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Home My WebLink About941600.tiff BOARD OF COUNTY COMMISSIONERS COUNTY OF WELD, STATE OF COLORADO TRANSCRIPT OF PUBLIC HEARING IN RE : TWO MINOR SUBDIVISION FINAL PLATS (MOUNTAIN VIEW ESTATES #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 March 30, 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 1 941600 ELflbl K p 6E 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 APPLICANTS : Ivar Larson Donna Larson John Chilson, Esquire ALSO PRESENT: Shelly Miller, Acting Clerk to the Board Monica Mika, Planning Department Representative Jeff Stoll, Health Department Representative 940302 1 PROCEEDINGS 2 3 CHAIRMAN WEBSTER: Minor Subdivision Final Plat, 4 Mountain View Estates #1, Ivar and Donna Larson. 5 MR. MORRISON: Mr. Chairman, I believe if the prior, 6 previous case is an indication, we ought to call both up for 7 the testimony. Call both 94-28 and 94-29 up. 8 CHAIRMAN WEBSTER: At the same time? 9 MR. MORRISON: Am I correct, Mr. Chilson, that you 10 would prefer to have evidence taken on both at the same time? 11 MR. CHILSON: Yes . 12 CHAIRMAN WEBSTER: Therefore, I will rule in that 13 case, Minor Subdivision Final Plat, Mountain View Estates #2, 14 Ivar and Donna Larson to be considered with case #1. 15 MR. MORRISON: Mr. Chairman, 94-28 is Mountain View 16 Estates #1. Notice was published March 17, 1994 in the 17 Windsor Beacon. Legal description is Part of Section 5, 18 Township 4 North, Range 68 West of the 6th P.M. , Weld County, 19 Colorado, and the applicants are Ivar and Donna Larson. 20 94-29 is the application with respect to Mountain 21 View Estates #2 for a Minor Subdivision Final Plat. Part of 22 Section 5, Township 4 North, Range 68 West of the 6th P.M. , 23 Weld County, Colorado. Notice, again, was published March 17, 24 1994, in the Windsor Beacon. 25 CHAIRMAN WEBSTER: Staff, pardon me. Go ahead. 3 940372 1 MS. MIKA: Okay. Thank you. Monica Mika, Weld 2 County Planning. Prior to reading the resolution into the 3 record, I 'd like to say that on Case S-348 there was a 4 clerical error, so I 'm asking that you look on the blue 5 resolutions . Two lines, or two comments were deleted, and it 6 wasn't caught. So, S-347 and S-348 should be the exact same 7 recommendations . And if it pleases the board, if I could just 8 read Case S-347 into the record? 9 CHAIRMAN WEBSTER: Yes . 10 MS . MIKA: "The corrected Resolution of 11 Recommendation to the Board of County Commissioners was moved 12 by Bill O'Hare, the following resolution to be introduced for 13 the passage by the Weld County Planning Commission. Be it 14 resolved by the Weld County Planning Commission that the 15 application for Case Numbers S-347 and S-348, name Ivar and 16 Donna Larson, address 925 County Road Route 1, Berthoud, 17 Colorado, request for a Minor Subdivision Final Plat Mountain 18 View Estates #1 and Mountain View Estates #2 , part of Section 19 5, Township North, Range 68, this parcel is located 20 approximately 1/4th mile west of the intersection . of Weld 21 County Road 5 and State Highway, be recommended unfavorably to 22 the Board of County Commissioners for the following reasons . 23 1) It's the opinion of the Planning Commission that 24 the applicant has not shown compliance with Section 4 .5.9 of 25 the Weld County Subdivision Ordinance as follows: This 4 940322 1 property is zoned A (Agriculture) . The Agriculture Zone 2 District was established to maintain and preserve the 3 agriculture base of the county. This proposal will take 25 4 acres of irrigated farmland out of production. The 5 Comprehensive Plan attempts to minimize the incompatibilities 6 that occur between agriculture and urban uses, and this 7 request will not only increase incompatible uses, but will 8 make the current farming practices in the area far more 9 difficult. Additionally, the potential for increased 10 interference is possible. 11 2) This proposal is not consistent with agriculture 12 zoned policies and the Weld County Comprehensive Plan. This 13 proposal is located in the A (Agriculture) Zone District and 14 is evaluated under the agriculture goals and policies. A goal 15 of agriculture zoned district is to encourage residential 16 development to locate adjacent to existing incorporated 17 municipalities. This proposal is located approximately one 18 and one-half miles from the city limits of Loveland. However, 19 the City of Loveland does not consider this parcel to be a 20 part of their urban growth boundary. It is the opinion of the 21 Department of Planning Services staff that the approval of 22 this request encourages leap-frog or non-continuous 23 development in a rural area. 24 3) This request does not represent efficient and 25 orderly development, nor does it demonstrate compatibility 5 9403= 1 with existing surrounding land use in terms of agriculture 2 use, scale, density, traffic, dust and noise. The current 3 general use of the surrounding area is agriculture. The scale 4 and density of the proposal far exceeds the current nature of 5 the area. Based on census data, this site will generate 26 6 additional people in this area with an increase of density, 7 noise levels , traffic generated and general overall appearance 8 of this area will change from rural to urban. The soil is 9 mostly Nunn clay loam, 1 to 2 percent slope. This soil