some very important legal
17 issues involved with minor subdivisions, generally speaking in
18 the law of the State of Colorado, which apply to this minor
19 subdivision application. And that is why I have entered my
20 appearance on behalf of my clients in this proceeding. We
21 anticipated, I 'm sure we all anticipated that we'd be finished
22 by noon. But because the exemption process was placed ahead
23 of what we thought was going to be the schedule, we thought
24 the minor subdivision would come first. I did not make
25 provisions to try to continue my other matter. Because of
5
940261
1 that change in schedule, I am now faced with having to be in
2 the court under the eyes of a very serious judge and I do need
3 to be present to raise the legal issues with respect to the
4 minor subdivision that my clients are relying upon in seeking
5 your approval . And therefore, that 's why I respectfully
6 request that we give the opponents the opportunity to make
7 their record so they don' t have to come back, but that further
8 proceedings after that with staff and with the applicants,
9 that matter be continued to your next available date. It is
10 very important to my clients .
11 COMMISSIONER HARBERT: I understand that and I
12 understand the problem of our citizens out here who may be for
13 or against the minor subdivision and their testimony, but it' s
14 a little unfair to them and to us to have them testify before
15 there would ever be any presentation by you or your clients .
16 I mean, I don't know what they're supposed to testify against
17 if they don't actually know what' s going to take place.
18 MR. CHILSON: The factual matters were presented at
19 the Planning Commission and the objectors who are present here
20 were present there. And so they know what the minor
21 subdivision is about. They know all of the factual
22 presentation that is to be made. They've heard it before.
23 CHAIRMAN WEBSTER: I don' t believe you can quite
24 speak for them as to whether they do or not.
25 MR. CHILSON: Well, I was there too and I recognize
6
940261
1 these people as all having been there.
2 CHAIRMAN WEBSTER: But I 'd get a ruling here as to
3 comments from our legal counsel .
4 MR. BARKER: I guess a suggestion would be that any
5 legal arguments that need to be made as to, it sounds to me
6 like what you' re saying is that it does not necessarily depend
7 upon the facts . You ' re hearing the facts, but you have a
8 specific legal argument to make which, I think, you know I
9 would suggest that you could do that in writing and submit
10 that into the record or at least provide that and so that the
11 board can go ahead and hear the testimony as we normally do
12 from the Planning staff, from the applicant and then the
13 testimony from anyone who wants to speak either for or against
14 the proposal . And then any legal argument that you may have
15 you could put in writing and we can include that in the
16 record. Now the board would want to consider that prior to
17 actually making their decision, however, and that would cause
18 a problem in timing.
19 MR. CHILSON: Bruce, if that were all it were, I
20 would have suggested that. It does involve, you see, the
21 burden is upon the applicant here to create a record with
22 evidence before you upon which they can rely to obtain your
23 approval . That' s, the burden is theirs . Carrying that burden
24 involves the presentation of evidence. What is and is not
25 evidence are legal issues . There is evidence that needs to be
7
940261
1 presented here that I will need to be involved in presenting;
2 and therefore, in order to create the record necessary to
3 obtain your approval on this application, it is necessary that
4 I be here to represent my clients . And I cannot see if the
5 objectors are not required to come back at another time what
6 overweighing interest justifies not granting a continuance for
7 the applicants so that they can carry their burden of proof
8 and make their record. It' s critical .
9 CHAIRMAN WEBSTER: I think in my mind, at least my
10 feeling is on this that in all fairness, even though these
11 people would have to come back, I think in all fairness that
12 the board should make the decision as to whether we delay this
13 in order for you to be in attendance and that ' s their decision
14 here today to a later date or we continue without legal,
15 without your comments today. So that's my feeling about it,
16 Bruce.
17 MR. BARKER: I think that's correct.
18 CHAIRMAN WEBSTER: So I think that has to be
19 determined here by the board. Unfortunately we don't have the
20 fifth member of our board here today, but certainly we have a
21 voting quota.
22 MS. MIKA: Staff would like to give some information
23 to you that may help you in making a determinist. This case
24 was continued at the Planning Commission level and it also,
25 this case has been continued to this day. So this case was
8
940261
1 advertised to go on, was it the fourteenth? The 23rd and
2 there was some discrepancies about posting the signs and so
3 this actually is the second time this case, if you continue
4 it, the case will be posted three times then. I wanted you to
5 know that.
6 COMMISSIONER WEBSTER: Thank you.
7 DONNA LARSON: Could I address the board? Donna
8 Larson.
9 CHAIRMAN WEBSTER: I think we've closed testimony
10 and I don't know whether we need discussion on this issue or
11 not.
12 DONNA LARSON: It's regarding the continuance.
13 MR. BARKER: We actually really have not called up
14 the case as I haven't called the docket number yet and so.
15 CHAIRMAN WEBSTER: Right, so we are open to the
16 public comment.
17 DONNA LARSON: This is just regarding the
18 continuance.
19 MR. BARKER: Yeah. I think we were just getting
20 some information just as to timing and it probably would be
21 wise for me to go ahead and call the case up.
22 CHAIRMAN WEBSTER: I didn't want to get caught, go
23 ahead.
24 DONNA LARSON: I 'm Donna Larson. This is strictly
25 in regard to the continuance and I do apologize to the board.
9
940261
1 We were fully prepared to be here on the 23rd. That was not
2 a problem. However, they decided to, I had asked when I
3 turned in the little slip you know you have to sign it saying
4 we want to come before the county commissioners . I turned
5 that in and asked if they could give me an approximate time as
6 to when this would be. I said it doesn' t really matter to us,
7 just give me an approximate idea so I can tell John and
8 etcetera. They gave me the approximate date of March 9th and
9 then decided there was an opening on the calendar or whatever
10 and scheduled it for the 23rd, but we did not get notice of
11 that. I got notice on Thursday which was the day before I was
12 to pick up signs and have them posted by Sunday in order to
13 meet the ten days and my schedule just simply did not
14 accommodate this 24-hour notice. Ms. Mika did call me on, and
15 help me I think it was Wednesday, but
16 MS . MIKA: Wednesday and said you needed to have the
17 signs posted by Friday.
18 DONNA LARSON: And she said you 've got to come get
19 the signs, and I 'm going, for what? Because I had no notice.
20 We got ours in the mail the next day and our mail comes about
21 5 :00 . We 're the last one on the route out in the country.
22 And she did warn me on Wednesday, but I said I do not know of
23 any possible way I can get there or that Ivar could. We were
24 involved in some things and we had to pick it up before they
25 closed so that we could have it posted by Sunday and I said
10
940261
1 I ' ll do it first thing Monday morning, but it would be too
2 late. So I apologize, but I don' t feel we were given adequate
3 notice in order to post the signs . And I really feel a little
4 bit annoyed that I am being blamed for postponing this when I
5 wasn' t, I don' t feel, given adequate notice to get the signs
6 up.
7 CHAIRMAN WEBSTER: Certainly not my feeling, but I
8 can' t speak for the rest of the board, certainly.
9 COMMISSIONER HALL: Well, I guess I would offer a
10 suggestion that we go ahead and allow for public testimony of
11 those that are here and wish to make statements and if they
12 then also would want to come back during the hearing at a
13 later date that they would also have that option and that I
14 think it would be probably be more than fair and we need to be
15 more than fair in all cases to the applicants to allow for
16 their complete testimony and I think it would be wrong of us
17 to not allow them to put forth what information that they
18 wanted to in this case. So that' s my suggestion.
19 CHAIRMAN WEBSTER: Suggestion, not a motion?
20 COMMISSIONER HALL: Well, if you want to call up
21 CHAIRMAN WEBSTER: I think it would be better to
22 have a motion, if possible.
23 MR. BARKER: Yes . Let me call up the case and then
24 you can continue on. This is Docket Number 94-21 . The
25 applicant is Ivar and Donna Larson, 925 North County Road,
11
940261
1 Route One, Berthoud, Colorado 80513 . The request is a minor
2 subdivision final plat, Whitetail #1 . Legal description is
3 Part of the East 1/2 of Section 14, Township 4 North, Range 68
4 West of the 6th P.M. , Weld County, Colorado. Location is
5 approximately 2-1/2 miles southwest of the Town of Johnstown.
6 Notice of today' s hearing was dated February 14, 1994, and I
7 believe it was published appropriately.
8 CHAIRMAN WEBSTER: Thank you.
9 COMMISSIONER HALL: Mr. Chairman I would move, based
10 on the request made by the applicant, that we continue with
11 public testimony in this event to allow public testimony at a
12 later date and continue this matter after public testimony to
13 the next earliest date which we could. hear this . And I 'm not
14 sure what date that would be.
15 CHAIRMAN WEBSTER: It's been moved by Dale to hear
16 the public testimony at this time and also to allow at a later
17 date,
18 COMMISSIONER HALL: March 16th
19 CHAIRMAN WEBSTER: March 16th, to continue this
20 hearing at that time for further testimony.
21 COMMISSIONER HARBERT: I ' ll second it.
22 CHAIRMAN WEBSTER: Seconded by Connie. Any
23 discussion on the motion? All in favor of the motion say aye.
24 COMMISSIONERS: Aye.
25 CHAIRMAN WEBSTER: Opposed?
12
940261
1 (NO ANSWER)
2 CHAIRMAN WEBSTER: So moved.
3 MR. CHILSON: I appreciate your consideration very
4 much, I do. Thank you.
5 MR. BARKER: It probably would be wise to go ahead
6 and at least have the record made as to what the department ' s
7 position is and then we can go ahead and just open it up for
8 public testimony.
9 CHAIRMAN WEBSTER: That' s what I was going to do.
10 Monica, could you comment on the position of the Planning
11 Department?
12 MS. MIKA: Prior to making my staff recommendation,
13 I did pass out additional correspondence that we have received
14 since the Planning Commission hearing. In addition to that
15 you have copies of a petition which has been signed by about
16 approximately 30 people. Today I received petitions with
17 about 20 more signatures on them that I did not make copies
18 because I got them this morning, but Bruce has a copy of the
19 original petitions . In addition, the hand-outs that I gave
20 you during the recorded exemption, if you turn to, I ' ll show
21 you which ones . They're the urban growth, they have urban
22 growth boundary stuff on the front of them. On the back,
23 those are the sections that we' ll be dealing with in the minor
24 subdivision. Section 4 . Just so you have that info handy.
25 Okay.
13
940261
1 COMMISSIONER HARBERT: Monica, just a moment . Did
2 we vote on the motion that we had?
3 CHAIRMAN BAXTER: To continue? Yes .
4 COMMISSIONER HARBERT: Okay. Alright, that' s all I
5 wanted to ask. I don' t recall saying "aye" .
6 CHAIRMAN WEBSTER: You did, I heard you.
7 COMMISSIONER HARBERT: Okay.
8 CHAIRMAN WEBSTER: Continue.
9 MS. MIKA: Thank you. The Department of Planning
10 Services staff doesn't normally read everything from the
11 recommendation, but I think since we have so many people here
12 I will try to give you most of it. This recommendation is
13 coming to you from the Planning Commission and it is a
14 unanimous recommendation of denial . The Department of
15 Planning Services concurs . It's the opinion that this
16 proposed subdivision final plat is not consistent with the
17 Weld County Comprehensive Plan and is not compatible with
18 surrounding farm, residence and agriculture use. This
19 property is zoned agriculture. The agricultural district was
20 established to enhance production. Allowing residential units
21 in an agriculture-zoned district in no way enhances, nor does
22 it encourage agriculture production. The Comprehensive Plan
23 attempts to, in several cases, minimize incompatibilities that
24 exist between rural and urban uses . The Comprehensive Plan
25 also emphatically discourages the agricultural conversion of
14
940261
1 land - in this particular case, prime agricultural land. The
2 policies of the Comprehensive Plan as they are today, are
3 designed to promote agriculture use. The potential for
4 increase interference with neighboring rural uses is probable.
5 In addition, you have copious amounts of letters and petitions
6 of surrounding property owners that are emphatically opposed
7 to this request. There are four soil types located on this
8 farm ground. These soils are listed in your packet. I 'm not
9 going to reiterate, but once again, these soils are classified
10 as highly productive soils of farmland of state-wide
11 importance. So the potential is there to turn this ground
12 into a viable farm. The general use of the surrounding area
13 is agriculture. Located down the street are some, down the
14 road, are some well-known centennial farms there. There are
15 some very large ranches surrounding the property. The scale
16 and density of this proposal far exceeds the current nature of
17 the area. Based on census data we can generate or we can
18 extrapolate and say that about 34 more people will be invited
19 into this area to live and to reside. Not only will this
20 increase density, noise levels and traffic, but the overall
21 appearance of this area will change from that of a rural area
22 to a more urban use.
23 The applicants are proposing to subdivide this 190
24 acres of farmland into twelve acreages with a minimum lot size
25 of 15 acres . However, in a previous application, the
15
940261
1 applicants say that the difficulties that they themselves are
2 having in farming a 25-acre parcel . So that leads me to the
3 question if we know that they're having problems on an
4 additional parcel of ground, farming it because the parcels
5 are too small, what are the residents of Whitetail going to
6 do? This proposal does not encourage preservation of
7 agriculture uses . Staff has received verbal opposition to
8 this request and at the time this was written you had 11
9 letters in opposition. The surrounding property owners are so
10 concerned about preserving the rural lifestyle, the impact
11 this development will have on their farming practices . This
12 recommendation of denial is based upon the comprehensive plan,
13 submitted information, concerns that referral agencies had,
14 and also on a contradiction with the Comprehensive Plan.
15 CHAIRMAN WEBSTER: Could I start out by asking you
16 a couple of questions to your statement, Monica? You state
17 here, "The Comprehensive Plan attempts to minimize the
18 incompatibilities that occur between agriculture and urban
19 uses and this request will not only increase the incompatible
20 uses, but it will make current farming practices in the area
21 more difficult. " Could you explain that?
22 MS. MIKA: That' s correct. We notice that in areas
23 that are highly farming areas, when we invite more people in,
24 we're inviting more children, more vandalism, more people
25 trespassing on other people 's crops, those types of
16
940261
1 incompatibilities exist . We have some differences in water
2 usage. That ' s a great incompatibility. Those, if you address
3 the letters, the letters state specifically what they think
4 that the incompatible uses will be and how they will deal with
5 more noise, more traffic, aerial spraying, those types of
6 issues .
7 CHAIRMAN WEBSTER: Another question on
8 recommendations . It says the current general use of
9 surrounding areas is agricultural . The centennial farm is
10 located close to this site. What does that have to do with
11 it?
12 MS. MIKA: I just put that in that the fact that the
13 area has been farmed for hundreds of years . And
14 CHAIRMAN WEBSTER: Who's the centennial farm?
15 MS. MIKA: The centennial farm is, and I know that
16 Mr. Larson has some comments on this as well, the centennial
17 farm is a farm in the area that has been in one family's name
18 for a hundred years . It's been farmed by family members . And
19 I just, when I was doing my field check, went out and saw that
20 the area is rural. It's been rural for years . And I just put
21 that in kind of as a locator to let you know where it was and
22 kind of the sense of the ambiance of the area.
23 CHAIRMAN WEBSTER: Any other questions of staff?
24
25 MS. MIKA: Also, some of the Planning Commission
17
940261
1 members, when they went out and did their field checks, they
2 also noted too that the centennial farm was there and that was
3 important to a lot of the planning commissioners .
4 COMMISSIONER HARBERT: Monica, I have a question.
5 I know that there's been several people working on this in the
6 Planning staff which hasn't made real good continuity, but
7 this that you just read which is dated December 21, 1993, is
8 that what you were reading from?
9 MS . MIKA: That 's correct. And
10 COMMISSIONER HARBERT: I just want to know, was that
11 a part of the packet that the Larsons received before they
12 went to the Planning Commission also?
13 MS. MIKA: This was the staff recommendation. I
14 know Mrs . Larson's shaking her head. This was the staff
15 recommendation to the Planning Commission. I do think that
16 they got that that day.
17 MS. LARSON: Yeah.
18 MS. MIKA: They got it the day of the hearing.
19 COMMISSIONER HARBERT: In your communications with
20 the Larsons previous to putting this down on paper, did you
21 give them any indication at all that the staff was going to
22 have a hard time accepting this?
23 MS . MIKA: I did talk to them several times before
24 hand and one of the things when the staff makes
25 recommendation, we just don't dream this up. One of the
18
940261
1 things
2 COMMISSIONER HARBERT: Oh, I realize that.
3 MS . MIKA: Well, I mean, we talk to referral
4 agencies and so before we make a recommendation, we need to
5 make sure that we have all the data in and I was receiving
6 data up to the day of the hearing. And also another thing
7 too, is we had some concerns about the soils, percolation
8 tests, and those types of questions in which I could not tell
9 them if what the staff recommendation was until I had that
10 data. And that data was not available too many days before
11 the recommendation. And the Health Department will concur
12 with that too. But they did know the day of .
13 CHAIRMAN WEBSTER: Any further questions of staff?
14 Mr. Larson, or representative?
15 COMMISSIONER HALL: Mr. Chairman, I guess I would,
16 I 've been biting my tongue here just slightly because I moved
17 prior to this bit of testimony that the public would be
18 allowed testimony and that the hearing would actually be
19 continued until March 16th and it was voted on unanimously by
20 this board; and I think that we have gone perhaps a little
21 beyond that with staff allowing for their information as far
22 as part of their input, I think the input was intended for the
23 benefit of the public involved and I think that' s what we're
24 looking for. The attorney for the applicants have asked for
25 a continuance so that their attorney could be here and I think
19
940261
1 it' s improper to continue on with the applicant' s testimony or
2 any presentation that they might have and that we should go
3 immediately and ask for public testimony so that we can
4 continue this hearing.
5 CHAIRMAN WEBSTER: That was my understanding too,
6 except counsel
7 COMMISSIONER HARBERT: I apologize. I asked a
8 question I shouldn' t have.
9 CHAIRMAN WEBSTER: I think that threw me off for
10 number one, and number two I think counsel said that it would
11 proper for the staff to make their comments .
12 MR. BARKER: At least get the issue going.
13 CHAIRMAN WEBSTER: Right. Okay.
14 COMMISSIONER BAXTER: Mr. Chairman, I feel they have
15 some points well taken, but it seems like we needed something
16 on the record for the people to respond to, is the reason I
17 didn't object.
18 CHAIRMAN WEBSTER: What 's your feeling Bruce?
19 MR. BARKER: I would suggest you go ahead and open
20 it up to public comment.
21 CHAIRMAN WEBSTER: At this time I will open it up to
22 public comment. Anybody in the audience here today who wishes
23 to speak for or against this application, and I do appreciate
24 your patience today.
25 MR. BARKER: One other point is that if there is any
20
940261
1 individual who speaks today and then would like to come back
2 the next time and hear what the applicants have to say and to
3 speak again, I assume that what you would do is allow that
4 person to speak again, is that correct?
5 COMMISSIONER HALL: That was what my intent, motion
6 was .
7 CHAIRMAN WEBSTER: That was what was in the motion.
8 COMMISSIONER HALL: They would also have the option
9 to come back and testify.
10 CHAIRMAN WEBSTER: I will repeat that. That anybody
11 that wants to return to the March 16th hearing for
12 continuation of these, certainly encouraged and welcome to do
13 so. Anybody that wants to speak for it at this time, we would
14 entertain their testimony.
15 DAVID OSTERMILLER: Alright, I 'm David Ostermiller,
16 4705 Weld County Road 36 , and I 'm against it. And I 've lived
17 out there 25 years on, right across the road from the farm
18 there and I took some pictures and I want to explain what they
19 are and I got some concerns about road traffic with farming
20 equipment and stuff. The road on there ain't very wide and
21 I 'm afraid that, you know, people won't understand agriculture
22 use of the roads . I 'm a young farmer and I 'm trying to farm,
23 me and my brother, and we're trying to rent land now and we
24 can' t find none to farm because there's no land and it's all
25 getting sold up to houses and stuff. And you know, I want to
21
940261
1 farm the rest of my life, but I don ' t know if I can, you know.
2 But I just took some pictures to show you what the situation
3 is over there.
4 COMMISSIONER HARBERT: Do you want to explain those
5 to us?
6 CHAIRMAN WEBSTER: Any further questions?
7 COMMISSIONER HARBERT: If you take the mike and
8 MS. MIKA: Do you want me to hold them?
9 CHAIRMAN WEBSTER: Which way to you live, north or
10 east?
11 DAVID OSTERMILLER: Just north. This is the little
12 labor house that I live in, up from my mom and dad. And this
13 is the centennial farm right here. Here' s a better picture of
14 it. And I have some other pitures right here. There's a nice
15 irrigation ditch for irrigating this (inaudible) . And there' s
16 a wheat field here and there' s the hay that come off this
17 place here. And there's straw, wheat straw right there. And
18 here' s the corn stubble.
19 CHAIRMAN WEBSTER: You might try to get to the mike.
20 COMMISSIONER HARBERT: I think he's getting, he' s
21 just picking them up.
22 CHAIRMAN WEBSTER: Is that picking it up Shelley?
23 Is it? Good, thank you.
24 MR. BARKER: Speak as loud as you can.
25 DAVID OSTERMILLER: Okay. And here' s the cornfield
22
940261
1 that he raises corn right here. It was a pretty good crop.
2 You know we watch because we live right across the road here.
3 COMMISSIONER HALL: I wanted to make sure you 're
4 twisting that so that the applicant can see it too.
5 DAVID OSTERMILLER: And then there' s some straw that
6 he hauled over there for a wind break off the wheat stubble
7 for the cows, to protect them from the wind. And then they
8 put that new sprinkler on the bottom. I don't know where it
9 could be your own farm ground you know. And then you talked
10 about noxious weeds , we have it all over too, it' s just a part
11 of farming, expecting weeds . I don't know what the difference
12 is between that farm and the farm right across below. Here I
13 got some of the farm below their farm. And this is the
14 horizon here. And I don't see what 's, you know, the soil is
15 all the same really.
16 COMMISSIONER BAXTER: These pictures were of the
17 whole area or the upper area or
18 DAVID OSTERMILLER: Well, I couldn't get off the
19 bottom area, but I took them, this is the bottom area, and
20 right there sits his sprinkler. This starts from about here
21 and runs over to here. But as you can see, it' s all corn.
22 And then there' s some hay down there. The reason why, you
23 know, it's so full of weeds, they haven't farmed in three or
24 four years because it' s been in bankrupt. Well, longer than
25 that. It 's been in a bankruptcy deal . And it' s just got run
23
940261
1 down a little bit. So you look at the irrigation systems .
2 Another concern that I have is who ' s going to irrigate all
3 these little lots, and divide the water up?
4 COMMISSIONER HALL: You want to step back up to the
5 microphone, probably and talk about your concerns? We 'd like
6 to hear them if you have them.
7 DAVID OSTERMILLER: Because if you don' t take care
8 of irrigation, you know, we're going to have problems now, we
9 already have problems with people not paying their bills for
10 us maintaining the ditches and, you know and that 's, you know,
11 that ' s just, you know I like living out in the country and I
12 don't want to have to wake up and look over and see a million
13 houses over there because what are you going to do when all
14 the farm ground is covered up? I don't know. That's all I
15 can say. Thank you.
16 CHAIRMAN WEBSTER: Pardon me, just a moment. Any
17 further questions? Thank you.
18 COMMISSIONER HARBERT: Do you farm that with your,
19 you say your brother and your parents, or just you and your
20 brother, or?
21 DAVID OSTERMILLER: Well, my dad' s over there. I
22 farm with him. And my brother. We're trying to both to start
23 out farming.
24 COMMISSIONER HARBERT: And how many acres do you
25 take care of?
24
940261
1 DAVID OSTERMILLER: Well, 850 .
2 COMMISSIONER HARBERT: Just a small farm, huh.
3 CHAIRMAN WEBSTER: Could you show, the maps up there
4 isn't the best one we've had up to date, but where the break
5 is over, it' s got to, you've got to have to have a 100 foot
6 fall which you
7 DAVID OSTERMILLER: Well you're talking about that
8 break.
9 CHAIRMAN WEBSTER: It breaks over down to the river
10 bottom is what I 'm trying to get at. The upper fields are
11 good fields, right, in your estimation? But when it breaks
12 over the hill, where does it break in that map right there?
13 MR. BARKER: David, actually you can point to this
14 map, then the applicant can see.
15 CHAIRMAN WEBSTER: Yeah, there, he' s got a map up.
16 That' s what I wanted.
17 DAVID OSTERMILLER: This area here? Okay, this is
18 the road, but where' s the boundaries?
19 MS . MIKA: Here' s Weld County Road 46, is right here
20 and this is how the land mass looks right now. The top here,
21 and this is the bottom. The house is right there, yeah.
22 DAVID OSTERMILLER: And right down below here
23 somewhere there should be a pivot for a sprinkler. And those
24 hills aren't that steep. We have hills like that on some of
25 our farms . When we row crop, and irrigate, we put a sprinkler
25
940261
1 on it. You know there' s some wet areas over there, but we
2 have a ( inaudible)
3 CHAIRMAN WEBSTER: Made pretty good corn last year?
4 DAVID OSTERMILLER: What 's that?
5 CHAIRMAN WEBSTER: Made pretty good corn crops this
6 last year?
7 DAVID OSTERMILLER: Yeah, as far as a whole, but
8 CHAIRMAN WEBSTER: Any questions? Thank you David.
9 MS . MIKA: Here' s the topography map again. Here' s
10 4900, here' s 4850 so you can see. Show you all the, this is
11 only half of the site.
12 CHAIRMAN WEBSTER: You might leave that up, Monica,
13 if anybody else wants to speak. Anybody else would like to
14 speak for and against the application?
15 GENE OSTERMILLER: I 'm Gene Ostermiller and I live
16 at 4705 Weld County Road 46 , which is directly across the road
17 from the Larson's farm, which is the centennial farm. I have
18 lived there for about 33 years . So I do know this farm that
19 they're talking about pretty well . I am opposed to this . We
20 have been farming out there for 33 years . This is prime
21 agricultural land and we believe it should remain so.
22 Urbanites do not realize the problems that will arise from
23 having major agricultural producers as neighbors . Some of the
24 concerns that we have, is number one, is irrigation: water
25 ditch maintenance and division of water shares . I think my
26
940261
1 son just talked about this . We have already had quite a few
2 problems out there and all I can foresee is a lot more if we
3 get six or twelve more divisions out there. We have also had
4 trouble with weed burning and it ' s essential that we have weed
5 burning out in that country to keep our irrigation canals open
6 and stuff . Urban people are going to, they're going to be
7 concerned about burning their ditch banks and stuff, which we
8 already had problems with. We had a waste ditch which has
9 been closed by urban people. That's just down the road from
10 where I live. Another big, real big concern of my is
11 agricultural spraying. This subdivision is going to be
12 surrounded by farms, big farms . And aerial spraying is going
13 to be a big concern out there because it 's essential that we
14 do spraying or we ain't going to raise nothing. And all these
15 people are going to have, we're going to have big trouble with
16 them. We have 200 head of cattle on feed right on the north
17 side of this subdivision. Odors and dust could be a big
18 problem. We've already got dust from the dirt road which is
19 a problem for the people residing on Road 46 . Additional
20 traffic would increase dust population, or pollution, and the
21 need is for more road maintenance. This road has heavy
22 agricultural traffic . Practically every neighbor around
23 there, when we move, we got to, I-25 on the West of us . We
24 have to use Road 46 to get back and forth to our different
25 farms so there is a lot of agricultural moving tractors,
27
940261
1 trucks, a lot of beet trucks in the fall down that road, which
2 is a very, very narrow road to begin with. And so I don' t see
3 how that can work. Another thing we have is domestic water.
4 Pressure, we have a problem with that. We have been on
5 restrictions in the summer because there is not adequate
6 pipelines . The water pressure is low. If we add 12 more
7 houses, which they' re talking about, we won' t have water
8 pressure at all and so that' s got to be resolved. Another
9 thing is these septic tanks or septic systems, that' s going to
10 pollute the underground water and we also, I was just at two
11 meetings this last month, these little subdivisions and
12 they're bigger polluters of underground waters right now than
13 the farms are because we're only putting on fertilizers which
14 our farms, which our crops will use up, where they're going
15 out there and putting on a lot of fertilizer on their grass
16 and stuff and lawns and stuff, and it's not being used up.
17 And so I didn't know that until here about 2 weeks ago that
18 they' re considering them bigger polluters than agricultural
19 land. Phone service is another big thing out there. We're
20 still on party lines. You get urban people out there, they
21 don' t understand party lines . We're going to have a big
22 concern with that. And so the Larsons have put in a pivot
23 sprinkler down there on their farm where they have this hilly
24 ground which isn't all that bad, but it' s, there' s a couple of
25 spots that are, but they've corrected their problems for
28
940261
1 farming that ground. They've put the pivot sprinkler in and
2 they can grow any row crop they want down there now. I 've
3 lived next to that farm for so many years, the guys that have
4 farmed it prior, outside of one guy that he went bankrupt,
5 they used to farm that place and raise good crops on it.
6 Henry Schmidt was one of my neighbors out there. He farmed
7 that for many, many years and his dad owned it before he did
8 and so I don't see how we in Weld County can take farms like
9 this and put it into housing. I mean, Weld County is number
10 two in the nation as far as production, and in the top 10
11 counties in the United States, and I don' t, I just absolutely
12 can't see anybody taking a farm like that and putting it into
13 houses . You seen the pictures that we have. It isn't that
14 bad a farm. The Larsons have talked about the highly erodible
15 ground. Well, we all, I live on a centennial farm, it's all
16 highly erodible. In fact, we got more highly erodible ground
17 than they do, if you look at the soils map. We have more
18 highly erodible ground than they do, and we raise good crops .
19 There' s no, so, and we just hope that you take consideration
20 and try to do the right thing. We have a lot of wildlife out
21 there which we have whitetail deer, we have fox, we have some
22 red-tail hawks that keep coming back every year and nesting
23 out there. We ' ll drive all this away when we start putting in
24 houses out there. And I just can' t see taking this kind of
25 ground and putting it into housing. It' s just going to cause
29
940261
1 big, big trouble out there.
2 CHAIRMAN WEBSTER: What 's your water out there?
3 GENE OSTERMILLER: What ' s our water? Irrigation
4 water? It 's Home Supply. Home Supply Ditch Company.
5 MR. WEBSTER: That' s a lateral? Comes out of
6 GENE OSTERMILLER: Well, that' s the main canal.
7 Then we also have a lateral where three farms come together,
8 which is Larsons and myself and another farm down the road.
9 We have one ditch that comes, that delivers all the water to
10 these farms . And this is where I am concerned about having to
11 divide water with all these other people. When they're going
12 to want water, it' s going to be on a weekend because that' s
13 the only time they're going to have to do it. And this makes
14 me more work and
15 COMMISSIONER HARBERT: Does your ditch company run
16 water on the weekend?
17 GENE OSTERMILLER: Yes . Our ditch is run seven days
18 a week. Right now, the maintenance on the ditch, hasn' t been
19 taken care of last year. And I have taken care of this ditch
20 for 30 years myself, and I don't know, I just won't do it
21 anymore because I don't get paid for what I do, so.
22 CHAIRMAN WEBSTER: Any questions for Mr.
23 Ostermiller?
24 COMMISSIONER BAXTER: You've partially answered my
25 question, but having lived there as long as you have, I 'm sure
30
940261
1 you' re the logical one to ask this question. The lower part
2 of that, the part that was , has not been farmed for some years
3 and has noxious weeds and all that, I was curious to whether,
4 how long it had been like that and why it was like that.
5 GENE OSTERMILLER: Okay. That farm has changed
6 hands in the last 30 years probably five times that I know of .
7 A man by the name of Henry Schmidt farmed it for several
8 years . His dad owned it before that. Then he farmed it.
9 Then after he retired, why the farm was sold and it has been
10 farmed up until about the last, oh probably three years prior
11 to Larsons owning it. It was in a bankruptcy deal . And
12 nobody wanted to farm it because we, no one knew what was
13 going to happen to it. We didn't want to go over there and do
14 a bunch of work. I had a chance to farm it. We turned it
15 down because of not knowing what the next year was going to
16 bring, whether we was going to have it, we didn't want to go
17 over there and do a bunch of work. So it was neglected, is
18 what it was . But Mr. Larson, he' s cleaned it up. It looks
19 real nice now, and he' s put in the pivot sprinkler. I see no
20 reason for this farm to ever go into houses . I mean it' s
21 still zoned agricultural . I don' t see how it, he, I think
22 he' s going to make a cow/calf operation out of it, or a cattle
23 operation anyway, which is going to really work fine down
24 where he' s got that pivot sprinkler. I think that' s the way
25 to go on this farm. The land up on the top up there where it
31
940261
1 can be irrigated easily and stuff, farm it. That' s, I don ' t
2 know, I don ' t see
3 COMMISSIONER BAXTER: Part of the question, too, was
4 the, were the noxious weeds allowed to pretty well take over?
5 And is that just from neglect? It takes some time for that to
6 happen.
7 GENE OSTERMILLER: Well, by being neglected for
8 three, four years, whatever it was, we did have a weed problem
9 out there. But a weed problem is, we all have that now. I
10 mean all our farms, we 've got Canadian thistle, we've got vine
11 weed on them, and I think if you divide this place up into
12 smaller lots, every one 's going to have a fence line around
13 their place, they're going to fence it. Underneath all these
14 fences you're going to have all these weeds start coming, or
15 thistle mainly, Canadian thistle, so we are going to have a
16 bigger weed problem than we do now. Because these people are
17 all going to have to work. We know that. They're going to
18 have to have another job. The only time they're going to have
19 time to do anything on these farms is in the evenings and on
20 weekends and they just won't get it done. I don't, so we' re
21 just going to, and I can show you, not out there, but other
22 developments that have gone in where there is all kinds of
23 weed concerns . We have a lot of problem with it. And the
24 farm, it does have some Canadian thistle on it and it was
25 because it was neglected on the present farm.
32
940261
1 CHAIRMAN WEBSTER: Is 46 a school bus route? 46 is
2 a school bus road, isn ' t it?
3 GENE OSTERMILLER: Right.
4 CHAIRMAN WEBSTER: Any further questions of Mr.
5 Ostermiller? Thank you very much.
6 GENE OSTERMILLER. Thank you.
7 CHAIRMAN WEBSTER: Anybody else in the audience?
8 EVELYN OSTERMILLER: My name is Evelyn Ostermiller
9 and I live at 4705 Weld County Road 46 and we 've lived there
10 33 years . And I 'm strongly opposed to a subdivision across
11 the road from me. We agree that it is a beautiful place to
12 live and that we understand why other people would like to
13 move out there. But we also believe we need to protect our
14 valuable ag-producing land for future food production, not
15 only now but in the future. Our population is growing and our
16 prime cropland is decreasing. Our young ag-producers are
17 being pushed out of business and they are having trouble
18 finding enough farm ground in this area to support a family
19 farm. We hope that you will stop the growth of these sporadic
20 subdivisions and keep Weld County as a number one agriculture
21 producing county. A lot of these small lots are causing
22 problems . They are hard to farm. We have a division across
23 the road that they've divided in 80 acres . The people can't
24 find anybody to farm that land for them because it is such a
25 small lot, it' s hard to turn around with your machinery, the
33
940261
1 rows are short, it ' s just a problem so nobody wants to farm
2 it. Those people do not have equipment to farm it, so what
3 will happen to that land? It ' ll be an eyesore before long.
4 I give credit to Mr. Larson for attempting to clean up the
5 farm. The biggest part of it, where the weeds, the obnoxious
6 weeds were, were right across the road from us in the good
7 field because nobody took care of it. Down below on the other
8 land, I personally haven't been down there to see what it is
9 like there, but most of the thistle is up there close to the
10 road. As far as being a school bus route, it is, but if
11 you' ll check with the school bus drivers, that is hard for two
12 vehicles to pass each other on that road especially when it' s
13 wet, the shoulder is soft and you know, you just have a hard
14 time getting by each other. Excuse me, I 'm nervous . I know
15 that a lot of these people, when you move down the road with
16 the farm equipment or a truckload of corn, they don' t, they
17 ' expect you to move over. Well, you can't move over on a
18 shoulder with a truckload of corn - you' ll dump it. And I
19 know that obscene gestures have been made at me many times for
20 being in the way. And I would like very much for you to take
21 my considerations into your consideration. Thank you.
22 CHAIRMAN WEBSTER: Thank you. One moment, please.
23 Any questions of Mrs . Ostermiller? Thank you very much.
24 Anybody else this afternoon?
25 MR. SOLETA: I 'm Mike Soleta. That' s S-O-L-E-T-A.
34
940261
1 And I live in that little triangle right there and I guess I
2 would be amiss to stand here and reiterate on the agricultural
3 land that has been disseminated and turned into anything else
4 but agricultural land. One only needs to read a newspaper in
5 the last six months, especially to know that Weld County has,
6 is and is being dissected and agricultural land is fading away
7 fast. And I guess it really gets me that people would come
8 along and, for monetary gain, I don't see what else is
9 involved here, and dissect this land. I think we all, I think
10 the Larsons have won a major victory here today. They've
11 already got their land doubled. They already have two lots
12 instead of one. There' s already a substantial gain there, no
13 matter what happens from this day on. We already are saddled
14 with two more places out there. In the last two years we've
15 added about 4 places on that mile stretch already. It's
16 beginning to look like a subdivision already. So I 'm totally
17 against any more division. I 'm already kind of appalled at
18 how easy it is to come in here and have that 190 acres divided
19 up as easy as it was . It seemed to me like there should have
20 been maybe some legal action here before that was even
21 determined. But being as it may, I can't believe that we
22 would go ahead and chop this land up into twelve more
23 sections . It just amazes me. Thank you.
24 CHAIRMAN WEBSTER: Any questions? Thank you, oh,
25 excuse me.
35
940261
1 COMMISSIONER HARBERT: How long have you lived
2 there, Mr. Soleta?
3 MR. SOLETA: Since 1990 . Almost five years . It
4 will be five years this fall .
5 CHAIRMAN WEBSTER: Was the house new in 1990 when
6 you first located there?
7 MR. SOLETA: That is the original farmhouse of that
8 whole section of land.
9 CHAIRMAN WEBSTER: Oh, I see. It' s a homestead for
10 that piece.
11 MR. SOLETA: Right.
12 CHAIRMAN WEBSTER: Further questions? Thank you.
13 Anybody else wish to speak? Maybe I 'm proper in this in
14 recessing until March 16th. Do we have any further questions?
15 MS. MIKA: I 'm not sure if a Mark Zahn from Gerrity
16 Oil and Gas Corporation was here this morning and he wanted to
17 speak. He had some concerns about this subdivision. I will
18 get in contact with him and see if he can come to the next
19 meeting. But I just wanted to note, let you know that he was
20 here and had some concerns . He left these concerns with me,
21 but if he doesn't come to the next hearing, I can address them
22 at that time.
23 MR. BARKER: I think the proper thing to do at this
24 point in time would be to recess it until the date which you
25 have chosen.
36
940261
1 CHAIRMAN WEBSTER: Yes . The chosen date which is
2 March 16th. And so at this time I will recess the hearings
3 until that time. Thank you.
4 MR. BARKER: Just for the record, the continuance,
5 and we might mention that to everyone who is here, applies to
6 both. We had the Whitetail #1 and Whitetail #2 developments .
7 They are actually two separate items, but they involve the
8 same subject and so the continuance, I assume, applies to both
9 of those.
10 MEETING RECESSED
11
•
37
940261
1 PROCEEDINGS
2 (March 16 , 1994 - All Commissioners Present)
3
4 CHAIRMAN WEBSTER: I will convene the hearing.
5 March 14th. What did I say? March 16, 1994 . Roll call
6 please, Shelly.
7 SHELLY MILLER: George Baxter.
8 COMMISSIONER BAXTER: Here
9 SHELLY MILLER: Connie Harbert.
10 COMMISSIONER HARBERT: Here.
11 SHELLY MILLER: Barbara Kirkmeyer.
12 COMMISSIONER KIRKMEYER: Here.
13 SHELLY MILLER: Dale Hall.
14 COMMISSIONER HALL: Here.
15 SHELLY MILLER: Bill Webster.
16 CHAIRMAN WEBSTER: Here. Minor Subdivision Final
17 Plat. Mr. Morrison.
18 MR. MORRISON: Mr. Chairman, are you taking evidence
19 on both plats 94-23 and 94-21?
20 CHAIRMAN WEBSTER: We have been taking them on both
21 at the same time.
22 MR. MORRISON: This is a continuation of the hearing
23 previously noticed. The applicants are Ivar and Donna Larson.
24 Minor Subdivision Final Plat for Whitetail #1 and Whitetail
25 #2 . They are located on Part of the East } of Section 14 ,
38
940261
1 Township 4 North, Range 68 West of the 6th P.M. , Weld County,
2 Colorado. Notice of the earlier hearing was dated February
3 14, 1994 .
4 CHAIRMAN WEBSTER: Planning.
5 MS . MIKA: I 'm Monica Mika, Weld County Planning.
6 I 'd just like to maybe recap where we are and talk about the
7 figures . The two applications, S-350 and S-349 combined
8 together represent 190 acres of agricultural land, more or
9 less . The applicants are proposing to split these two parcels
10 into twelve home sites . In particular, in Case S-349, the
11 average lot size of these parcels will be 4 . 5 acres, with six
12 lots . In S-350 the average lot size will be 6 .4 acres with
13 six lots . Since the last
14 COMMISSIONER BAXTER: 190 acres?
15 MS . MIKA: Sorry about that. Let me double check
16 the lot sizes . I pulled Whitetail instead of Mountain View.