has 10 fair to poor potential for urban development. It has moderate 11 to high shrink swell, low strength, and moderate low 12 permeability. These features create problems in dwellings and 13 road construction, cited U.S. Department of Agriculture, page 14 26 . These same concerns have been addressed by the Health 15 Department and CDS Engineering. The Health Department has 16 received additional information to determine, however, that 17 the suitability of the septic system, however, CDS Engineering 18 has stipulated the need to provide geo-technical investigation 19 and engineered foundations for each lot. While clay soils 20 perform poorly for urban development, this soil is also 21 classified as prime farm ground. As such, this ground plays 22 a vital role in the county' s most important natural resource. 23 U.S. Department of Agriculture Soils Conservation Survey 24 Natural Soils Handbook. The conservation plan calls for the 25 preservation and expansion of prime agricultural land. In 6 9403Q2 1 fact, the Comprehensive Plan stipulates that if development is 2 suggested for prime agriculture land, appropriate alternative 3 areas should be sought. John Donnelly, P.E. , contractor for 4 the applicant, has suggested that these two pieces of ground 5 are no longer viable farms due to their size, proximity to 6 other houses, and lack of knowledge of nearby residents . The 7 size of the current parcels are similar in size to other 8 existing surrounding farms . By splitting these parcels into 9 nine lots the applicant will invite even more people and 10 children into the existing farm area, thereby creating the 11 possibility for even more urban and rural conflict. More 12 owners will further increase conflict and confusion regarding 13 the use of the irrigation waters . 14 Staff received numerous objections, both verbally and in 15 writing, in opposition to this request. The major concerns 16 regard compatibility with the surrounding area, character 17 development, potential for interference with agriculture uses, 18 safety issues, and a general concern for protecting the 19 current agricultural lifestyle of the area. This 20 recommendation is based in part upon a review of the 21 application material submitted by the applicant, other 22 relevant information regarding this request, and responses 23 from referral entities . " Do you want me to read the rest? 24 CHAIRMAN WEBSTER: Are there any questions of Monica 25 at this time? Is the applicant here, or their representative, 7 940302 1 this morning? 2 MR. CHILSON: Members of the board, I 'm John 3 Chilson. I 'm an attorney in Loveland, Colorado. I 'm 4 representing the applicants in this proceeding. 5 Preliminarily, this is a minor subdivision regulation pursuant 6 to 4 .5 and Monica refers to 4 . 5 . 9 . We have two sets of 7 Subdivision Ordinances floating around. I think 4 .5 .9 is in 8 reference to the 1992 Subdivision Resolution; 4 .5 . 16 would be 9 the provisions that are to be considered at the county 10 commissioners hearing under the 1993 11 COMMISSIONER HARBERT: I guess I would like 12 clarification, maybe you're going to 13 MS. MIKA: In Weld County Subdivision Ordinance 14 August 10, 1993, which I believe is the most current copy, 15 under Section 4 .5, this talks about what the items that the 16 Planning Commission needs to consider. And because this is 17 their recommendation to you, they would use that section of 18 the Subdivision Ordinance. 19 COMMISSIONER HARBERT: .I guess I have the question 20 of when was this first begun and what ordinances did they 21 follow to begin with? I think we ran into this problem once 22 before. 23 MR. MORRISON: My understanding is the difference in 24 numbers is, that your section that applies directly to the 25 Board of County Commissioners is 4 .5 . 16 . It parallels 4 .5 .9, 8 940312 } 1 so the Planning Commission recommendation then has to be 2 transposed from 9 to 16 , but otherwise the language is 3 identical and the criteria parallel . There have been changes 4 in the subdivision regs , but I don' t think they affect this 5 section between the ' 92 and ' 93 versions . 6 COMMISSIONER HARBERT: So the wording's the same, 7 it' s just the numbering. 8 COMMISSIONER KIRKMEYER: One' s the responsibility of 9 the Planning Commission and one' s the responsibility of the 10 board. 11 MR. MORRISON: Right. 12 MR. CHILSON: So that I will be referring now, in 13 this hearing, to the minor subdivision regulations contained 14 in Section 4 .5 . 16 . 1 through 4 .5 . 16 . 16 of the August 10, 1993, 15 Weld County Subdivision Regulations . First of all, I would 16 like to get some matters clarified and then the record of this 17 proceeding with regard to the status of the submittals and the 18 referrals that are made as a part of the process or procedure 19 under the Weld County Minor Subdivision Regulations. Those 20 are processed and monitored by staff. I have not seen a staff 21 report as such, and would like to know if there has been 22 prepared a staff report on this project for this hearing that 23 is before the county commissioners other than what Ms. Mika 24 read to you as the Planning Commission Resolution. 25 CHAIRMAN WEBSTER: Would you respond to that Monica? 