17 Thank you. Okay. Total acreage in Whitetail #2 , total
18 acreage is 86 . 92 . Average lot size 14 .5 acres . And the other
19 one is 16 .4 acres. And I may have said 6 acres . Okay. Since
20 the last hearing, we have received two additional
21 correspondence. One letter that we have received was from the
22 applicants and he asked that we give some type of
23 clarification concerning the centennial farm. Do you guys
24 want another copy of this? For a point of clarification, I 'd
25 like to enter into the Colorado Historical Society letter
39
940261
1 dated March 14 , 1994 , as written.
2 COMMISSIONER HARBERT: I guess I would have a
3 question about the letter from the Colorado Historical Society
4 and that is do, they have no record that the Ostermiller' s
5 were related to the Clarks or Randolphs, is that correct?
6 MS . MIKA: I can't answer that. I 'm not sure. The
7 question that came to us from the applicant is, should we have
8 referred to the adjacent property as a "centennial farm" .
9 COMMISSIONER HARBERT: And it is a centennial farm?
10 MS . MIKA: Well, based on, I mean you can interpret
11 the way the letter is written. Based on what the letter says
12 in the last paragraph, I think he tried to surmise the letter.
13 COMMISSIONER HARBERT: That it will, it is on their
14 list as a centennial farm and it will always be there.
15 MS . MIKA: That's correct. And I can read the
16 letter for the public record. This is from
17 COMMISSIONER HARBERT: I think if it' s just entered
18 as an exhibit that' s fine.
19 CHAIRMAN WEBSTER: Further questions for Monica?
20 The Larsons and/or their representatives are in attendance.
21 Could you give, please, your name and address for the record?
22 You can speak.
23 MR. CHILSON: I don' t know what you prefer. Do you
24 have a preference as to whether I remain at the table or use
25 the podium? Does it matter to you?
40
940261
1 CHAIRMAN WEBSTER: If you feel more comfortable
2 there, I would suggest you could stay right there.
3 MR. CHILSON: With your permission, I may have to
4 move to deal with the overhead projector in part of my
5 presentation, but
6 COMMISSIONER KIRKMEYER: Just as long as you stay in
7 front of a microphone, it doesn' t really matter.
8 MR. CHILSON: Right. Okay. My name is John Chilson.
9 I 'm an attorney in Loveland, Colorado. I represent the
10 applicants, Donna and Ivar Larson in both Whitetail #1 and
11 Whitetail #2, and as I understand it we are going to proceed
12 on both of these minor subdivision requests simultaneously
13 together. So that in my remarks I will be talking about both
14 subdivisions collectively. If, for any reason any
15 commissioner would want me to specifically speak to one or the
16 other if you have questions, please let me know. Otherwise,
17 I will be talking about both of them together.
18 To give you an overview of this application and the
19 process, the minor subdivision regulations under which the
20 Larsons are proceeding are regulations that were in effect for
21 a relatively short period of time. It's my understanding and
22 perhaps for the record I could ask staff to clarify this .
23 It' s my understanding that the minor subdivision regulations
24 that we're proceeding under were amended subsequent to the
25 Larsons filing their application. Is that correct?
41
910261
1 MS . MIKA: I believe that ' s correct, but you ' ll need
2 to ask Mr. Morrison for the exact date because I was not an
3 employee at that time.
4 MR. CHILSON: Mr. Morrison, could you provide us
5 with the approximate date which minor subdivision regulations
6 were amended?
7 MR. MORRISON: I believe the actual change came to
8 the Zoning Ordinance and affected what zones minor
9 subdivisions can be filed in. I can check, I don' t have that
10 immediately available for you but I ' ll make that available to
11 the record prior to the end of testimony.
12 MR. CHILSON: It's my understanding that the
13 amendment, in effect the amendment was to require a re-zoning
14 if you had agriculturally zoned property, it's now required
15 that that property be rezoned to E (Estates) District before
16 a minor subdivision proposal could be processed on it. Is
17 that correct?
18 MR. MORRISON: That is correct.
19 MR. CHILSON: Alright. And so the Larsons are
20 proceeding under the previous regulations that did not require
21 a re-zoning to take place on agricultural land, that basically
22 agricultural land under your Zoning and Subdivision
23 Regulations was eligible for minor subdivision application
24 under the regulations the Larsons are proceeding on. Without
25 any rezoning proceedings at all. Am I correct in that, Mr.
42
940261
1 Morrison?
2 MR. MORRISON: That ' s correct.
3 MR. CHILSON: I think this set of regulations was in
4 effect for only a relatively short period of time. And I
5 think there were very few minor subdivision requests that were
6 made prior to the time that the regulations were amended to
7 require a rezoning. Perhaps Monica can indicate, it is my
8 understanding there were like five or six total minor
9 subdivision requests before the rezoning became a part of the
10 process, is that
11 COMMISSIONER HALL: I guess I 'd like to know what
12 relevance this really has to the process we're going through
13 right now. You don't have to go through
14 COMMISSIONER KIRKMEYER: I think we all understood
15 when we made the amendment what was going on at the time. I,
16 too, ask what the relevance is .
17 MR. CHILSON: That' s fine. I simply wanted to paint
18 the picture that you're dealing with an unusual and unique
19 situation that is not applicable across the board to a great
20 number of requests . And I think that's an important factor in
21 this proceeding.
22 CHAIRMAN WEBSTER: I think your point' s been made.
23 MR. CHILSON: That' s all I wanted to establish. I
24 would, if I may be permitted to do so, to establish certain
25 other things for the record that I think are pertinent with
43
940261
1 regard to the minor subdivision regulations themselves and if
2 I may, Monica would you feel more comfortable with me here or
3 over at the podium talking to you? Is this too close to you
4 sharing a microphone?
5 MS. MIKA: This is fine.
6 MR. CHILSON: Fine. I don't want to make anybody
7 uncomfortable. Can you advise us of the staff ' s position on
8 the following questions? Have the applicants submitted all of
9 the documentation required by the minor subdivision
10 regulations for these proposals?
11 MS . MIKA: Up to this point that's correct; however,
12 prior to recording the plat there are some additional
13 information that the Board of County Commissioners will
14 require.
15 MR. CHILSON: And those will be, those are in a
16 document entitled "Conditions of Approval Ivar and Donna
17 Larson S-349 and S-350 Whitetail #1 and Whitetail #2"?
18 MS. MIKA: That' s correct.
19 MR. CHILSON: Have the Larsons responded to all of
20 the staff requests for information relating to these two minor
21 subdivision proposals? Are there any outstanding requests for
22 information that have been submitted?
23 MS. MIKA: No, and the case wouldn't have been
24 proceeded to this far if we didn't have adequate information.
25 MR. CHILSON: Okay. Have the Larsons followed all
44
940261
1 of the procedures required by the minor subdivision
2 regulations to up to the date of this hearing?
3 COMMISSIONER HALL: Mr. Chilson, I guess I 'm really
4 having a problem with your line of testimony, I guess is what
5 it is . This is a hearing in front of the Board of Weld County
6 Commissioners . This is not a question and answer period for
7 you and staff . If you wanted to do that, you should have done
8 that prior to coming here and talking to us .
9 COMMISSIONER HARBERT: Well I guess I would say you
10 wouldn' t be here if all those things hadn' t taken place.
11 MR. CHILSON: Members of the board, different boards
12 do things differently.
13 COMMISSIONER HALL: Wait a minute. If you have an
14 opinion on whether or not you have submitted all the
15 information that you feel like you need to have submitted,
16 then you have the very apt ability to say that you have
17 submitted everything that you believe is submitted is
18 necessary. You don' t need to back and forth question our
19 staff whether or not you've done what you' re supposed to do.
20 If they have a concern that you haven't done something, then
21 they have the opportunity to later on tell you that this has
22 not been proceeded. But I think your testimony here is in
23 front of the county commissioners, not in front of staff.
24 MR. CHILSON: Commissioner Hall, different boards do
25 things differently; however, across the board in subdivision
45
940261
1 and zoning hearings the burden of proof is on the applicant to
2 establish all of the factors required by the subdivision
3 regulations . My questions to staff relate to requirements of
4 the subdivision regulations . The subdivision regulations
5 specifically require all information requested by staff be
6 submitted. All documents requested by staff be submitted.
7 These are all in your regulations . We have the burden of
8 proof in this hearing on those regulations . Now I 'm not a
9 witness in this case. Staff is a witness in this case. As to
10 facts that only they can testify to, as to their opinion of
11 the status of the file. That ' s the only evidence available to
12 us .
13 COMMISSIONER KIRKMEYER: Excuse me. However, if the
14 status of the file was incomplete, it wouldn' t be coming in
15 front of the county commissioners at this point.
16 COMMISSIONER HARBERT: Right, that' s
17 COMMISSIONER KIRKMEYER: And just to reiterate what
18 Commissioner Hall said, we 're here, it ' s to be in front of the
19 Board of County Commissioners and he should be addressing his
20 comments to the Board of County Commissioners .
21 MR. CHILSON: I disagree with you Commissioner
22 Kirkmeyer, in that the law is very clear
23 COMMISSIONER KIRKMEYER: You may do so, but I guess
24 I would ask the Chairman then to redirect the applicant to
25 start talking to the board.
46
910261
1 MR. MORRISON: John, let me
2 CHAIRMAN WEBSTER: That ' s my next step counsel .
3 MR. MORRISON: I guess if there are certain
4 preliminary facts you need to establish for your case for the
5 record, maybe you ought to present those and let' s see if
6 there ' s any basis for a disagreement on those. Typically
7 these hearings are not done, as you 're aware, they don't have
8 to be done in a formal cross-examination mode and they are not
9 done here in that mode. And I think we might facilitate it if
10 you've got preliminaries that probably aren't issues, we go
11 through those, identify any that might be an issue and work on
12 those.
13 MR. CHILSON: Let me approach it this way if I may.
14 I will make statements of fact upon the condition that if
15 staff contests the accuracy of any of those statements, the
16 burden will be on staff to state that for the record. May we
17 proceed on that basis, Mr. Morrison?
18 MR. MORRISON: It' s satisfactory to me. I think
19 that' s really more typically how our hearings proceed.
20 CHAIRMAN WEBSTER: Is it satisfactory to the board?
21 MR. CHILSON: Is it satisfactory to
22 CHAIRMAN WEBSTER: It' s satisfactory to the
23 Chairman.
24 MR. CHILSON: Thank you. I will state the following
25 facts are true with regard to these applications . The minor
47
94O261
1 subdivision regulations in effect and applicable to the
2 Larsons ' application do not contain any zoning requirements or
3 considerations . The property in question is zoned
4 A (Agricultural) District. The zoning regulations permit
5 single family residences as a use by right within the zone.
6 The issue of lot size and legal lot in the zoning regulations
7 direct that that decision be made in the agricultural district
8 through the subdivision regulations if the minimum lot size or
9 bulk area as set forth in the zoning regulations is to be
10 reduced in size. That the Larsons have complied, in staff ' s
11 opinion, with all of the minor subdivision regulations with
12 the exception of Regulation 4 .5 . 16 . 1 which requires compliance
13 with the Weld County Comprehensive Plan. That, excuse me, I
14 thought I 'd just go ahead and go through
15 MS . MIKA: Can I . You've received a copy, if you
16 don't have your subdivision ordinances, I think that's the
17 handout that you received last week. He 's referring to page
18 23 of the Subdivision Ordinance, just so that you guys are on
19 the same page. The minor sub regulations fall under that
20 section. I 'm sorry, I just wanted to remind them that they
21 gave them that.
22 MR. CHILSON: That' s fine. Any time you want to
23 step in, do so.
24 CHAIRMAN WEBSTER: 4 .5. 7
25 MS. MIKA: 16 . 1
48
940261
1 MR. CHILSON: That is the regulation that requires
2 minor subdivisions to be consistent with the Weld County
3 Comprehensive Plan. My statement of fact is that other than,
4 excuse me.
5 MS. MIKA: Excuse me a second. You are going to be
6 dealing with 4 . 5 . 9 . 1 because at the time this case was applied
7 for we were dealing with the December 15, 1992 , Subdivision
8 Ordinance. So it' s the exact, it' s the numbering has been
9 changed so it' s 4 .5 . 9 . 1 . Do you see? Okay, just so you
10 CHAIRMAN WEBSTER: Compliance with the Weld County
11 Comprehensive Plan.
12 MS. MIKA: That' s correct.
13 MR. CHILSON: Excuse me, my reference is to the 1993
14 regulations and so I would ask that my prior statements be
15 corrected that we reflect that we're dealing with the 1992 but
16 I dealt with the current one since I assumed that was what you
17 all were working with and were familiar with.
18 Other than the issue of the Comprehensive Plan, all
19 of the minor subdivision regulations have been met by the
20 Larsons ' application and the data and information submitted in
21 support thereof. .The minor subdivision regulations do not
22 define the term "urban growth area" . That definition is found
23 in the Weld County policy. And that policy as contained on
24 page 30 of the Comprehensive Plan, implements an urban growth
25 area adjacent to any existing municipality, whether it is
49
940261
1 inside or outside of Weld County, that extends three miles
2 from that municipality and that the Larsons ' property for
3 Whitetail #1 and #2 does, under that policy, lie within an
4 urban growth area of Johnstown. That the Planning Commission
5 in this case based its recommendation of denial on the Weld
6 County Comprehensive Plan. That the primary issue then before
7 this hearing with all of the subdivision regulations having
8 been met except compliance with the Comprehensive Plan is the
9 application of the Comprehensive Plan to the Larsons ' minor
10 subdivision proposal . Further, that no referral agency to
11 whom the application was referred, objected to the development
12 or recommended a denial of the same. That the file and all
13 information submitted by the Larsons, the planning staff level
14 is now complete. That completes my initial presentation. I
15 would ask if I have stated anything from staff 's perspective
16 that is not accurate.
17 CHAIRMAN WEBSTER: Any questions, comments at this
18 time? Any further comments from the applicants?
19 MR. MORRISON: Mr. Chairman, if I might. Mr.
20 Chilson's comments regarding the bulk regulations are not
21 incorrect; although it should be clarified there are certain
22 bulk requirements found in the Zoning Ordinance in addition to
23 the subdivision regulations, particularly when it comes to lot
24 sizes, minimum lot sizes for a residence in the agricultural
25 zone. I 'm not aware that that' s an applicable provision in
50
940261
1 this case, but just in the general statement that subdivision
2 regulations contain the only bulk requirements, I wouldn' t
3 agree with that general statement.
4 MS . MIKA: Staff also has some
5 MR. CHILSON: Excuse me, may I respond to Mr.
6 Morrison before, so I don' t forget what he said.
7 MS . MIKA: Sure.
8 COMMISSIONER HARBERT: Mr. Chilson why don't you
9 just take this microphone here and then you don' t have to
10 trade.
11 MR. CHILSON: Be happy to. If that' s what I said,
12 that wasn't my intendment. What I specifically want to point
13 out. The agricultural zone contains a bulk area requirement
14 of 80 acres for lot size. However, under the Zoning
15 Ordinance, the issue has to reducing that requirement and the
16 method of reducing that requirement is sent over, so to speak
17 to, the subdivision regulations . The zoning regulations, in
18 their definition of legal lot, which is the central definition
19 that we're dealing with here, does provide that in the
20 agricultural zone a legal lot is that which meets the minimum
21 area for similar requirements in the zoning or which is
22 created in conformance with the Weld County Subdivision
23 Regulations . So you have two methods of creating legal lots;
24 either meeting the minimum bulk area requirements of the zone,
25 or in an agricultural zone only meeting the requirements of
51
94O261
1 the subdivision regulations . That ' s the point I was making,
2 Mr. Morrison. I 'm sorry to interrupt.
3 MS . MIKA: Staff just has a couple comments, and I 'm
4 not sure if on page 27, Section 4 . 5 . 9 .5 which talks about
5 soils classification, staff does not believe that that
6 criteria has been satisfied. Mr. Chilson said that he felt
7 like all of them but the Comprehensive Plan, that is another
8 area that staff has a concern about. We also did receive a
9 letter from Gerrity Oil and Gas and it was a referral. They
10 didn' t necessarily say, they just had some concerns . So
11 whether or not one can assume that that 's a letter for
12 something, I 'm not sure we can make that point. Additionally,
13 I do believe that the zone district A has relevance because
14 Section 31 . 2 . 1 says that we can have one dwelling per lot and
15 we're dwelling with two dwellings, we' re dealing with two lots
16 right now and we're talking about making it into twelve lots .
17 And so I think that there' s some difference as to whether or
18 not the agricultural lots are there existing or if we're going
19 to create the lots.
20 MR. CHILSON: Excuse me, Monica. Let me see what
21 you were reading from on the soils. What section?
22 MR. MORRISON: Could you reference for the record
23 those, is it under the new regulations, new numbering, it
24 would be 4 .5 . 9 .5 that deals with soil conditions . Is that
25 right, Monica?
52
940261
1 MS. MIKA: I 'm sorry, what?
2 MR. MORRISON: Is it the new regulations 4 . 5 . 9 . 5
3 that deal with soils?
4 MS. MIKA: That' s the old regulations .
5 MR. MORRISON: No, that 's the new number.
6 MS . MIKA: Okay, the new numbers, okay. I just have
7 a copy in front of me.
8 MR. MORRISON: Okay, do you have the old number?
9 MS . MIKA: Sometimes they're the same. Just a
10 second, let me check. ( Inaudible) Okay, it's the same
11 numbering. Also, there' s a letter in your packets someplace
12 that was distributed from staff. Mr. Larson wanted some more
13 clarification and staff did point out that the two areas of
14 concern were Section 4 .5 . 1 which is compliance with the Weld
15 County Comprehensive Plan and Section 4 . 5.9 which deals with
16 the soils . The recommendation that was entered into the
17 public hearing last week, those are the areas that does talk
18 about the Planning Commission's recommendation.
19 MR. CHILSON: We're ready to continue, Mr. Chairman,
20 whenever you are.
21 CHAIRMAN WEBSTER: Please.
22 MR. CHILSON: Thank you. Mrs . Larson will give you
23 a presentation on the compliance with the Comprehensive Plan
24 issue, then Mr. Larson will follow with a presentation on the
25 soils . And he will also provide you with information on the
53
940261
1 water supply. There' s an interior system in this subdivision
2 for providing water for fire protection which Mr. Larson
3 installed and engineered and he will present evidence on that
4 for you.
5 Mrs . Larson, would you please ask Mr. Morrison to
6 mark as an exhibit any document that you place on the screen
7 so that we have a record on this .
8 MRS . LARSON: Okay, I believe they got these last
9 week and Exhibit "A" is the top map with the overlay. And
10 Exhibit "B" is underneath "A" and it' s an 11-year
11 photographical history of the ASCS aerial photos . Exhibit "C"
12 which follows that is a letter from Continental Guarantee
13 which we would be using as a guarantee for all internal
14 subdivision improvements . Then I have one additional exhibit,
15 Exhibit "D" which is an overlay of the soils in question.
16 MR. MORRISON: Are you saying those were earlier
17 marked?
18 MS . MIKA: Those were entered last week, Lee. Those
19 were entered last week. They may be, however, they may have
20 gotten involved with RE case.
21 MR. MORRISON: That' s correct. They were entered in
22 the RE case. I 'm going to re-mark them and they' ll be in
23 sequence "V" , "W" , and "X" .
24 MRS. LARSON: Okay.
25 MR. MORRISON: Yeah. We already have an Exhibit "A"
54
940261
1 is the problem. So it will be "V" , "W" , and "X" in that
2 sequence.
3 MRS . LARSON: That' s "V" , "W" , "X" and "Y" . And I
4 apologize. ( Inaudible)
5 MR. CHILSON: Is that "V" as in "Victor"?
6 MR. MORRISON: "V" as in "Victor" .
7 CHAIRMAN WEBSTER: You may proceed.
8 MRS. LARSON: OK. Is that OK to start then?
9 MR. CHILSON: Would you refer to what exhibit letter
10 you are going to be discussing that' s on the screen so that we
11 have
12 MRS . LARSON: I have placed Exhibit "V" I guess,
13 right. This is "V"
14 MR. MORRISON: That's the overall picture, is it
15 this? Yes.
16 MRS. LARSON: What you have is a photograph
17 underneath this overlay and I just put the overlay up here
18 because it will be easier for me to point to it and you to
19 find it on your photograph with the overlay. They' re all part
20 of Exhibit "V" . Okay. And you may have to help me because
21 I 've got this written to other letters.
22 I 'd like to start with just a slight background of
23 my husband and I . We both believe in agriculture. My husband
24 grew up on a family farm in northeastern Colorado. He became
25 a professional engineer and worked in the computer, earth
55
940261
1 moving and construction industry, but for the past 22 years we
2 have owned and managed farm ground. And since 1988 our
3 primary source of income is from agriculture. Our 21-year old
4 son decided at least 10 years ago to be a farmer and he is
5 currently enrolled in the Aims Farm and Ranch Management
6 program. He will be the fourth generation of my husband ' s
7 side to own our farm ground in northeastern Colorado and the
8 fifth generation on my side to own the farm ground in Kansas .
9 We are approaching centennial farm status and we 're proud to
10 be in agriculture. These proposals, along with two others to
11 be presented in a few weeks, are the only pieces of ground
12 that we have ever proposed to divide. Believe me, if these
13 pieces of ground were economically viable as farm ground, we
14 would not be here requesting minor subdivisions . Agriculture
15 is our business, mainly irrigated farming and cattle in this
16 area, dryland and irrigated farming in two other counties in
17 northeastern Colorado and three counties in Kansas .
18 We were amused at a statement in the petition and in
19 one of your protest letters which says and I quote, "If return
20 on investment is to be the standard with which we measure
21 productive farmland, then perhaps all of Weld County should be
22 designated available for subdivisions . " I 'm simply, we are
23 amazed that the signers believe that agriculture does not
24 provide a return on investment. Whether it' s Weld or any
25 other county, I thought that was one of the main reasons we
56
910261
1 were in farming and I do believe it ' s one of the main reasons
2 agriculture is one of Weld County' s main industries . If
3 farmland is not providing a return on investment we all have
4 problems .
5 We have met the requirements of Section 4 . 5 .9 which
6 now, and I believe even by the ' 92 ordinances are now 4 .5 . 16
7 which are the reference to the requirements for the
8 Commissioners . I will address the points brought up in the
9 Planning staff ' s letter and the Planning Commission's
10 resolution of recommendation for denial dated December 21,
11 1993 , and then I will describe section by section how we meet
12 your requirements . Again, Exhibit "V" is the 1993 summer
13 aerial photo of this ground with an overlay of our proposed
14 lot divisions for the two minor subdivisions . The Planning
15 staff has stated that Whitetail Acres #1 and #2 are not
16 compatible with the surrounding area of rural residences and
17 agricultural uses . I want to emphasize that we are proposing
18 rural residences and agricultural use. We are proposing
19 twelve home sites on 190 acres and we honestly don't believe
20 that' s urbanization. Only two additional houses should be
21 visible from County Road 46 , which is along the north property
22 line. Higher density is already exists on that road, as
23 evidenced by the overlay on the photo. I have put "H' s" with
24 little circles . Those are houses. We do have, so you know,
25 for instance, this "A" here is a small little homesite, but it
57
940261
1 is an abandoned homesite. There is a water tap there,
2 however, so that ' s not an actual home at this point. We have
3 two abandoned homesites . The rest of them are actual
4 homesites with people living in them. This subdivision will
5 create a much lower density than Northmoor Estates which is
6 less than a mile away. Northmoor starts basically right in
7 this area. There will be very little change in appearance to
8 this neighborhood. Planning staff has referred in their
9 opening comments last week to incompatibility with large
10 surrounding ranches . I honestly don't know where these
11 ranches are. We 're fairly familiar with the surrounding
12 countryside and it 's basically farming and not that large of
13 farms .
14 Ms . Mika has referred to increased vandalism because
15 of twelve additional homes, and our experience has been that
16 vandalism tends to occur in remote areas and rarely from your
17 neighbors. We believe in the rural lifestyle. We believe in
18 it for those with large economically viable farms as well as
19 for those with other jobs but who wish to attain the values
20 and the sanctuary of a rural lifestyle on a smaller acreage.
21 Whitetail Acres is a natural location for rural,
22 agriculturally oriented homesites . We believe we are
23 preserving the rural atmosphere and the agricultural zone
24 through the minor subdivision process . And we have put on
25 strict enforceable, detailed covenants which will help keep
58
940261
1 this agriculturally productive . This is not, and historically
2 has not been, an economically viable farm unit . We were
3 excited when your subdivision ordinances opened the minor
4 subdivision process in the ag zone in December of ' 92 because
5 we felt this would be the highest and best use for this piece
6 of ground. After we filed you did modify your procedure. But
7 we don' t anticipate that you will have a flood of this type of
8 development because you simply have changed the procedures
9 that require other rezoning. The main reason this 190 acres
10 is not economical is because it simply is not all farmable.
11 We are not taking 191 acres of farmland out of production. We
12 are putting 140 back into agricultural use. I believe it
13 would be Exhibit "W" , is that right? On my sheet it's "B" and
14 on, it actually will be "W" . There are three pages to it.
15 You can lay those out. That's an 11-year history from the
16 ASCS aerial photos . Because this ground drops approximately
17 110 feet from County Road 46 down to the Little Thompson
18 River, you can only see the top two fields from the road.
19 Please notice that the southern 140 acres not visible from the
20 road, has not been successfully farmed since 1983 , and even in
21 1983 required an inordinate intensive effort with minimal
22 economic return. Basically that lower 140 acres has been a
23 trash dump for quite a few years . We have removed truckloads
24 of trash that have been dumped around this lower part and we
25 are intensively working to reclaim this ground from noxious
59
940261
1 weeds and bring it back into agricultural use as alfalfa and
2 grass pastures . Sharp Brothers Seed Company, who specialize
3 in native grass seed, is providing the consulting and seed to
4 re-establish this ground into native resilient pasture. The
5 poor economical return of farming everything below the top two
6 fields is demonstrated by the bankruptcies of the owners of
7 this property and the photographical history before you which
8 shows that it was ignored for ten years by capable farmers who
9 rented the farm. Travelers Insurance Company acquired it on
10 a foreclosure and they couldn' t sell it for six years . Last
11 week you heard from the Ostermillers across the road that they
12 had the chance to rent the ground but they wouldn't take it.
13 They say because of the bankruptcy, but the bankruptcies are
14 all part of the fact that it's not a real farmable piece. The
15 agricultural productivity will actually increase with these
16 minor subdivisions because the lower 140 acres will be
17 reclaimed as irrigated pasture which can better be managed by
18 small acreage owners . The only previously productive fields
19 are kept intact. You' ll notice that Lots 1 and 2 at the top
20 maintain, through the photograph you can tell the existing
21 fields that have been productive on the top, are maintained in
22 Lots 1, 2 and part, excuse me, both Lots 1 in Whitetail Acres
23 #1 and #2 . In actuality, the agricultural, well let me switch
24 horses here just a minute.
25 First of all, if you' ll look at Exhibit, and this is
60
940261
1 where I 'm lost, "D" which is "Y" , Exhibit "Y" , this is
2 confusing and that' s why I have not placed it or taped it on,
3 but you can get an overlay which I apologize, I didn' t know
4 quite else how to present it so that you can see the soil .
5 I 'm going to remove the other map for a minute. The soils
6 that have been referred to as being soils of concern are 42
7 which is Nunn-clay and 80 which is Weld loam. Forty-two, if
8 you will notice on our lot layout, which you can do with your
9 overlay, is basically preserved in the three of the largest
10 fields that we have or three of the largest lots that we
11 propose in these two minor subdivisions . The other soils are
12 not soils of primary agricultural concern, and they are not
13 productive soils . We know that, we can tell that from the
14 photos that you have from the ASCS history. Forty-two, we
15 basically have preserved. Eighty, if you will notice, is
16 almost all covered by road, by the three acres that are
17 already not part of this subdivision because there is a home
18 on them and they are not being farmed. There' s very little of
19 80 that we could actually reach, anyway, because of the layout
20 that currently exists . ASCS uses a five-year history to
21 establish program payments and when we acquired this farm
22 there was no reported history and therefore no base. Now we
23 are in the process of building base, but we will only be
24 allowed to build dryland base. It is ASCS, has forbidden the
25 development of an irrigated base at this point in time. Since
61
940261
1 1990, I believe it was, they changed their rules and you can
2 no longer, regardless of whether you irrigate or not, you
3 cannot establish an irrigated base. This makes corn, wheat
4 and other program crops non-profitable. Alfalfa hay on the
5 upper field will be the only profitable crop and it will also
6 help choke out the noxious weeds . The area you see hatched in
7 red is highly erodible soil . Highly erodible soil is common
8 in Weld County, we realize that. But highly erodible soil
9 that borders the Little Thompson River is a special concern.
10 Flood irrigating row crops on the lower fields had caused
11 severe erosion on the river banks . We tried a little flood
12 irrigation on the lower southwest field ourselves and did even
13 more damage one summer. We have since had the banks repaired
14 and we have seeded them to grass to stabilize them. We've
15 also seeded all the lower fields to grass in order to
16 stabilize the erosion. Sedimentary and chemical pollution
17 from row crops are major problems in highly erodible ground
18 and the proximity to the Little Thompson River increases those
19 concerns . The sedimentation problem is already very evident
20 in the summer time and it comes from the waste water running
21 into the river. Putting at least the lower 140 acres into
22 grass and pasture hay is the most environmentally protective
23 approach, especially for the Little Thompson River. All in
24 all, the bottom line is the agricultural productivity will not
25 change that much once this would be divided into smaller
62
940261
1 acreages . The historically productive fields will remain
2 intact, which you can see as Lots 1 and 2 , or excuse me, both
3 Lots 1 in the two subdivisions and part of Lot 2 . Now, while
4 this is not, and we do not pretend that this is economically
5 viable or expedient if agriculture is your primary source of
6 income, but they would be manageable by owners who live on
7 these parcels and have no other farming interests . If they
8 chose to rent these fields, they would basically be the same
9 fields that have historically been rented and farmed.
10 We disagree with the Planning staff ' s statement that
11 this development will make current farming practices in the
12 area far more difficult. We do not see how it could adversely
13 affect farmers in the area because of the terrain and the size
14 of the lots . Aerial spraying will continue and will be
15 minimally impacted by this minor subdivision. There will only
16 be two additional houses visible from the road, which will
17 basically be on these two lots, because from here on down is
18 where you get the majority of the slope which is about, again
19 a hundred, there' s probably 90 feet that go from the bottom of
20 those two lots down. So you've got two houses that will be
21 across from Road 46 . The others will be surrounding the
22 internal road as you can see on the plan, and thus will not be
23 close to any surrounding farms . The river itself is a natural
24 barrier, to the south you can' t, that' s going to be a natural
25 barrier in terms of spraying. Access to the main Home Supply
63
940261
1 Ditch is shared now with two other farmers who will only have
2 to deal with a representative of the homeowners association,
3 not 12 individual lot owners . All but two of the users will
4 access water through Whitetail ' s self-contained internal
5 irrigation distribution system out of Schmidt Lake. Schmidt
6 Lake, as you can see is labeled, is located right here.
7 Everything from this point down irrigates out of Schmidt Lake.
8 So the water is, it has an adjudicated water right in terms of
9 drainage, but also if you order water it comes down into
10 Schmidt Lake. They can order water whenever it ' s convenient
11 with the other farmers and then distribute it out of the lake.
12 We believe we are preserving the agricultural
13 integrity of the community. We're not turning it into an
14 urban area. In the Planning Department' s file in our
15 application submittal is a letter dated March 1, 1993, from
16 Intermill Land Surveying stating that we are within a three-
17 mile radius of the existing city limits of Johnstown. The
18 Planning staff ' s letter regarding the amended recorded
19 exemption also stated that this 190 acres is in the urban
20 growth boundary of Johnstown, which satisfies Section
21 4 .5. 16 .2 . Our application contains two letters from the
22 Little Thompson Water District. A one-year commitment dated
23 February 6 , 1993, and a one-year extension letter dated
24 November 9, 1993, for domestic water supply. It may be that
25 system upgrades will be necessary to supply adequate pressure
64
940261
1 to meet building permit requirements , and we will be working
2 with the Little Thompson Water District to do what is
3 necessary to meet those requirements . The Planning
4 Department ' s file contains a December 20 , 1993, letter from my
5 husband, Ivar Larson, a registered professional engineer,
6 describing the unique fire protection system provided by a
7 pipeline from Schmidt Lake to a central location fitted with
8 a fire hydrant water truck filling pipe. This unique fire
9 protection system has been reviewed with the Johnstown Fire
10 Protection District and will provide a water truck source for
11 area homes other than just those in Whitetail Acres . This
12 fire protection system, along with the commitment from the
13 Little Thompson Water District, satisfies Section 4 .5 . 16 . 3 .
14 In the Planning Department' s file there's a copy of a December
15 16, 1993, percolation test results and septic system
16 recommendations for Whitetail Acres prepared by CDS
17 Engineering. The site was found to be suitable for septic
18 systems that will comply with state and local laws and
19 regulations which satisfies Section 4 . 5 . 16 . 4 .
20 Now we are at the section which I believe Monica
21 said that they, Planning Staff, had some questions about,
22 which was 4 . 5 . 16 .5 . A complete geological report was
23 submitted and the Colorado Geological Survey' s April 20, 1993,
24 response stated that there was some potential for swelling
25 soils and radon accumulation. Jeffrey L. Hines, Senior
65
940261
1 Engineering Geologist, stated that both soils and radon
2 potential can be easily mitigated with standard engineering
3 design and construction practices; and therefore, the Colorado
4 Geological Survey had no objection to the approval of the
5 application. My husband, Ivar Larson, again a registered
6 professional engineer, is experienced with residential and
7 commercial construction. He is thoroughly knowledgeable of
8 foundation design and construction. He has determined that
9 Whitetail Acres contains excellent soil for building
10 construction using standard engineered footings and
11 foundations . These reports and opinions we feel satisfy
12 4 . 5 . 16 .5 .
13 Our submittal includes a street design that complies with
14 Weld County's requirements . The roads within the minor
15 subdivision will be built in accordance with Weld County' s
16 regulations . And I need help again, Mr. Morrison, exhibit,
17 it' s a letter from, that one right there. I have it labeled
18 Exhibit "C" , it' s a letter from Continental Guarantee and it
19 was on the back of the photos .
20 MR. MORRISON: Yeah, I think that would be "X" .
21 MS . LARSON: Is that "X"?
22 MR. MORRISON: Yes .
23 MS . LARSON: Alright. Exhibit "X" is a letter of
24 commitment from Continental Guarantee, a nationwide bonding
25 company for completion of the internal improvements shown on
66
94O261
1 our minor subdivision plan. This satisfies Section 4 . 5 . 16 . 6 .
2 County Road 46 is a standard unpaved Weld County road
3 designated as a school bus route that meets the functional
4 classification with constructual capacity to meet the traffic
5 requirements of this minor subdivision. This satisfies
6 4 . 5 . 16 . 7 . Our submittal includes detailed covenants which
7 obligate all owners to the maintenance of the subdivision
8 road. Mr. Lee Morrison, the Assistant County Attorney, stated
9 in a November 30, 1993 , memorandum that the covenants appear
10 to have adequate provisions to provide for assessments of the
11 maintenance of the common areas including the roads on a
12 private basis . This satisfies 4 .5 . 16 . 8 . These minor
13 subdivisions are not part of a previously approved minor
14 subdivision. This satisfies 4 .5 . 16 . 9 . The covenants
15 previously referred to do not allow on-street parking within
16 the minor subdivisions . This satisfies 4 .5 . 16 . 10 . Neither
17 Whitetail Acres #1 nor #2 create an additional access to a
18 county, state or federal highway, and this satisfies
19 4 . 5 . 16 . 11 . The street plan shown in our submittal and also on
20 Exhibit "A" in front of you demonstrates that ingress and
21 egress to all lots within the minor subdivisions are to an
22 internal road circulation system. This satisfies 4 . 5 . 16 . 12 .
23 Our submittal includes a final drainage report dated November
24 16, 1993 , prepared by CDS Engineering that describes how our
25 minor subdivision proposals provide adequate drainage and
67
940261
1 storm water management. This report satisfies 4 . 5 . 16 . 13 . As
2 you can see on Exhibit "A" , Exhibit "V" sorry, right, the
3 large overlay, the first overlay is "V" , right?
4 MR. MORRISON: Yes, "V" as in Victor.
5 MS . LARSON: As you can see on Exhibit "V" , there
6 are six lots in both Whitetail Acres #1 and #2 and each lot is
7 greater than 2 .5 acres in size. This satisfies both sections
8 4 .5 . 16 . 14 and 15 . In the Planning file are responses from the
9 Town of Johnstown, the Johnstown Fire Protection District and
10 the Weld County Sheriff indicating they find no conflicts with
11 their interests . This satisfies 4 .5 . 16 . 16 . Based on your
12 minor subdivision requirements, we have made both the time and
13 financial commitment to this project. We have spent two years
14 in clean-up and weed control, repaired Schmidt Lake and Turtle
15 Pond, we call the first lake down below Turtle Pond whose dams
16 were breached, we've put in control valves for easy water
17 management for our agricultural lots, we've built a silt pond
18 to trap sediment from the farm to the north, we've re-shaped
19 all property edges, built crossings and dams for the central
20 wetland area, installed underground electrical to our center
21 pivot, installed a center pivot sprinkler to establish
22 grasses, installed fencing which will hold both horses and
23 cattle in our agricultural lots, we 've cleaned up trash,
24 seeded grass, cleaned up the supply ditch lateral to the Main
25 Home Supply Ditch and repaired the concrete irrigation ditch
68
940261
1 along the north end of Whitetail Acres #1 . This is in
2 conjunction with the engineering, this , in conjunction with
3 the engineering and associated submittal costs have amount to
4 more than $150, 000 investment at this point. We have
5 submitted a commitment from Continental Guarantee showing that
6 we are prepared to spend another $190,000 for the internal
7 improvements required for the minor subdivision. We feel we
8 have made a monumental improvement to this property. We feel
9 the approval of these minor subdivisions will be the
10 finalization of that improvement. Surely what we have
11 accomplished so far is an indication of our intent to develop
12 a quality project.
13 I do thank you for your time, and we do appreciate
14 your consideration of our proposals . Do you have any
15 questions?
16 CHAIRMAN WEBSTER: Any questions for Mrs . Larson?
17 COMMISSIONER HALL: I guess I have two questions .
18 When dealing with Lot Numbers 1 and 2 of the, I guess it' s
19 Whitetail Acres #1, the west half, your statements were that
20 they would stay and remain agricultural use. What
21 MRS. LARSON: Actually all of the lots will remain
22 agriculturally used.
23 COMMISSIONER HALL: What will these two be used for?
24 MRS. LARSON: I would see, again, it would be the
25 individual lot owners . I would see them, leased use would be
69
940261
1 pasture. I would assume, we have them in alfalfa right now
2 and I , well I take that back. I think Lot 2 is in grass ,
3 isn' t it? You just seeded it. Yeah, and you seeded it to the
4 native grasses, yeah. And we ' re using a grass/alfalfa
5 combination because it ' ll be easier for the grasses to seed
6 themselves and then as the alfalfa dies out, the native
7 grasses are there to take over. So this one would be probably
8 more pasture. I can see these two remaining as alfalfa, which
9 would be as manageable in the two home lots as they are right
10 now because it 's the same fields .
11 COMMISSIONER HALL: As far as manageability, that' s
12 possibly true. Is there any productivity there for that 23
13 acres versus the larger acreages?
14 MRS. LARSON: The basic productivity of this farm
15 has been these two lots . That' s the basic productivity.
16 COMMISSIONER HALL: And how will they maintain the
17 productivity? Will they be able to sell crop off of that?
18 Will it be large enough to sell crop off?
19 MRS. LARSON: Yes . I mean it's the same fields that
20 are there right now. You can see on your photo that its
21 COMMISSIONER HALL: But you're suggesting that to
22 break them off. And I 'm just asking whether or not as a
23 smaller lot will that be allowed?
24 MRS. LARSON: Right. And what I guess I 'm saying is
25 we have broken them off as lots . The lot matches the field
70
940261
1 that exists, is what I 'm trying to say.
2 COMMISSIONER HALL: Then if you move to the right or
3 the east, then Whitetail Acres #2 , you have a large area of
4 your Exhibit "Y" which talks about land, I guess 42 , or
5 whatever classification 42 , soil 42 .
6 MRS . LARSON: Lot 1 . That' s soil 42 which is the
7 Nunn clay, yeah.
8 COMMISSIONER HALL: In that Lot 1, 2 , 3, 4 and 5
9 have a large amount of that soil in there.
10 MRS . LARSON: 2, 3, 4 and 5 also have soil 42 in
11 them. They also, if you' ll notice from the ASCS photos, in
12 the past have not, that' s been part of the non-farmed ground.
13 And the reason for that is even though it has a soil that's
14 considered a good soil, the slope is such that you cannot
15 reasonably use it.
16 COMMISSIONER HALL: So you're saying that those
17 lots, especially 2 , 3, 4 and 5 which will be 10 acres or less
18 will then be also productive agriculture?
19 MRS . LARSON: Right. They would be in pasture and
20 to us , we' re bringing them out of dirt and noxious weeds into
21 a durable pasture grass, a dryland pasture grass mix so that,
22 and then also, what, it' s a little hard to tell from this and
23 you can sort of tell on your photo. Out of Schmidt Lake you
24 have a ditch that' s been the ditch used for irrigating this
25 property. And the reason these lots are laid out the way
71
940261
1 they' re laid out is this ditch comes through the crown of
2 these lots and they will, they' re set with the lay of the
3 ground so that they will irrigate by hand in other words .
4 Again, by someone who lives on that lot and which is to
5 irrigate the pasture. It will be feasible to do that. That ' s
6 why they' re laid out the way they are and, again, the water
7 comes from Schmidt Lake.
8 COMMISSIONER HARBERT: I guess I have a question and that
9 is, on your red hatched map up there, you have highly erodible
10 ground and yet you 're saying and the map, the aerial
11 photograph shows that Lot 2 is pretty well productive. I mean
12 that 's the way it looks to me anyway. And yet your mark
13 MRS. LARSON: If you look in the history, it has not
14 been. The reason it 's productive at this point is we have a
15 circle sprinkler system over it, which is about the only way
16 that you can irrigate it. We plan to move that circle system
17 to, once we get grasses established, we plan to move that to
18 another farm. I mean, we cannot economically use an overhead
19 sprinkler there because the soils are not such and the
20 majority of what' s under that sprinkler system are not such
21 that you can get productive, good productivity. Yes, on
22 little pieces of it you can. But we will be moving that
23 pivot.
24 COMMISSIONER BAXTER: Just for curiosity, you say
25 you have run a circular sprinkler. You are running it over
72
940261
1 the south part only?
2 MRS. LARSON: We call it a windshield system and
3 I ' ll show you here, I think you can hear me. We can' t run it
4 through this area because there are ponds and it ' s basically
5 a slew. If you' ll look, and I think, I don' t have my photo
6 here . But it ' s Lot, just a minute. It' s right across from
7 Lot, now I forgot, 4 I think it is . You' ll see just like a
8 comma. If you' ll lift up the overlay, you' ll see a little
9 comma. Thanks . It' s at the end of Lot 4 . It' s actually on
10 Lot 2, but across from Lot 4 . And you can see just a little
11 comma. And that's the center pivot. The sprinkler itself,
12 then basically that would just about right here, it windshield
13 wipes around this area back and forth. We have to reverse it.
14 Does this make sense? From here to here and then we reverse
15 and come back because we can't do a pie-shaped wedge because
16 of the ponds and all that.
17 CHAIRMAN WEBSTER: Any further questions for Mrs .
18 Larson?
19 MR. MORRISON: Just for clarification, in the middle
20 of your testimony, you talked about homes only being visible
21 on two of the lots and you pointed at
22 MRS. LARSON: It primarily should be visible to
23 Lots, on the two Lot 1 's because at this point the slope, you
24 may be able to see, it's hard for me to say without the house
25 being there, but the slope is such as you come down right at
73
910261
1 about a level with Schmidt Lake, the slope is quite dramatic
2 then down to the river. So you probably won' t see, I know
3 you ' ll see two on Lots 1 and 1, but I doubt that you' ll see
4 many more homes below them.
5 COMMISSIONER KIRKMEYER: And then from Weld County
6 Road 46?
7 MRS. LARSON: Right.
8 COMMISSIONER KIRKMEYER: What about from Interstate
9 I-25?
10 MRS. LARSON: Again, this all nests in. It' s not
11 visible, we can' t even see our sprinkler system most of the
12 time from, coming along the frontage road. We have to
13 actually drive down in to find it.
14 COMMISSIONER HARBERT: But you said that there was
15 a drop of approximately a hundred feet, I believe.
16 MRS. LARSON: Well, and from the feet there' s about
17 110 to 120, but some of that, I mean there' s a slope from the
18 top to about this level of Schmidt Lake and then it drops the
19 last hundred feet on down. She has a topo map I think.
20 COMMISSIONER HARBERT: But in the pictures that were
21 submitted, and I don' t know can we bring those up right now?
22 The pictures that were submitted by the Ostermillers last
23 week, showed some of that slope and I didn't consider it, that
24 those were the
25 MRS . LARSON: I don't know that they showed any of
74
940261
1 the slope because they can, they' re all the top fields .
2 MR. MORRISON: Is this Exhibit "I" that you' re
3 referencing?
4 COMMISSIONER HARBERT: Right.
5 MRS. LARSON: See, here you can see, here ' s the
6 lake. You can see here' s 10 and here' s 20 feet. So basically
7 at this point, you start dropping off fairly rapidly.
8 CHAIRMAN WEBSTER: All these pictures were basically
9 taken from north to south, right, the top two fields?
10 MRS . LARSON: Right. They were taken from County
11 Road 46 . Right. Which our
12 COMMISSIONER HARBERT: Well this one isn't. This is
13 looking north from the farm south of the Larsons and it shows
14 a pivot sprinkler and it shows the slope of the ground right
15 there.
16 MRS. LARSON: And I haven't seen those photos so I
17 can't really tell you.
18 MR. MORRISON: Is this the second set?
19 MS . MIKA: Mr. Ostermiller is here, he could
20 MRS . LARSON: I could look at that if you'd
21 MR. MORRISON: Yeah, if you' re going to ask her
22 questions about it, you might let her see them.
23 MRS. LARSON: Which one is it? Now that, I don' t
24 know what you mean (inaudible) right angle, everything shrinks
25 up
75
940261
1 MR. MORRISON: Mrs . Larson, if you want to comment
2 on those you should do that from the mike.
3 MRS. LARSON: Again, I feel that' s somewhat
4 deceiving. I think the fact that it drops 110 feet is a fact
5 and the photo is obviously a wide-angle photo which tends to
6 exaggerate with and not to limit the height. Can I straighten
7 this out?
8 MS. MIKA: Just take off the top one just so they
9 know that these maps are only half of the subdivision. If you
10 want to take them off.
11 MRS. LARSON: Does that help? Okay. It basically
12 goes down there. So I 'm saying from here you 've got 10, 20,
13 so right about through this level you've got a 20-foot drop
14 and then you have the rest of the 100, 90 to 100 feet below
15 that level.
16 CHAIRMAN WEBSTER: Any further questions of Mrs .
17 Larson?
18 COMMISSIONER BAXTER: I think we asked this question
19 last week, but what was produced on the lower part, just
20 grass?
21 MRS. LARSON: Actually, if you look at those photos
22 that I gave you, the ASCS history, when we got it, I can tell
23 you from the photos there is not a lot going on there, but I
24 can tell you that when we bought it in ' 92 it was 100%
25 bindweed, Canadian thistle, a lot of bull thistle which is
76
940261
1 easier to control, but in terms of noxious weeds the Canadian
2 thistle and the bindweed. About whatever you see that' s green
3 there is not what you harvest.
4 COMMISSIONER BAXTER: I guess my question was if you
5 had harvested anything off of that ground?
6 MRS . LARSON: No, no, no. Not until, again, we put
7 the circle on in May of ' 93, this summer and we used corn on
8 parts of it. It was marginally productive but we did it a lot
9 just because it was our one chance to use the chemicals that
10 we needed in order to gain weed control . We could not go
11 immediately to grasses and alfalfa. It was just major
12 infestation.
13 CHAIRMAN WEBSTER: Your pictures show some haystacks
14 there, though, so you must have baled some hay.
15 MRS. LARSON: This year.
16 CHAIRMAN WEBSTER: This year.
17 MRS. LARSON: ' 93, yeah. But we had the circle on
18 and, yeah
19 CHAIRMAN WEBSTER: This past year.
20 MRS . LARSON: Yeah. And we developed hay, yeah
21 CHAIRMAN WEBSTER: And you put atrizene on the corn,
22 I suppose.
23 MR. LARSON: This is Ivar Larson. I reside at 925
24 North Countyline Road. We didn't use atrizene because we
25 wanted the flexibility to plant other crops such as alfalfa,
77
940261
1 where you would have a waiting period. But we did use
2 chemicals and then we sprayed the corn with 2-4-D and Banville
3 surface sprayed and we used other chemicals, herbicides and
4 grass killers prior to planting as a pre-emergent. The corn
5 yield on the property was 130 bushel on all the acres of corn
6 that were planted. The field that we tried the flood
7 irrigation on with gated pipe was down in the southwest and
8 that ' s where we completely washed out the banks and really
9 stopped the irrigation at that point. So flood irrigation is
10 really virtually impossible.
11 MRS. LARSON: Unless it' s in grasses, yeah.
12 MR. LARSON: The whole west part of the farm was
13 really in weeds and we just mowed the weeds and tried to take
14 what we could off of there to keep everything from producing
15 more seed and now that has been planted to grasses as Donna
16 mentioned.
17 CHAIRMAN WEBSTER: Thank you. I think I 've got to
18 interrupt here for a minute to confer with the board because
19 we've had a request to have a short lunch break this noon.
20 And we also have an interview starting at 1 : 30 this afternoon
21 with some people and I 'm willing to hear what the board wishes
22 to do as far as breaking for the lunch hour. We've had a
23 request from one individual who would like to speak prior to
24 1 : 00 because he is apparently an attorney and is due in Court
25 at 1 : 00 . So I 'd try to like to accommodate him but what would
78
940261
1 be your, could we break at 12 : 00 and possibly come back and be
2 in session at 12 : 45?
3 COMMISSIONER HARBERT: That sounds good to me.
4 COMMISSIONER KIRKMEYER: I 'd like to ask, I ' ll let
5 Bill ask first.
6 COMMISSIONER HALL: I 'd like to ask the Larsons how
7 much time they time anticipate their proposal to be continuing
8 here.
9 MR. CHILSON: We ' re just about done. We have a
10 gentleman from Gerrity Oil Company who is here. One of the
11 conditions staff is requesting came out of a letter from
12 Gerrity who has the mineral lease on the property, about
13 reserving drilling sites . The Larsons have worked out a
14 workable relationship with Gerrity and we'd simply like to
15 have this gentleman from Gerrity testify to that. I have two
16 other questions and that's it.
17 CHAIRMAN WEBSTER: Okay. Well I think we' ll try to
18 do that. I 'm a little in a problem because of the lunch hour
19 I have a guest coming to this luncheon which I should be
20 there, otherwise the person' s going to be launched out there
21 on his own. But, so if you would continue then Mr. and we' ll
22 try to keep moving as quickly as possible and see how we get
23 along.
24 MR. LARSON: Yes this is Ivar Larson again. I WOULD
25 like to call before the board Mr. Zahn, senior land man for
79
940261
1 Gerrity. And we, Donna and I , own the minerals on this
2 property subject to a lease and he can address basically what
3 their needs are.
4 MR. ZAHN: Again, my name' s Mark Zahn. I 'm a senior
5 land man with Gerrity out of Denver. Currently we have a
6 producing gas well in the northeast quarter of the northeast
7 quarter of this particular section. It's a little bit outside
8 of
9 UNKNOWN: ( Inaudible)
10 MR. ZAHN: The, yeah, okay, because I wasn't sure on
11 the bearings, okay. So our concern is this . Under state and
12 oil gas conservation commission regulations we are entitled
13 to, we've got, that is the only drilled site out there, but we
14 are entitled to have drill sites in each, in the center of
15 each 40-acre tract. I know the planning group, I believe had,
16 and I think Monica might be able to verify this, had put the
17 recommendation to the commission out there that no development
18 zones be included within the plan. That would accommodate our
19 need for drill site acreage in the center of each 40-acre
20 tract. And that is really the essence of our concern here.
21 We hope that our ability to develop our mineral interest is
22 taken into account here so that if, in effect our rights
23 aren't closed out at some time in the near future by the
24 development scheme. So that's the essence of why I 'm here.
25 CHAIRMAN WEBSTER: Any further questions?
80
940261
1 COMMISSIONER HARBERT: Yes . How many more drilled
2 places could you have on that outlined area there?
3 MR. ZAHN: Yes , ma ' am. We could have, within the
4 outlined area, as many as five. I believe, I 'm not sure I 'm
5 reading the scale of this correctly, and so we are entitled to
6 one in each 40-acre tract and
7 COMMISSIONER HARBERT: Well that' s 190 acres there
8 I believe.
9 MR. ZAHN: Yeah. So, okay there ' s one currently
10 here, one in this part of Lot 1 and without knowing the scale,
11 I don't know the exact location of the center of each 40
12 that's laid out on there.
13 UNKNOWN: ( Inaudible)
14 MR. ZAHN: So that's, okay. Well, let's see, if
15 that's a whole section, there' s a quarter section, so an
16 additional one here, two more here and possibly two more yet
17 down here. At least five. But at any rate, in the center of
18 each 40 . Now as far as any firm drilling plans, I don't have
19 any to give you at this point, but those, we do have the
20 rights to those minerals in that tract and are interested in
21 developing that at some point in the near future.
22 CHAIRMAN WEBSTER: Thank you. Any further
23 questions?
24 MR. LARSON: This is Ivar Larson again and when we
25 laid out these home sites, we looked and reviewed our lease
81
94,0261
1 and also what the impact would be on those locations . And
2 from the existing site if you go directly west, it does not
3 interfere with the irrigation system. Our lease says that
4 they cannot interfere with our irrigation systems . And so
5 that particular site would be okay. The sites down below on
6 the lower part of the site, depending on when the sprinkler
7 system is removed and what our negotiations are with Gerrity,
8 that would be subject to debate. The corners, we certainly
9 would not have a problem drilling down in the corners, and as
10 you drop down the 115 feet, the southerly lots are the largest
11 lots because you get down into the flood plain. And so there
12 would not be any homes down in that area along the Little
13 Thompson River. But I 'm sure that we can work on these
14 satisfactorily and come up with satisfactory solutions . We
15 want to work with Gerrity. We've owned the minerals. We own
16 the minerals and we plan to coordinate that so that it' s not
17 an impact on the property owners there and the home sites
18 would be conducive to this compatibility. Thank you.
19 MR. ZAHN: I appreciate that, Mr. Larson. We've
20 worked with developers in other growing areas and again, my
21 main concern is that we be enabled in the future to have
22 reasonable access and enough ground which, you know, we tend
23 to look at and the 4 acre range per drill site to accomplish
24 our end to the enjoyment of the mineral estate. And that' s
25 basically what we are looking at. I guess as this develops to
82
940261
1 a later stage, I 'm sure we ' ll be having, assuming the permits
2 go through and so forth, we' ll be having more conversations on
3 this .
4 MR. LARSON: And I totally concur with that.
5 CHAIRMAN WEBSTER: Thank you.
6 MR. ZAHN: Thank you very much.
7 MR. CHILSON: Just to hustle things along, this is
8 John Chilson again. Two other points . Mr. Larson, you ' re at
9 a microphone. Will you tell the commissioners what the PSI is
10 on your fire flow system on the site from Schmidt Lake.
11 MR. LARSON: We have in the, at the center pivot
12 riser, the lake and the elevations generate a static water
13 pressure of 15 pounds per square inch before we activate the
14 booster pump. The booster pump which will supply the fire
15 trucks would be activated with the underground electrical that
16 we've already installed and it boosts the pressure up to 40
17 pounds per square inch. And that line has a capacity of 700
18 gallons a minute, which is what Johnstown was very excited
19 about when I talked to their fire chief . And we do have a
20 unique system where they can come in and fill their fire truck
21 with a cul-de-sac turn around and they are right in the heart
22 of our subdivision. In fact, Johnstown has no fire protection
23 in this area and it would service all the other homes that you
24 see on this exhibit. Thank you.
25 MR. CHILSON: Are there any hazardous, you've had
83
940261
1 the soils explored on the entire property. Are there any
2 hazardous soil conditions on the property?
3 MR. LARSON: No.
4 MR. CHILSON: Are there any hazardous geological
5 conditions on the property?
6 MR. LARSON: No. We 've done the preliminary testing
7 for soils and we do have load constraints on the foundation.
8 We have to have a 500 pound per square foot minimum loading on
9 the foundations and a 1,500 pound per square foot maximum
10 loading on the foundations . These are standard excellent
11 soils for that. We've also done the percolation rates and
12 there are no problems with that whatsoever. In fact, this
13 whole area between the Big Thompson River and the Little
14 Thompson River is basically the same soils . The entire
15 western part of Johnstown is built on the same soils . We have
16 built homes 10 and 15 years ago west of there that we 've had
17 no problems with standard footings and foundations . Thank
18 you.
19 MR. CHILSON: Alright. You have received a copy of
20 the conditions of approval from staff on Whitetail #1 and 2?
21 MS. MIKA: No they have not. You have.
22 MR. CHILSON: No, I 'm asking the Larsons, I 'm sorry.
23 MR. LARSON: Yes, I have their conditions .
24 MR. CHILSON: Alright, have you had an opportunity
25 to review those?
84
940261
1 MR. LARSON: Yes .
2 MR. CHILSON: Are any of them objectionable from
3 your point of view?
4 MR. LARSON: None.
5 MR. CHILSON: Alright. So you' re willing to accept
6 all those?
7 MR. LARSON: Yes .
8 MR. CHILSON: I have only one other statement. I
9 have to do this for the record. This is not by any means an
10 attempt on my part to challenge your authority or anything
11 like that. As a lawyer, you're just required to do some
12 things you'd rather not have to do in these hearings . I want
13 to advise you that it is our legal position that your
14 Comprehensive Plan has been met by the application. But that
15 if you determine that it has not been met, the Comprehensive
16 Plan may not be used as a regulation in subdivision
17 proceedings . It is a guideline by the Colorado Supreme Court
18 and the Colorado Court of Appeals decisions . Your
19 Comprehensive Plans are guidelines only and not regulations in
20 subdivision proceedings . With that, we're through. Do you
21 have any other questions that we can answer?
22 CHAIRMAN WEBSTER: Any questions for Mr. Chilson?
23 Hearing none, at this time I would ask for anybody to speak
24 for or against this application at this time from the
25 audience.
85
940261
1 MR. MORRISON: There was one issue, one factual
2 issue outstanding and that was the dates when the Zoning
3 Ordinance was amended and then re-amended. It appears to me
4 that it was December 29 of 1992 that Section 31 was amended
5 and then in March 8 of 1993 amended once again to delete that
6 provision which provided for minor subdivisions as creating
7 legal lots in the agricultural zone.
8 CHAIRMAN WEBSTER: Thank you. Anybody at this time
9 who wishes to speak for or against this application?
10 GENE OSTERMILLER: I 'm Gene Ostermiller. I live at
11 4705 Weld County Road 46 , directly across from their farm. I
12 have a few concerns . Number one is this dump that they claim
13 that they cleaned up down there. To my knowledge, I 've never
14 seen any trash hauled out of the place. I think it was just
15 covered up and it' s down along the Little Thompson River and
16 I think if you would go down there and dig it open that there
17 is trash down there.
18 Another thing about, last week I think I told you
19 that I was pretty concerned about having to work with this
20 subdivision. Well, I think it was last week or maybe two
21 weeks ago, Mr. Larson turned me into the EPA for having a dump
22 site on my place and so with that, why I think you can see
23 what can happen with the subdivision if it goes in.
24 Another thing, they mentioned that we didn't rent
25 the land. The reason we didn't rent that land was because it
86
940261
1 has always been after the Schmidts sold it, it went into land
2 companies . There was the Accurate Land Company bought it
3 first. Well , if you farmed something like that, you never
4 know from one year to the next whether you' re going to have it
5 so why, to clean the place up and stuff, you will not have a
6 return for probably two or three years because of all the
7 weeds and stuff that we have to do. And then it went from
8 there, it went to the Davis Land Company. From that it went
9 to Sekich, they own the John Deere dealership. And then from
10 there it went to the Bob Lewis and Bill, oh I forget what the
11 other guy' s name was anyway. And then from there it went into
12 bankruptcy and at that time is when they come over and asked
13 me to farm it, is when it was in the bankruptcy deal . And who
14 knows what' s going to happen with that. I just couldn't put
15 my time in on it, so that 's the reason we didn't rent it.
16 Another thing is, I 'm really concerned about this
17 fire protection that he said he' s got down there. Maybe it's
18 been approved by the fire board, but that pond that he ' s going
19 to take water out of, I would say the water is probably three,
20 maybe four foot deep at the most; and through the winter it is
21 fed by three field drains and when it gets real cold, a small
22 amount of water like that practically freezes solid, which
23 maybe they're not planning to have any fires in the winter
24 time, I don' t know. But I don't see how they, how this can be
25 adequate water to service a fire protection thing.
87
940261
1 And then I 'm on the soil conservation board and here
2 just prior to him submitting his subdivision plan, he turned
3 in a plan to have work done on his farm which was the
4 sprinkler that he put in, work done on the pond and stuff .
5 And I think that was under this 808 Program or Great Plains
6 Act, I guess it was . And he, we approved this plan. One
7 month later, he turns in a subdivision plan and at that time
8 when the regent or the district offices in Greeley got ahold
9 of it, they disapproved the plan. They took the approval away
10 and so then because they said if they was going to do this, if
11 he was going to subdivide it, then they would not approve that
12 plan. They would rather put the money somewhere else where
13 it' ll be used later on. And I don't know what they have about
14 this centennial farm. This just come up today. I don't know
15 what that all is, but I certainly would like to find out. And
16 Mr. Larson says that he don't have any corn yields over there,
17 or his, that his place won't produce. He said, or Mrs . Larson
18 said to me, the 130 bushel. Well the county average for this
19 year was 117 bushel, so that shows you that it' s still a
20 productive farm. And my corn across the road was probably 140
21 to . 145 bushel. So I don' t see where his yield is down so bad
22 on that farm. And the way he has it set up with this
23 sprinkler, he put his sprinkler in and it made that ground
24 down there where he' s talking, that' s not fit to farm for a
25 row crop, why that 's to me, that was ideal for this farm. And
88
940261
1 why he ' s wanting to take the sprinkler off, I don' t know how,
2 if it goes into a subdivision, how are they going to irrigate
3 it?
4 COMMISSIONER HARBERT: I guess, Mr. Ostermiller, you
5 also brought up last time that you were very concerned about
6 the pressure from the domestic water
7 GENE OSTERMILLER: Oh, yeah, I have a letter,
8 COMMISSIONER HARBERT: and I have that starred on my
9 notes from last time and Ms . Kirkmeyer wasn' t here last time.
10 Would you
11 GENE OSTERMILLER: Okay, I went to the Little
12 Thompson Water District Monday and at that time Mr. Larson had
13 been in the office one time and told them what he thought he
14 was going to do. Now this was last Monday. So I asked for a
15 letter showing that he, it hasn' t been taken care. It's a
16 three-inch line and there would not be adequate water pressure
17 for twelve more houses is what they told me. And that if he
18 is going to, if this subdivision goes through, then he has to
19 stand all the expense to put a six-inch waterline which will
20 run about a mile, and at this time it is not adequate for
21 twelve more houses . The water pressure that we have today is,
22 well, it's better than, of course this is a bad time to
23 compare it because there' s not much water used right now. But
24 in the summer time when they're under the heavy load, our
25 water pressure goes clear down, and which they' re going to put
89
940261
1 a meter on Mr. Larson' s tap and one down on one of my farms .
2 I farm about 800 acres of ground right around there and so on
3 the one farm we don' t hardly have any water pressure down
4 there right now. And we have 300 head of cattle down there.
5 And so they're going to come out and they' re going to put
6 water meters on and because they really don't know what it' s
7 going to take to bring this up to get adequate water down
8 there for the subdivision until they put on these meters and
9 test it for a while to see what the pressure really is down
10 there. That' s what they told me anyway.
11 And I guess I did get one point across last week on
12 this, I think I mentioned that there was a bill on this ditch
13 and anyway I got a registered letter from Mr. Larson yesterday
14 wanting a breakdown on this bill which if I do that, if I have
15 to, I have a set fee to burn that ditch and the way it' s been
16 divided in the past for the last 33 years that I lived there,
17 I ' ll have to charge you more money. I figure my time is worth
18 something and so if he don't want to pay it, well I ' ll just
19 have to add more to it. So I 'm just pointing out some of the
20 concerns that I have with just one party over there and what
21 it's going to be like with 12 more. I mean this is just the
22 start of it.
23 COMMISSIONER HARBERT: Are you the secretary on the
24 ditch company? Is that correct?
25 GENE OSTERMILLER: For this ditch, it ' s just three
90
940261
1 farmers ' ditch. It ' s not an incorporated ditch or anything.
2 And the way it has been done in the past, well when Mr.
3 Schmidt lived there and one other neighbor, there ' s three
4 farms that shared this ditch. We used to all go together one
5 day and we all went up. I furnished the tractor or else I
6 furnished the weed burner, one guy furnished the fuel, one guy
7 furnished the tractor. We all three went up, we done the
8 ditch and, but now, nobody wants to do it. So when I start
9 taking care of it, and last year I didn't charge anything, I
10 never even sent nobody any bills, but this year I did. Or
11 1992 I didn't. 1993 I sent out bills, well and this is the
12 response we get when he tried to, the other farm, they even
13 come up and asked me for the bill, and I gave them and they
14 paid their' s right away no problem. But Mr. Larson wants a
15 breakdown of everything and of course if he wants that I can
16 do it, but it's going to cost you more money. And so I just
17 hope that today you, as county commissioners, will consider
18 the rest of us in the decision on this, I mean I have two
19 young boys trying to start farming. The only way they're
20 going to be able to do it is with my help and if we start, if
21 we let this subdivision go in, it opens up for everybody. I
22 mean, that farm is just as good a farm as anything around
23 there and to me you 're just opening up a can of worms if you
24 let this subdivision go today. Thank you.
25 CHAIRMAN WEBSTER: Any questions for Mr.
91
940261
1 Ostermiller? Thank you .
2 GENE OSTERMILLER: I have one more question. If
3 they want those pictures explained, they are some from the
4 south end of that farm. We went down on the neighbor' s farm
5 and took them. I think they're taken toward the west from the
6 east side of the farm toward the west.
7 MR. MORRISON: That ' s Exhibit "I"?
8 COMMISSIONER HARBERT: Yes .
9 CHAIRMAN WEBSTER: Yes?
10 BOB LEBSACK: Just a few words . Bob Lebsack' s my
11 name. I live at 3826 County Road 7 in Loveland. I 've known
12 the Larsons for a good number of years . In fact, they're our
13 neighbors down the road. But my concern is, is I have
14 listened here that I think during the last four or five years,
15 we've had four or five different property owners on this
16 property land. So I wonder if the people that bought found
17 out that they couldn't get a return on their investment so
18 kept selling the property off and on, off and on to get to
19 come back because I think we've had four or five different
20 property owners each in that year. And as I look at the
21 process of, I 've known the farm, I agree that there were some
22 problems developed as far as noxious weeds were concerned and
23 everything else, but it to me, it looks to me like they' re
24 taking a property and taking a sore eye and making it more
25 desirable and better looking to the community. Thank you very
92
940261
1 much.
2 CHAIRMAN WEBSTER: Any questions for this gentlemen?
3 Thank you . Anybody else, please? Yes sir.
4 BRUCE FICKEL: Good morning. My name is Bruce
5 Fickel. I 'm an attorney in Berthoud. For better or worse,
6 you've had a rough morning today. Four attorneys in one
7 hearing is not a good time. I ' ll try to be much more brief
8 than I had initially thought because I think a lot of these
9 issues we 've pretty much beaten to death. There are certainly
10 people with axes to grind here. The Larsons have issues that
11 I would agree with, and I would submit my father, the owner of
12 the Ostermiller farm right across the street would agree with
13 many of their issues . First of all, they've done a tremendous
14 job improving this property. As Donna said, it used to be
15 weeds and junk. They've cleaned up a lot of that. They've
16 got a productive farm over there and we 're pleased to have
17 them as neighbors . They've got a beautiful farm. You can see
18 from those photographs, both from the north and the south, and
19 like I said, I think the Ostermillers and my father are really
20 happy to have them as neighbors . And when you come into a
21 situation like this, you have to put on a lot of different
22 hats and I have a tough time telling you about all of this
23 because I 'm usually sitting in Mr. Morrison's spot. I 've sat
24 on the Board of Trustees of the Town of Berthoud for eighteen
25 years and watched subdividers come into the town, and
93
9440261
1 sometimes the board doesn' t agree and sometimes it does , and
2 I don' t envy you in your position because these are tough
3 decisions . I 've seen Mr. Chilson come representing, very ably
4 I might add, people who want to maximize the economic
5 potential of their property and I would submit to you that the
6 economic potential of this, as Mrs . Larson has indicated, is
7 certainly not in farming. Farming is $2,000, $2,500 an acre.
8 The economic potential of this at 12 lots at $70,000 per lot
9 is $840,000 . So I think the economic potential of everything
10 in Weld County, especially where you've got a beautiful view
11 like Larsons have on their property, they've got a nice open
12 area that looks down on the Little Thompson, it' s a wonderful
13 place to have a home and I think in that same sense
14 Ostermillers are trying to protect that beautiful view for
15 themselves . And I think we see, when we sit on this side of
16 the speakers and listen to the presentations, we hear people
17 want to (a) maximize that and we also hear people want to
18 protect that. In that same vein, I have a father who owns
19 this farm who doesn't want the Larsons to develop, who' s in
20 the process of developing property right next to Berthoud and
21 he subdivided a big chunk of Berthoud and created that. So,
22 he sits wearing two hats, too. And it ' s a difficult decision
23 when somebody comes in and wants you to develop a piece of
24 property or, I 'm sorry, approve a development of a piece of
25 property.
94
940261
1 But, I think the area that I disagree with Larsons
2 is the area that you have to make your decision. And that is
3 whether or not this commission wants to send a message to all
4 future developers and all future farm owners who are having
5 maybe a break-even time or not even that, that the way out of
6 your economic problems is subdivide. And I think that's what
7 Weld County has not done. When I take a look at my friends in
8 Larimer County, I see mini-ranches, ranchettes, and little
9 properties out there that the Larsons say are economically,
10 have some economic potentials as farms, as agriculture. And
11 I represent the people that she' s talking about in Northmoor
12 Acres a half a mile from there. And I can tell you that that
13 homeowners association is a constant problem. They have
14 problems with every property owner down there on a rotating
15 basis . Too many dogs, too many weeds, too many fences, and
16 it' s unfortunate that we get into this . And I think we 've all
17 seen this and you can see what Weld County has done with your
18 vision to protect the farming and to say that development
19 ought to occur from Johnstown out. It will take years for
20 this to be urbanized. And when it does, that ' s the time and
21 the place for them to develop and put in a density that makes
22 sense. This is not the time or the place. And I think this
23 is a critical, critical issue at our time. And I got, a
24 couple of days ago, this advertisement as I 'm sure you get all
25 the time. These stupid programs that they want you to pay
95
940261
1 $600 to go see, but this is called "Planning & Zoning for
2 Community Land Use Management" and if I might just read two
3 paragraphs to you, it says :
4 "Uncontrolled growth in rural and
5 urban areas is forcing zoning authorities
6 to re-evaluate our existing zoning
7 ordinances and enforcement methods .
8 According to recent studies, the mis-use
9 of land for urban developments is one of
10 the most difficult environmental problems
11 that we face in the years ahead. To save
12 our valuable food-producing lands for
13 future generations will require more
14 effective control of land utilization on
15 the part of every community in our
16 nation.
17 Much greater concern will have to be
18 given to human needs in relation to the
19 social, economic, political and
20 environmental influences . If we're going
21 to promote the health, safety and welfare
22 of the public through land use
23 regulations . The future of our natural
24 environment is very much dependent upon
25 comprehensive planning and effective land
96
940261
1 management techniques . "
2 And I think Larimer County has dropped the ball .
3 And I think you saw what happened in Larimer County this last
4 election. They're much more conservative in Larimer County
5 now and they should be, because we 've blown it over there.
6 We've got all these problems . We've got these subdivisions
7 that have got these septic systems , they've got these
8 mini-sewage treatment systems that aren't working. And
9 they're draining right into the water sources that those
10 people who live a little further down the stream are having to
11 consume. None of us want that. I would hope that the
12 problems, the disagreements that we've had with Larsons can
13 end at this point in time. They certainly weren' t here before
14 this came and I hope we can walk away with this and still be
15 friends as we 've been in the past. This obviously strains a
16 friendship when something like this happens . That isn't the
17 issue, though. The issue before this board is what message do
18 you want to send to everybody in the community. Larsons are
19 coming back before this board, or at least have the potential
20 to come back before this board, with another subdivision.
21 Mountain View #1 and #2 where they are taking 10-acre parcels,
22 which they' re creating here and dividing that into smaller
23 parcels . And that' s what you do. Nobody can farm
24 economically on ten acres . So then Larsons now are faced with
25 a 10-acre parcel that isn't agriculturally productive and now
97
94.0261
1 they' re going to come back to this board in a couple of months
2 perhaps and say, "Well, the 10-acre parcel and the 15-acre
3 parcel that we have over here, aren' t any good either and we 'd
4 like those subdivided into four lots and five lots . " And
5 that' s exactly what you're going to be faced with in a few
6 years down here. And that 's exactly what Larimer County has
7 been faced with. But you have to look a little bit beyond
8 that and say, "This isn' t in anybody' s best interest. " It
9 makes economic sense now; it makes bad planning sense forever.
10 Thank you.
11 CHAIRMAN WEBSTER: Thank you. Any questions for
12 this gentlemen?
13 COMMISSIONER KIRKMEYER: I would ask, were you the
14 person who needed to speak by 1: 00?
15 CHAIRMAN WEBSTER: Yes .
16 MR. FICKEL: Yes, and I 'm out of here. I have to go
17 prosecute the speeders in Milliken.
18 CHAIRMAN WEBSTER: Thank you. I think at this time
19 we better adjourn or recess, I should say, not adjourn, and
20 COMMISSIONER HARBERT: 12 : 45 is fine with me.
21 CHAIRMAN WEBSTER: 12 :45 everybody? We can split
22 and come back and give it another shot.
23 MR. CHILSON: 12 :45 is when you reconvene?
24 CHAIRMAN WEBSTER: Yes .
25 (A recess was taken)
98
940261
1 CHAIRMAN WEBSTER: We will reconvene the hearing on
2 Whitetail #1 and #2, the Larson case. And let the record show
3 that all five commissioners are in attendance. And with that,
4 I would continue with the testimony from the audience. Is
5 there anybody in the audience this afternoon who would like to
6 speak for or against this application?
7 DAVID OSTERMILLER: I 'm David Ostermiller. Do I
8 need to give my address? Okay, 4705 Weld County Road 46 ,
9 Berthoud, Colorado. And I 'm concerned about this whole deal
10 because, you know, I 've lived out there 25 years of my life
11 and, you know I like living in the country. That' s what the
12 country is and agriculture is, is being out away from the
13 cities . I think we ought to leave the developments towards
14 the little towns and let them expand out instead of bringing
15 the city out in the middle of the country and let them expand
16 out from there. And the other night I was watching some
17 educational channel on, I. don't remember, Channel 6 or 12, and
18 this, well three dairy men, you know they were out in the
19 somewhere, I don' t remember what state it was . Anyway, these
20 people start moving in out in the country and they start
21 blaming the dairy men for nitrates in the water and birth
22 defects in the kids and stuff, and these poor dairy people
23 have been there long before the houses ever showed up and I
24 just think that' s what I will be seeing here. And I believe
25 that after these little subdivisions are developed, the
99
940261
1 developer ain' t going to care what happens after they' re
2 developed. You know, they don' t care about the people that ' s
3 out there after their money' s in the bank. So I just, you
4 know, I want to look out for the future for younger
5 generations so they have someplace to have agriculture if they
6 want to do it. And I thank you for my time and your time and
7 that ' s all I have to say.
8 CHAIRMAN WEBSTER: Questions, please? Anybody?
9 COMMISSIONER baxter: One question. I could have
10 asked your father this, but, you farm quite, 800 acres of
11 ground out there? Do you farm next to Northmoor?
12 DAVID OSTERMILLER: No, but my uncle Wilson does and
13 they have problems with the, you know, people complaining
14 about agriculture sprays from, you know, crop dusters and
15 stuff. And on this show one thing I wanted to tell you was
16 there was another farm on this channel . There was, you know
17 these people blamed this agriculture sprays for killing their
18 dogs and cats and that's just what' s going to happen if. You
19 know, I like living out in the country and that 's what, you
20 know, what it should be.
21 CHAIRMAN WEBSTER: Any more questions? Thank you.
22 MR. SOLETA: I 'm Mike Soleta. I live at 4912 Weld
23 County Road 46 . Before I get into my prepared speech, I 'd
24 like to make a couple of observations that I have a hard time
25 understanding some things here this morning. One is that
100
940261
1 first Mrs . Larson stands up here and portrays herself as an
2 agricultural person coming out of a history of farms and
3 farming now, and being current on what ' s going on in the
4 agriculture community, and also her husband being a registered
5 professional engineer. And on the other hand, she portrays
6 this land as being a piece of worthless ground infested with
7 weeds and non-productive and I can' t understand how people in
8 that expertise can even buy a piece of ground like that.
9 That ' s kind of an interesting observation, unless of course
10 there' s ulterior, other motives involved in that.
11 The next observation I made is that she stands up
12 here and tries to tell us that the only way that ground on the
13 south is, can be anywhere near productive is to have this
14 elaborate sprinkler system up there and nothing else is going
15 to work. And yet, if we look at the map, the main part of
16 that subdivision falls within that area and she ' s saying,
17 "Well , they' re going to get their water out of the pond. " So
18 it doesn ' t make sense to me how they can' t produce anything on
19 that ground without this elaborate sprinkler system and yet,
20 but on the other hand, the people that buy those lots are
21 going to be able to produce anything they want, using the old
22 irrigation system out of that lake . So if that little
23 contradictory thing here . And the other thing is , is that
24 they' re trying to give us a picture that this ground is
25 unproductive and hasn' t been farmed. And I 've been there
101
940261
1 since 1990 and when the insurance company owned it, that
2 ground was farmed every year that I can remember being out
3 there. And as far as I 've asked questions, and it ' s been
4 farmed ever since it ' s been there. So someone has an interest
5 in it, someone has made a profit off that ground, otherwise
6 they would have left it and just, in my opinion, even if it is
7 unproductive and full of weeds, I would rather have that next
8 to me than 12 subdivided lots with people living there. But
9 what I want to say beyond that is that this isn' t a question
10 of subdividing a piece of ground, this is a question of the
11 agricultural community of Weld County and the way of life it
12 represents . And when we take any land in Weld County, whether
13 it be this or anyplace else and divide it, it ' s an
14 irreversible decision. It will never, ever be put back into
15 productive farm land. And so it does two things , it takes it
16 out of the agriculture community and it makes what ' s left in
17 the community more expensive, harder to get, it ' s the law of
18 supply and demand. So I am here this morning to ask the board
19 to consider that for the generations and the future
20 generations of farmers who seek out this type of life, the way
21 of life in the agriculture community. It ' s disappearing, it ' s
22 on the endangered species list . It ' s becoming non-existent .
23 Let ' s not hand down to our children the memory of this way of
24 life, let' s keep Weld County different from Larimer County.
25 One only needs to drive through there to see what ' s happened
102
910261
1 over there. You see, I can't, I 'm not talking for anyone
2 else, but I can' t afford litigation. I can' t afford
3 injunctions and legal counsel . All I have here is you, the
4 board. You ' re not my last chance, you 're my only chance.
5 You're not my last hope, you 're all the hope I have. Thank
6 you.
7 CHAIRMAN WEBSTER: Any questions for this gentleman?
8 Thank you.
9 EVELYN OSTERMILLER: My name is Evelyn Ostermiller
10 and I live across the road from the proposed subdivision and
11 I 'm very nervous so bear with me. We've been farming there
12 for 33 years . We have had farming ground around us all our
13 life and we'd like to maintain that kind of life. I 'm an
14 optimist. You have to be an optimist to be a farmer, you
15 always have to look for the better part because tomorrow' s
16 always going to be better. And in this situation, I can only
17 see problems arising. We have another farm that we farm not
18 too far from there that my son is farming, and there have been
19 people that have moved out from town, they want to live in the
20 country. And I don't blame them. And they bring their
21 children and they don't realize the problems that they have in
22 the farm. They have their 3-wheelers and they're out riding
23 around. They see these boards in the ditch, they can pull the
24 boards out. What does that hurt, pulling that board out of
25 that ditch? Well, that ' s how our water is measured. And they
103
940261
1 ride over the plastic pipe that we irrigate with, put holes in
2 it, you know they don' t think about those things . They don ' t
3 do this vandalism intentionally, it ' s they don' t know better.
4 And these are problems that are bringing, that are going to
5 bring into our lives . We've chosen agriculture as our life
6 and have two sons that wish to stay in agriculture. We enjoy
7 our lifestyle and the wildlife around us . We have fox in our
8 pasture, we have whitetail deer that come in and feed in our
9 cornfields and I 'm sure you have them down around your pond.
10 I have some red-tail hawks that nest in my trees and my
11 grandson and I, we studied the birds together and we love it
12 out there. And we just, we can't see where 12 houses and more
13 people in there will be a benefit to our lifestyle. I don't
14 know whether any of you had a chance to drive down the road.
15 They say the road is adequate, but it is not adequate for a
16 combine and a car to pass or another piece of farm machinery;
17 and I think I mentioned before that you get the obscene signs
18 from your neighbors when they go by and you can't get off of
19 the road. I just am totally against this subdivision and I am
20 glad to have a board that will listen to our concerns . Thank
21 you for your time.
22 CHAIRMAN WEBSTER: Any questions of Mrs .
23 Ostermiller? Thank you. Is there anybody else who would wish
24 to speak this afternoon on the application? At this time we
25 will ask the Larsons and their representative to answer, make
104
940261
1 closing comments and answer their concerns presented by
2 testimony.
3 MR. CHILSON: John Chilson on behalf of the
4 applicants . I just want to start out by saying that the
5 reason that I began my questioning of staff, Monica, this
6 morning about amendments to, and Mr. Morrison, about
7 amendments to your minor subdivision regulations is exactly
8 the kind of testimony that you've just heard. By approving
9 this regulation, or approving this proposal, you 're going to
10 open the flood gates . You're going to send a message to the
11 agricultural community that it 's at an end. You' re, going to
12 destroy agriculture and a way of life. The point is that by
13 approving this you aren't sending any such message. You
14 aren't opening any floodgates because it' s basically one of
15 the very, very few that got in within the time window when the
16 regulations permitted it. That was the whole purpose for my
17 bringing it up in the first place. Basically it' s not
18 relevant, but I thought it would be worthwhile for the people
19 in the audience to hear it, too. This is a very limited
20 proposition, and no others are going to come through this way.
21 So all that opening the floodgates stuff is totally irrelevant
22 and not true.
23 I would like to clarify through Mr. Larson a couple
24 of points on the fire protection system. Mr. Larson, you had
25 filed a report with the staff regarding your fire fighting
105
940261
1 flows water system from the lake to the pipeline. Mr.
2 Ostermiller testified that the, in the winter time that pond
3 froze solid and there wasn' t any water in there. Would you
4 respond to that?
5 MR. LARSON: Yes . This is Ivar Larson. I 'd like to
6 read the letter that I drafted to Monica and add to that the
7 answer here to Mr. Ostermiller and others . Fire protection
8 will be provided by a centrally located fire hydrant water
9 truck filling pipe that is located within 2500 feet of all
10 home sites . Water is supplied by Schmidt Lake, an adjudicated
11 lake with an 8 .4 acre foot capacity and constant water inflow
12 even at the driest points of time in the year of at least 25
13 gallons per minute of water. Schmidt Lake property and water
14 rights are privately owned by Donna and me, the applicants,
15 and will be deeded to the Whitetail Acres Homeowner' s
16 Association for agricultural and fire use on the two
17 subdivisions . This summer we installed an 80 psi, 10-inch
18 pipeline from Schmidt Lake to a central pivot system which
19 will be moved to another farm and replaced by a fire hydrant
20 water truck filling pipe installed at the central location.
21 The line generates, as I mentioned this morning, 15 psi
22 through gravity flow from the lake and is further pressurized
23 to 40 psi by a booster pump when energized. Power to this
24 pump is supplied by a 50 KVA transformer and a 240 480 single
25 phase converter, rotophase converter, providing a flow of 700
106
940261
1 gallons per minute. The water at this dispersal station is
2 filtered at both ends . We have a Clemons filter at the riser
3 of the sprinkler and we have slotted pipe and gravel filter at
4 the inlet from the lake. Lake water enters the pipeline
5 through this slotted pipe and is further filtered then by the
6 Clemons filter at the riser. And then I mentioned earlier the
7 turn-around that will be built so the fire truck can get
8 around and head either uphill or downhill . All the supply
9 comes from a filter rock bed slotted pipe system that 's below
10 frost level to the riser. And the riser will be contained in
11 a very small heated shed. We have brought down 110 volts
12 power along with the underground to serve the center pivot and
13 that will keep the riser itself from freezing. So the fire
14 trucks strictly, it will stop, it will open the door, it will
15 flip on the booster pump and everything is live and ready to
16 go. The elevation in the lake is controlled by an overflow
17 that will be at least five feet above the inlet. So we're
18 well below the frost level in the ground and in the water. So
19 we ' ll be supplying it from liquid water. And the line is
20 always fully charged to the center pivot. It's designed to
21 contain those pressures from the lake. Thank you.
22 MR. CHILSON: Now let' s talk about Little Thompson
23 Water District. Have you been advised by the District as to
24 their present availability of taps for the two 80-acre parcels
25 that were approved by the Commissioners?
107
940261
1 MR. LARSON: Yes . I met with Mr. Cook, and without
2 any line improvements, he committed to two water taps without
3 any line improvements and the pressure problem he mentioned to
4 Mr. Ostermiller was having was due to a 200-foot line that was
5 about one inch wide, or one inch diameter, and it wouldn't
6 really matter what they did to the line, he still wouldn't
7 have pressure for his cattle. When we go beyond the two water
8 taps, then we have to make the improvements, which we 're
9 committed to make, and that would be going for the 6-inch line
10 from the northwest corner to I-25 and he is drafting a letter
11 to me stating for which water taps we need to make what
12 improvements on.
13 MR. CHILSON: And you and Mrs . Larson are committing
14 here that you will provide the upgrade to the system to
15 provide the adequate domestic flow to the water taps for this
16 property?
17 MR. LARSON: Yes .
18 MR. CHILSON: Alright. And that will be done prior
19 to building permit stage?
20 MR. LARSON: Yes .
21 MR. CHILSON: Okay. That's all the rebuttal
22 testimony that we have. I don't know what your procedure is
23 ordinarily in these situations, I 'd like an opportunity to
24 make a little summation and be very short, I 'd like to do
25 that.
108
940261
1 CHAIRMAN WEBSTER: Are there further questions of
2 Mr. Larson? I would like to have a few things addressed. I
3 guess the one thing that the soil conservation states that
4 this is top prime soil and I think, did you answer that as to
5 the building sites what class, what was the class number on
6 that, 40?
7 COMMISSIONER KIRKMEYER: 42?
8 CHAIRMAN WEBSTER: 42 . What class of land that is?
9 MRS . LARSON: The small, and it ' s not Exhibit "D" ,
10 it' s Exhibit something or other. Did anyone write on it?
11 MR. MORRISON: "Y" .
12 MRS . LARSON: "Y" . I apologize, I didn't know when
13 we started here that I had to change the letters .
14 CHAIRMAN WEBSTER: And what' s 53?
15 MRS . LARSON: 53, we have the soils book with us .
16 My husband may have to get that out.
17 MR. LARSON: That' s a sandy otera soil and it's
18 highly sloped, again from the slope going down to the river
19 and 42 is a Nunn clay, and 17 I believe is the Colby soil .
20 The Colby soil that we have, if you look at the horseshoe on
21 our development, in Lot 2, the lower part, we have excluded
22 any home sites in that area whatsoever. We feel that, again,
23 we want the open space and from the homes on the ridges which
24 are not located primarily on the Nunn clay, they will look
25 down over that particular soil and that goes with Lot 2 on
109
94o2G1
1 Whitetail Acres #1 on the left side. The home site for that
2 will be below the Steinkings who live in the non-irrigated
3 tract and
4 MRS . LARSON: That's non-included tract.
5 MR. LARSON: The non-included tract, and that's so
6 that it won't block their view of the mountains and that home
7 site will be up at the upper end of the flood irrigation which
8 will irrigate then that entire field. So we have preserved
9 soil 17 . The other thing that we have done in soil type 17 is
10 located the homes to the west of the ridge so that behind each
11 of the home sites the flood irrigation would flow over the
12 Nunn clay and to the drainage swell off to the northeast
13 towards Mr. Soleta' s . So we have really spent a lot of time
14 locating the home sites out of the soil type 42 as much as
15 possible and we feel that the rougher the tract the smaller
16 the site. Then as you get down into the lower areas where the
17 sandy otera soil flattens out and you get into the flood
18 plain, we have eliminated any building sites in those areas
19 and the home sites are on the roughest parts up above. And
20 again, it gets into flood plain problems . We stayed out of
21 those. We have set an elevation restriction below which they
22 cannot build any structure. So I think we have optimized what
23 our intent was with this break-up into these lots to preserve
24 that.
25 MRS. LARSON: There is a small amount of 42 that 's
110
940261
1 on the west, which you can see this little finger that comes
2 down, but it' s also been designated highly erodible. So I
3 don't know how Ms . Mika classifies that. I would not classify
4 that in terms of the prime soils at that point.
5 CHAIRMAN WEBSTER: Thank you. I believe that
6 completes my questioning. Anybody else? George?
7 COMMISSIONER BAXTER: I think Monica has something
8 she wanted to say, I think.
9 MS . MIKA: Let me make a point of clarification.
10 First of all, I 'm not the one that classifies these soils .
11 These soils are classified for the, by the SCS office. And I
12 believe attached to your staff recommendation you had a copy
13 of soils surveys of Weld County, southern part, sheet number
14 13, Johnstown quadrangle. And it delineates four soils types
15 that are located on the site that are classified as prime farm
16 ground by the SCS . That' s just one point I wanted to make so
17 you have the definitions in front of you, and I didn't know if
18 you remembered that you had this .
19 The second point of clarification I would like to
20 make is Mrs . Larson said that highly erodible soils are common
21 in Weld County. That' s correct, they're very common. As a
22 matter of fact, 75 to 90 percent of all Weld County farmland
23 is classified as a highly erodible soil, and the source comes
24 from Steve Peterson, U.S . Department of Agriculture SCS
25 Office. So by saying that it' s highly erodible, and if you
111
940261
1 look on the map it doesn't look like there ' s 90 or 75 percent,
2 so I think as far as the overall ramifications go that this
3 soil is pretty good as compared to Weld County as a whole. I
4 just wanted to let you know what we ' re dealing with based on
5 other soil types in Weld County. That' s all my points I
6 needed to make on soil classifications .
7 CHAIRMAN WEBSTER: Thank you. Further questions for
8 Mrs . Larson?
9 MRS. LARSON: I was just going to say, as Ms . Mika
10 just said, we do agree there are a lot of highly erodible
11 soils in Weld County. I do think the thing that needs to be
12 taken into consideration here is that this is in combination
13 with the Little Thompson River and not all highly erodible
14 soils border a river and that' s the major consideration that
15 we feel is important here.
16 COMMISSIONER BAXTER: Mr. Chairman, I had a question
17 of the applicant, too. It was asked by someone else in the
18 audience about your plan to water, irrigate, whatever, these
19 lots after they're put in. That if there' s been a problem,
20 particularly down in this bottom area with flood irrigation
21 before, and the sprinkler of course is taken out when you put
22 the lots in, how would these people then irrigate that land if
23 they didn' t irrigate it with flood irrigation? Wouldn't they
24 continue to have problems?
25 MRS. LARSON: I ' ll briefly address that and I ' ll
112
940261
1 probably turn it over to my husband because he basically
2 designed the irrigation system. I think one thing you have to
3 consider is that one person irrigating all that ground is one
4 thing and having what would be about nine home owners down
5 there each handling smaller acreages makes a great deal of
6 difference . We feel that if you live there and if you have
7 your ten-acre plot, whatever, that' s manageable by one person
8 to irrigate and they can time their irrigation because they've
9 got the lake. It' s not a question of interfering with other
10 farmers or interfering with ditch ordering water and shutting
11 it off. They can store their water in the lake and then call
12 for it when they need to and when they have the time to work
13 with it. And a pasture does not require the intensive
14 irrigation that a row crop would such as corn and wheat. And
15 again, these are designed so that they will accommodate the
16 flood irrigation. And again, you 're talking on grasses .
17 We're establishing this all into a resilient, native pasture.
18 That does not have the erosion characteristic of row crops .
19 It does not require the chemicals that row crops require.
20 Ivar do you have anything to add that?
21 MR. LARSON: I might add to that. With the ditch
22 system that we have and with the grasses that we have planted,
23 let's assume that these people turn the water on on their lots
24 and go off to their jobs because they're going to be working
25 at other jobs . We, with the ponds and the flow from Schmidt
113
9110261
1 Lake and the valving, they can turn the water on their tracts
2 and let it run across grassy sites and really not create much
3 sediment. The runoff coefficient is low. Also, they won' t do
4 any damage on anyone else. And I think that ' s very unique in
5 an agricultural area. This site is unique in the fact that
6 there is no foreign water crossing internally on this land.
7 That means that the farm to the east does not get any source
8 of irrigation water through the interior of this particular
9 site, it only gets it through the ditch conveyance that's
10 right along County Road 46 . So that' s easy for him to
11 maintain without even contacting any of the internal property
12 owners . The other thing is that the waste water from this
13 site is designed such that it doesn't flow on anyone else. It
14 actually goes through the distribution of Turtle Pond and
15 Sandy Dam, which are designed so that if they' re off to their
16 job and they have the water running on their site it will go
17 over the grassy areas, be picked up, go down through and
18 directly then be released into detention retention ponds and
19 into the river. And that's all taken into account in our
20 storm drainage. We also have the silt pond that we mentioned
21 on the upper end. That's not a problem. And Schmidt Lake
22 then, the valve can be controlled. It can be opened and
23 closed at any time which is again, unique. So I think the
24 problems that the opponents are talking about here are not
25 applicable in this particular site the way it is uniquely
114
940261
1 designed. Hopefully, I ' ve answered your question. Now it is
2 not suitable for row crop. And I agree with Monica . A lot of
3 the highly erodible soils within Weld County are highly
4 productive, but we have such extreme slopes here that the row
5 crop just is impossible. It just doesn' t work and it's
6 detrimental to it. But with the grass, it will work and it
7 will produce excellent pasture and grasses for the homeowner.
8 COMMISSIONER HALL: Mr. Chairman, I guess I have two
9 questions . One of them is in regards to the County Road 46 .
10 There was comments by the public brought up here that the road
11 is not adequate and the applicant has stated that the road is
12 adequate and I know Drew Scheltinga, our County Engineer, is
13 here. I 'd like to have some information from him as to what
14 his consideration of Road 46 would be for this .
15 DREW SCHELTINGA: Drew Scheltinga, County Engineer.
16 We have written comments regarding the access of Weld County
17 Road 46 . Presently Road 46 has traffic counts, according to
18 our records, that range from 92 vehicles a day to 126 vehicles
19 a day. So in the area of about 100 vehicles. That is
20 acceptable for a gravel road for serving this kind of an area.
21 We can reasonably estimate the traffic that will be generated
22 from a development like this . That information comes from the
23 Institute of Traffic Engineers Trip Generation Manual and is
24 very simply based on a lot of studies that 's done, that the
25 amount of trips that are generated from different types of
115
940261
1 uses, all the way from different types of industrial to
2 residential . Based on 12 lots, this site would generate
3 approximately 114 vehicles a day based on their factors .
4 Let's say 100 around cars a day. What would happen is that
5 the road demand would double on Road 46 . That gets us up to,
6 from around the 100 we have today to around an additional 100,
7 gets us up to that 200 vehicles a day threshold which the
8 Commissioners are well aware, from the work that you 've done
9 in working with us and developing our road plan, that' s about
10 the traffic count where the public is not satisfied with the
11 level of service with the road. That is the level where dust
12 pollution is a problem, where washboards are a problem, so we
13 feel that it is appropriate for improvements to be made to
14 Weld County Road 46 and we have recommended a road maintenance
15 and improvements agreement be reached between the board and
16 the applicant. We have not discussed with the applicant what
17 form that might take. In some cases we do discuss the road
18 improvements agreement prior to, in some cases it's a
19 condition of approval . Monica does have, in the recommended
20 conditions of approval, under the prior recording of the plat
21 that the Board of County Commissioners shall approve both the
22 subdivision improvements agreement which covers the internal
23 improvements and a road maintenance agreement. And that is
24 what we are recommending to the board, that there are
25 improvements made to this road to support the additional
116
940261
1 traffic. In my opinion, the improvements that it would take
2 to support 200 vehicles a day plus , is paving the road.
3 COMMISSIONER HARBERT: And would you pave the whole
4 mile from the frontage road to Road, I think it 's 15, I 'm not
5 sure, which runs, it would be the next paved road that runs
6 north and south?
7 MR. SCHELTINGA: The Engineering Department hasn' t
8 done a traffic study of this area to try to determine how the
9 traffic, what might split, where it might go. Normally that's
10 a burden for the applicant . We have not studied it that close
11 as to where we think it is appropriate. I would suspect that
12 the majority of the traffic might go to the interstate outer
13 road. I would suspect, off the top of my head at any rate
14 without detailed study, that improving the road from the
15 access to the interstate is appropriate. But I think it's for
16 the applicant to look at that and come forward to the board
17 with their opinion on road improvements. This is normally the
18 case.
19 COMMISSIONER HARBERT: It might be Road 13 there,
20 I 'm not sure which it is, but it's paved and it runs north and
21 south and it goes I think by Johnson Acres and so it would be
22 the first paved road to the east.
23 MR. SCHELTINGA: That would be Road 13, I think. I
24 would remind
25 COMMISSIONER HARBERT: Well, considering, I believe
117
9/1®261
1 that this would be in the Johnstown School District, there
2 would be a lot of traffic into the Johnstown area because of
3 that. But that ' s not, only part of it because, according to
4 the testimony, and I did drive down that road and it is narrow
5 and it is, I would say minimally kept up, that it would have
6 to be considerably widened before we ever thought about paving
7 it. And so major shoulder and drainage type of problems would
8 have to take place.
9 MR. SCHELTINGA: That' s correct. I think it would
10 be a major improvement. It ' s the kind of improvement that as
11 we discuss and give the board ranges of costs that it is
12 probably in our medium to high cost for typical county road
13 improvement, somewhere in the area of $120 , 000 to $130,000
14 type of improvement. It ' s not a real simple one and just
15 ready for an asphalt map to be put on.
16 CHAIRMAN WEBSTER: Further questions?
17 MR. CHILSON: I do. I have a question of the
18 engineer after the board. John Chilson. Sir, when did you
19 develop your information on the trips per day, the number of
20 trips generated and the need for improvement and maintenance
21 to the road?
22 MR. SCHELTINGA: I don' t remember the dates when
23 the traffic counts were taken. They're, well I guess I 've
24 mentioned they varied from 92 trips a day to 126, which is for
25 this kind of use, is about as accurate as we can get.
118
940261
1 MR. CHILSON: When did you have the information
2 relative to giving input into this minor subdivision
3 application? Did you have that information at the time the
4 minor subdivision application was referred to your department?
5 MR. SCHELTINGA: I provided this information on
6 March 16 , 1993, when the original sketch plan review
7 application for, at that time it was called Agview Estates was
8 given. Under S-133, I 'm sorry, S-333 and S-334 and also in a
9 memo dated December 16 , 1993, for this application of
10 Whitetail Acres #1 and #2 .
11 MR. CHILSON: Okay, does that report in December of
12 1993 or the prior one, indicate your department 's position
13 with regard to the necessary improvements to the road caused
14 by the approval of the subdivision?
15 MR. SCHELTINGA: It is the applicant' s
16 responsibility to
17 MR. CHILSON: Excuse me, would you answer my
18 question?
19 MR. SCHELTINGA: Alright, would you repeat your
20 question please.
21 MR. CHILSON: My question is, did you in either of
22 your letters, December or the previous letter, state your
23 department' s position on what improvements should be required
24 of the applicant if the subdivision is approved?
25 MR. SCHELTINGA: I think in both my memos, I mean I
119
910261
1 can read them here if you like, clearly indicated that there
2 was a need for improvement of the roadway and the applicant
3 should be required to enter into an improvements agreement.
4 MR. CHILSON: Alright. Did you at any time prior to
5 this hearing, communicate to staff or to the board the
6 opinions that you have expressed here today with regard to
7 what specific improvements would be, should be required of
8 these applicants?
9 MR. SCHELTINGA: No.
10 MR. CHILSON: Why?
11 MR. SCHELTINGA: It' s the applicant' s burden to look
12 into the traffic impacts and make that, and mitigate and make
13 a recommendation indicating those, to mitigate those impacts .
14 MR. CHILSON: Is it not also your duty to inform
15 staff of the recommendations of your department with regard to
16 specific improvements that you feel that are made necessary by
17 a proposed development?
18 MR. SCHELTINGA: Well, I think I did clearly
19 indicate by these memos that improvements were necessary. And
20 no, I do not think it 's my duty to express what exactly those
21 improvements should be. That's the burden of the applicant,
22 that' s my opinion.
23 MR. CHILSON: So you think it's fair then to say
24 nothing in the whole process and make no communication
25 specifically to staff as to what improvements are necessary
120
940261
1 until the day of a public hearing and then you come forth with
2 specific proposals , that ' s your idea of basic fairness? I 'd
3 like to know what Weld County traffic does .
4 MR. SCHELTINGA: Well I think I 've expressed my
5 opinions several times .
6 COMMISSIONER KIRKMEYER: Excuse me, I 'm having
7 trouble with this .
8 COMMISSIONER HARBERT: I am too.
9 CHAIRMAN WEBSTER: We 're getting into a cross-
10 examination, Mr. Chilson, and simply the
11 MR. CHILSON: Exactly, your honor, we are.
12 CHAIRMAN WEBSTER: Well we don't have that in our
13 type of hearing, a cross-examination between our director
14 heads and applicants . You simply communicated with planning
15 and as far as his position is, I think he carried it to what
16 degree that he felt was necessary and not to make
17 recommendations to applicants . I don' t believe he' s ever done
18 that in the past, nor expected to by the county commissioners .
19 MR. CHILSON: I never asked him to make a
20 recommendation to the applicant. I am appalled. I have done
21 work in Larimer County, Boulder County, Adams County, Douglas
22 County, and Colorado Springs . And never in 15 years of doing
23 this kind of work have I experienced this happening. An
24 applicant is entitled, he is a property owner, he is a
25 taxpayer. He is entitled to basic fairness in this process .
121
91.0261
1 We haven' t asked him to be our expert, we have asked for the
2 basic fairness of being advised of all input to staff in this
3 proceeding. We have a gentleman who has hung back like a big
4 brown dog in a manger who comes forth only in hearing when
5 there is no opportunity for the applicant to be prepared for
6 it, and makes a recommendation for off-site improvements
7 including paving.
8 COMMISSIONER KIRKMEYER: Excuse me. Pardon me.
9 MR. CHILSON: Now, I am entitled to cross-examine
10 COMMISSIONER KIRKMEYER: Excuse me!
11 MR. CHILSON: Just a moment. I thought I had the
12 floor.
13 MR. MORRISON: Mr. , well, wait a minute.
14 COMMISSIONER KIRKMEYER: No.
15 COMMISSIONER HALL: As you were, please.
16 COMMISSIONER KIRKMEYER: Excuse me.
17 MR. CHILSON: Excuse me. Go ahead.
18 COMMISSIONER KIRKMEYER: Thank you.
19 MR. CHILSON: You're welcome.
20 COMMISSIONER KIRKMEYER: Thank you. I am a member
21 of this board. I think I can do an interruption at any point
22 as long as the Chairman says it' s alright.
23 MR. CHILSON: The chairman hadn' t spoken yet, that' s
24 why I continued.
25 CHAIRMAN WEBSTER: Mrs . Kirkmeyer will be able to
122
940261
1 speak.
2 COMMISSIONER KIRKMEYER: I would just like to know,
3 first of all, the memorandum that we have copied in our
4 packets, did you have a copy of that, or did your applicant
5 see a copy of this?
6 MR. CHILSON: I can't read it from there.
7 COMMISSIONER KIRKMEYER: The date on it is December
8 16, 1993. The memorandum that our County Attorney, or County
9 Engineer referred to. Right in there it specifically states
10 that applicant should be required to enter into a road
11 improvement agreement with the board. I think that 's all that
12 needs to be required at this point from our County Engineer.
13 I don' t think it should be up to you to decide what this board
14 wants to hear at their hearing. We requested the County
15 Engineer be here to address questions that we had. At this
16 point, at the point where he wrote in here about entering into
17 a road improvements agreement, it is up to the applicant at
18 that time to discuss it with the County Engineer or with the
19 planner to see what he is meaning by a road improvements
20 agreement. It is not up to our County Engineer to do that.
21 He is our expert on these matters . He' s our County Engineer,
22 and like I said, we asked him to come here and testify.
23 Commissioner Hall asked him to come forward and testify so he
24 could ask questions of him. I think it' s really inappropriate
25 of you to tell us what we should be doing at our meetings and
123
94,0261
1 what you ' re appalled by because, frankly, I 'm appalled by your
2 attitude and the way you 've addressed the board today.
3 MR. CHILSON: Then let ' s take them one by one.
4 There is no indication that that is off-site improvements .
5 There are road improvements agreements internal to the
6 subdivision are required. There is nothing specified in there
7 about off-site improvements . They are two distinct things .
8 That was not notice of an off-site improvements agreement
9 requirement. Secondly, we 're talking due process . I am
10 granted the right to represent a client in this hearing. If
11 I have to do so in a manner that is, seems fractious to you in
12 some way, I do so with due respect for your power and
13 authority, but I have the right and the duty to make the
14 points necessary to create a record to support my client's
15 position in this case and will do so whether you like it or
16 not. The point I am making is a procedural due process point.
17 You may think you aren' t governed by law. You may think you
18 don' t have to allow things in this hearing.
19 MR. MORRISON: Excuse me, Mr. Chairman, can I .
20 CHAIRMAN WEBSTER: Yes .
21 MR. MORRISON: Mr. Chilson, I think making
22 MR. CHILSON: I 'm getting very upset. I 've never
23 been treated like this . I never have and I 've been before a
24 lot of boards .
25 MR. MORRISON: Well I understand. Mr. Chilson, I
124
940261
1 think if you would confine yourself to making a record instead
2 of editorializing about the linage of the commissioners, you
3 might find them more receptive to your arguments .
4 MR. CHILSON: I didn' t mention lineage at all . The
5 concern I have is this .
6 MR. MORRISON: Well, the first . And let me address
7 one other thing. Due process in a zoning hearing does not
8 mandate that you have the opportunity for cross-examination.
9 And that is, you should know that and we both know that.
10 Basic fairness is the basic guiding provision and you should
11 make your record on that. The board should allow him to make
12 that record. And so let' s get on with that issue rather than
13 getting into a back and forth on this . Due process does not
14 mandate, though, the opportunity for cross-examination.
15 COMMISSIONER BAXTER: Mr. Chairman.
16 CHAIRMAN WEBSTER: Yes .
17 COMMISSIONER BAXTER: I don't know whether it' s
18 appropriate at this time. Some point in this conversation I 'd
19 like to have a point clarified by our legal counsel and I will
20 hold that off until the end of this if it' s appropriate. But
21 I, it has to do with this point. I mean, I will do it at any
22 time. I don't need to do it right now, but I need a legal
23 answer to. I would be willing to wait until the end of his
24 CHAIRMAN WEBSTER: I would do it now, if you would
25 like to do it.
125
940261
1 COMMISSIONER BAXTER: Mr. Morrison, I would ask, in
2 your opinion, if this memorandum of December 16 , 1993 , from
3 our Engineering Department to Monica in Planning, it states
4 under number 3 that we're talking about Weld County Number 43,
5 talking about the travel count, vehicles per day, and I don' t
6 know whether you have it in front of you. I don' t need to
7 read the whole thing, but number 3, paragraph number 3 that
8 specifically is talking about that and the fact that a road
9 use agreement is in conjunction with that in that paragraph,
10 would you consider that to be sufficient enough notice to the
11 applicant that they needed to do something, that this did not
12 constitute an internal road agreement, but an agreement on
13 Road 46 .
14 MR. MORRISON: I think the board can make a factual
15 determination whether the applicant was deprived of the
16 opportunity to deal with that issue. I mean, I don't think
17 you need counsel to interpret that for you. The language in
18 front of you, there is also the earlier letter that Mr.
19 Scheltinga referred to. You know, I think it' s fairly clear
20 out in space without me having to tell you how to read it. I
21 think you should read that and make your own judgment.
22 COMMISSIONER HARBERT: Well, I guess this same type
23 of problem has arisen, or it hasn't been a problem before on
24 other subdivisions so never have we ever been questioned that
25 we had to put off-site road. When we said Weld County Road 43
126
940261
1 or 6, 46 , I think that specifically indicates that it ' s not an
2 internal road of the subdivision. And we 've had many road
3 agreements by subdivisions before and I ' ve never seen anyone
4 question our engineer like they have today.
5 CHAIRMAN WEBSTER: Any further questions or comments
6 by Drew?
7 MR. SCHELTINGA: I would comment and remind the
8 board that it 's not uncommon that the engineering or specifics
9 of road improvements agreement are determined after the
10 hearing and after the finding of the board regarding the
11 development. There' s many times that Engineering efforts and
12 dollars are not spent at this point in the hearing and that if
13 the board so determines that that land use should be granted,
14 that you commonly do require certain approvals of condition
15 and that this is not an uncommon case or an uncommon
16 requirement by the board. Quite often. Why spend Engineering
17 money if the case is not going to be approved for land use
18 reasons . This is not an uncommon approach at all.
19 COMMISSIONER WEBSTER. Further questions? Thank
20 you, Drew.
21 MR. CHILSON: Mr. Chairman, the problem that we have
22 is, mis-communication on this is that nowhere in your minor
23 subdivision regulations , unless counsel can point it out, and
24 I ' ll be the first to admit I can make mistakes, but I have
25 been through your minor subdivision regulations probably 20
127
9'x02€1
1 times in comparison to the Zoning Ordinance. I have found
2 nowhere that you have a regulation in your minor subdivision
3 regulations that imposes upon the applicant the duty to
4 improve, to make off-site improvements in connection with the
5 minor subdivision application. Clearly you do in your major
6 subdivisions . That ' s right in your regulations . And if I 've
7 missed it I will apologize to everybody for being abrasive,
8 but when I see a report come in here and testimony come in
9 here, that we're going to have to pave a road when there is no
10 regulation that says that, and all of a sudden at the last
11 minute after staff has already made its presentation this
12 morning, and you ' ve already had the benefit, we have somebody
13 called in to make that a requirement of paving, I 'm at a loss .
14 CHAIRMAN WEBSTER: I think what your problem is and
15 where I think you might be interpreting this wrong, is that we
16 asked our engineering staff and our engineering director to
17 make a recommendation from what he has, from his road counts
18 and so forth, and what would be the impact if this subdivision
19 was allowed to be built and completed. It was only a
20 recommendation. He didn' t come in to us with anything more as
21 far as increasing the shoulder width, paving, or anything
22 else. He simply gave us the facts that the car count or the
23 vehicle count would go right up to 200, which is of course,
24 close to triggering what we feel is an adequate reason, and it
25 was his recommendation to us, only recommendation as far as he
128
940261
1 went and in my mind as far as he should go, to say that there
2 should be improvements on this road when it reaches that
3 count. And that ' s where he stopped. He did not say to the
4 Commissioners it is mandatory that you request of the
5 applicant to increase the condition of the road or better the
6 condition of the road or did he give us any recommendations as
7 to what to do. He only reported what his count was and his
8 feeling that with that count, and he backgrounded it with some
9 book that ' s used to establish that count, based on the number
10 of housing sites, and that' s where he stopped. And it 's up to
11 us as Commissioners to say one of our conditions of approval,
12 number 9 , 10 or whatever it would be, we're saying that that
13 road will, in order for you to build this subdivision, a
14 condition of approval will be to add a mile or 3/4 of a mile
15 of paved road to be so many feet wide and so forth and put in
16 the recommendations . We have not done that at this point, but
17 we certainly have the right to. And so I think in the case of
18 our engineer, he certainly did what he was asked to do to
19 present to us what the count would be and recommend to us that
20 we look at is as far as improvement of the road. Now, am I
21 wrong in this in your mind?
22 MR. CHILSON: I thought it was different. I thought
23 he said you had to require the applicant to pave and that was
24 the first time I 'd heard it and I thought it was agreed. It
25 is not that case, I take it back.
129
9,;02G1
1 CHAIRMAN WEBSTER: No . I think it was
2 misinterpreted by you and I 'm sorry about that and I don ' t
3 think Mr. Scheltinga meant that at all and I don' t think he
4 would feel comfortable in doing that and I don' t think he did
5 that.
6 COMMISSIONER HARBERT: Mr. Chairman, I 'd like to
7 refer to Section 4 of the, which is minor subdivisions . And
8 it 's 4 .5 . 9 . 7 that, "Off-site street or highway facilities
9 providing access to the proposed minor subdivision are
10 adequate in functional classification with and structural
11 capacity to meet the traffic requirements of the minor
12 subdivision. " And I believe that' s numbered the same in the
13 1992 subdivision as it is in the 1993. So I think that takes
14 care of any requirement that we might have. If our engineer
15 can provide us with additional information that says that he
16 does not feel that they are adequate and we've had testimony
17 along those same lines, that I don't see that we're out of
18 order at all in requiring some kind of an agreement to be,
19 because I don' t think that if we should allow this subdivision
20 that we should then say now we take full responsibility for
21 getting people in and out of it. Do you have something you
22 wanted to add?
23 MR. MORRISON: That section actually, I mean that is
24 the same as 4 .5 . 16 .7 .
25 COMMISSIONER HARBERT: Oh, okay.
130
940201
1 MR. MORRISON: That ' s the section that applies to
2 the Planning Commission. 16 is the one that applies to you.
3 I think the use of that section is intended that with
4 improvements to that road, the road can be functional for
5 service to the minor subdivision. But I think the memos
6 reflect that Mr. Scheltinga and his staff indicated that as it
7 currently exists it is not and there needs to be some way of
8 bringing it up to meet that section. The process, in terms of
9 determining what that would be when approved, would be to
10 provide Engineering data and the opportunity to work out an
11 agreement that satisfies the legal restrictions and what can
12 be exacted from a property developer and still meet the needs
13 to provide adequate access .
14 CHAIRMAN WEBSTER: Okay, moving on. Any further
15 questions?
16 COMMISSIONER HALL: The other question I guess I
17 had, I almost lost it with all the intervening words . It' s
18 for Mr. Morrison, and the comment was made that the
19 Comprehensive Plan is a guideline not a regulation. Can you
20 address that for me?
21 MR. MORRISON: In several ways the Comprehensive
22 Plan by its terms is more of a policy document than a
23 functional regulation. It does serve some additional
24 functions, however, and the case law that Mr. Chilson referred
25 to, I think is distinguishable. The one case that directly
131
940261
1 dealt with subdivisions had to do with a general comment in
2 the subdivision regulations that subdivisions ought to be
3 developed in accordance with the Larimer County Master Plan.
4 And the decision was based on the Larimer County Master Plan
5 as it incorporated a Municipal Master Plan and involved some
6 provisions that the court in there even found did not . The
7 court even disagreed with the Larimer County Commissioners '
8 interpretation of their Comprehensive Plan. They felt that
9 the issues that were used to disallow the subdivision were not
10 correctly determined by the Commissioners . But further, our
11 subdivision regulations don' t just refer to the comp plan in
12 general . It is a specific criteria within this minor
13 subdivision provisions and it is under that arguably mandatory
14 that the applicant demonstrate compliance. That ' s the
15 language. I 'd also note that our basis for our Comprehensive
16 Plan is not just the statute as most counties would have, it's
17 also part and parcel of the powers under county Home Rule and
18 the availability to a county Home Rule to have more
19 flexibility in the way they put together their administration
20 and regulations . And I think it' s consistent with cases where
21 the Comprehensive Plan has been specifically referred to in
22 rules as having to be considered. There are further cases,
23 including Beaver Meadows involving planned unit developments,
24 Douglas County vs . The Public Utilities Commission involving
25 utility corridors, Condecase involving gravel operations that,
132
9402 q t
1 where it is specific that you consider the Comprehensive Plan,
2 it can' t just be basically muted or of no effect simply
3 because it is more a policy document than a regulation. I 'd
4 also note that in the argument, the argument was there ' s no
5 basis other than the Comprehensive Plan for the staff ' s
6 interpretation or position, as adopted by the Planning
7 Commission. The staff, the Planning staff did not agree with
8 that factual assertion. So, in summary, I think our set of
9 regulations as tied together under the charter, are
10 distinguishable from those that the court found
11 inappropriately applied in the earlier cases .
12 CHAIRMAN WEBSTER: Further comments or questions?
13 COMMISSIONER HALL: You did close the public
14 testimony, didn't you?
15 CHAIRMAN WEBSTER: Yes , I 'm just about to utter
16 that. At this time we will close the public testimony.
17 COMMISSIONER HARBERT: Do we need separate motions
18 for these?
19 MR. MORRISON: Absolutely.
20 COMMISSIONER HARBERT: Okay. Mr. Chairman, I would
21 like to make a motion that we deny S-349 for Whitetail #1
22 Minor Subdivision Final Plat and I will give my reasons that
23 first of all I think that Comprehensive Plan discourages the
24 conversion of agricultural land to urban uses and I think that
25 there ' s a fine line between poor farm ground versus poorly
133
9/10261
1 farmed ground, and I think that we've had testimony here today
2 and we've also had some discrepancies in the soils and
3 drainage and erosion and so on and so forth that substantiate
4 the fact that this can be prime farm ground if it is farmed in
5 a way that would generate good crops . I also have some real
6 concerns regarding septic drainage so close to the river. I
7 know that we 've had some complaints about subdivisions being
8 close to sources of water and although we didn' t talk lot
9 about that today, that I think that is a concern that I have.
10 Maybe it can be unfounded, but it certainly is a concern. I
11 also have a concern with the way it ' s laid out. There is only
12 one road that goes in and out of the subdivision and I think
13 that I 've expressed that concern in other subdivision plats
14 that there needs to be additional ways out in case of a major
15 disaster of some sort . And there has been no other way shown
16 as a way out of that subdivision. I also have concerns about
17 Road 46 because I don' t think it can handle 200 cars a day as
18 it is, and I think it would be very costly to the county to
19 upgrade that road at this time when our road dollars are short
20 and our demands are high. We 've certainly had a lot of
21 difficulty with subdivisions that are near here with people
22 getting along with the farming community and the wants of the
23 people in the subdivision. I think it ' s a case that we ' re
24 learning more and more about, that when you try to make city
25 life in the middle of a rural community, they just don' t mesh.
134
9IO2,61
1 And I think that if this were closer to the City of Johnstown
2 or Berthoud or Mead or somewhere, that it might be a better
3 use of the land, but I don ' t think it is here. I ' ll let the
4 rest of my commissioners comment. But that ' s my motion, is to
5 deny S-349 .
6 CHAIRMAN WEBSTER: Connie has denied, motion to deny
7 S-349 , Whitetail Subdivision. Is there a second?
8 COMMISSIONER HALL: I ' ll second that. And I guess
9 a lot of the things that Connie has said is what 's concerning
10 me. I do believe that we have the authority to use the
11 Comprehensive Plan as a determining factor in this instance,
12 which I believe is not being met. And the Planning Commission
13 had numerous indications as to what they were concerned with.
14 I think we 're not meeting the ag policies along those lines .
15 And I also do feel that the concern of the off-site road is
16 there, which is 4 . 5 . 16 . 7 . And I do think it will increase
17 requirements for the county. I also feel that 4 .5 . 17 . 16 says
18 that the minor subdivision will not cause an unreasonable
19 burden on the ability of local governments to provide other
20 services, and I think that part of the services that Weld
21 County provides is the road system, and I think this will be
22 a burden upon our road system. So I will second the motion.
23 CHAIRMAN WEBSTER: Seconded by Dale Hall . Further
24 discussion on the motion?
25 MR. MORRISON: Can I get a clarification. Was it
135
1 your intent to incorporate the Planning Commission comments?
2 CHAIRMAN WEBSTER: By the motion?
3 COMMISSIONER HARBERT: Definitely.
4 CHAIRMAN WEBSTER: Second?
5 COMMISSIONER HALL: Yes, from me.
6 CHAIRMAN WEBSTER: Further discussion?
7 COMMISSIONER BAXTER: Mr. Chairman, I would have to
8 say that I would certainly applaud these people for the work
9 they've done out there in upgrading this section of land in
10 this particular area, that ' s it 's certainly better than it was
11 before. And that we need to have and we certainly need to, I
12 think, maybe in so doing they've also proved that it can be
13 farmed. I don't know, that could be argued, but it seems that
14 that' s the case. But I think my problem is, too, along with
15 what ' s been said is that the guiding document tells us that
16 when one of these subdivisions is outside of a municipality' s
17 Comprehensive Plan area as well as other reasons, that it' s to
18 be discouraged because that policy' s intended to promote this
19 conversion in an orderly manner, in harmony with a phased
20 growth. And I think that' s part of our problem, I think we're
21 jumping too far too fast and that may be what happened with
22 some others . It may even be with Northmoor, I don't know, but
23 I think we're creating a bit of a problem here by not
24 complying with that. So that would be my reasoning to be
25 against this .
136
9402r1
1 CHAIRMAN WEBSTER: Further comments? I would only,
2 I guess pair more with what Commissioner Hall has said, that
3 in view of the fact that it has not, number one, contiguous to
4 a municipality in which we are ever trying to do and ever
5 trying to get these subdivision contiguous so that the
6 infrastructure, if not immediately, but within a few years
7 would be available to them and get away from the problems of
8 septic systems and so forth and we keep continually trying to
9 work that way. The other thing that bothers me a little bit
10 that I, even though that we have a windshield wiper type of
11 sprinkler system on that property, that by doing that, that
12 they have upgraded the quality of that ground, certainly by
13 reducing the amount of run-off and the production of that
14 ground has come up greatly. And I still feel that those soils
15 are more than adequate to raise prime agricultural crops for
16 us . And that' s my feeling on it. Further comments? All in
17 favor of the motion, I guess I ' ll ask for a roll call vote
18 please.
19 MS. MILLER: George Baxter.
20 COMMISSIONER BAXTER: Aye.
21 MS . MILLER: Connie Harbert.
22 COMMISSIONER HARBERT: Aye.
23 MS. MILLER: Barbara Kirkmeyer.
24 COMMISSIONER KIRKMEYER: Yes .
25 MS. MILLER: Dale Hall .
137
9JC0Q c 1.
1 COMMISSIONER HALL: Yes .
2 MS. MILLER: Bill Webster.
3 CHAIRMAN WEBSTER: Yes . Thank you and thank you
4 all .
5 COMMISSIONER KIRKMEYER: You have one more.
6 MR. MORRISON: I 'm sorry, we need to take a vote on
7 94-23 .
8 CHAIRMAN WEBSTER: Yeah. We 've got S-350 .
9 COMMISSIONER HARBERT: Is it 350?
10 MR. MORRISON: That' s correct. I have your docket
11 numbers .
12 CHAIRMAN WEBSTER: The only docket number I had -
13 COMMISSIONER HARBERT: Yeah, I think it' s S-350 .
14 Mr. Chairman, I move that we also deny Case No. S-350 for the
15 same reasons . I will give the same reasons that I gave on
16 S-349 and also include the Planning Commission' s comments .
17 COMMISSIONER HALL: I would second, including my
18 CHAIRMAN WEBSTER: It' s been moved by Connie and
19 seconded by Dale to deny the Whitetail Subdivision #2, S-350 .
20 Discussion? All in favor of the motion say aye.
21 COMMISSIONERS: Aye.
22 CHAIRMAN WEBSTER: All opposed?
23 (NO ANSWER)
24 CHAIRMAN WEBSTER: So moved.
25
138
`3 -10 4,1
Hello