9 940302 1 MS . MIKA: I ' ll try. Inventory of items submitted 2 for consideration are submitted with the Board of County 3 Commissioners packet of information. And what that does is it 4 delineates exactly what letters, correspondence, referral 5 entities, maps, notice of public hearings , case summary 6 sheets, utility advisory committee minutes and so forth, that 7 you will have in your packet. I 'm not exactly sure if that' s 8 what you want, but that ' s what, that's a synopsis of what 9 you' ll find, our inventory. 10 MR. CHILSON: Alright, I 11 COMMISSIONER KIRKMEYER: But the staff did give a 12 recommendation? Do you give a recommendation to the Planning 13 Commission? When you were in front of the Planning Commission 14 you did have a staff recommendation? 15 MS. MIKA: Right. And that's, they 16 COMMISSIONER KIRKMEYER: And that goes to the 17 Planning Commission and then the Planning Commission, that' s 18 the recommendation that the board looks at. 19 MS. MIKA: That' s correct, and they incorporated it, 20 the Planning Commission incorporated it for you guys . 21 MR. CHILSON: My question is, is there before the 22 board for consideration in this public hearing, a staff report 23 on this project? I know there was before the Planning 24 Commissions . My question is, is there one before this board? 25 CHAIRMAN WEBSTER: I would determine that there is. 10 940312 1 Other comments from members of the board? 2 COMMISSIONER KIRKMEYER: We ' re looking at a 3 recommendation from the Planning Commission which incorporates 4 the staff 's recommendation. 5 MR. MORRISON: The record also includes a staff 6 recommendation that was made, so it's in the record. There' s 7 not a direct, further recommendation. 8 MR. CHILSON: Is it the same staff report that was 9 made before the Planning Commission hearing? 10 MR. MORRISON: Yes . 11 MR. CHILSON: Alright. Then it's, so for the 12 record, we have an identical staff report before the Board of 13 County Commissioners that was before the Planning Commission. 14 Am I correct in that, Mr. Morrison? 15 MR. MORRISON: It's contained in the record, but the 16 board is actually acting based on the recommendation of the 17 Planning Commission and not on the staff. But the staff 18 report is in the record. 19 MR. CHILSON: Will it be your opinion that the 20 county commissioners may consider the staff report as opposed 21 to the Planning Commission recommendation? 22 MR. MORRISON: They consider anything that's in the 23 record. 24 MR. CHILSON: I take it, Ms . Mika, that the staff 25 report remains the same today as before the Planning 11 9403' 2 1 Commission without change? 2 COMMISSIONER HARBERT: I guess I would like to refer 3 to the attorney that the proper procedure is for the applicant 4 to address its questions to the board of commissioners . 5 MR. MORRISON: Well, he can address the questions 6 and ask that, I mean, he can lay them out and, in his 7 presentation and ask for the staff to respond. I guess the 8 control of whether, how you direct that be done is up to you. 9 But I think it' s appropriate for him to ask for that 10 information. 11 CHAIRMAN WEBSTER: I think it would be appropriate 12 that he address it to the board and we, in turn, would ask the 13 staff if this is the case, rather than getting into a type of 14 cross-examination of the staff ( inaudible) 15 MR. CHILSON: Am I to understand, Mr. Chairman, that 16 you are directing me not to ask questions of the staff? 17 CHAIRMAN WEBSTER: Not at this time. 18 MR. CHILSON: At any time? Am I going to be 19 permitted to examine and cross-examine your staff 20 representative in this hearing? 21 CHAIRMAN WEBSTER: I 'd have to ask that legal 22 counsel determination on that of what is our procedure in 23 that, but we have not encountered that in the past to my 24 knowledge, that the questions couldn't be directed at the 25 board and should be directed to the staff. 12 940302 1 MR. CHILSON: Let me state for the record, I 2 represent property owners who have very valuable and 3 constitutionally protected property rights at issue before 4 this board. The constitutional requirements of procedural due 5 process as , enunciated by the Colorado and Federal courts , 6 clearly give the applicant the right not only to present 7 evidence, but to cross-examine witnesses who have presented 8 evidence in opposition to the application. I, therefore, am 9 entitled under the constitutional protection of due process of 10 law, to both question your staff affirmatively in terms of 11 putting evidence in this record and to cross-examine your 12 staff as to evidence that your staff has given against us . 13 Now, if you direct me not to do that, I am bound by your 14 determination, but I will submit to you that you are violating 15 my clients ' constitutionally protected rights to due process 16 of law and I will abide by your regulation, your ruling, but 17 you're going to have to deny me that right or I will proceed. 18 MR. MORRISON: May I ask a question of him? Do you 19 have a particular case that indicates that in an application 20 for a zone, or for a subdivision or similar kind of land use 21 decision, that there's a right to cross-examine? Is there a 22 case on point? 23 MR. CHILSON: There is a case on point. It is not 24 in zoning. It is in administrative and quasi-judicial 25 proceedings . It is the case of Weld County Kirby Company vs . 13 940302 1 The Industrial Commission, and you will find a review of all 2 quasi-judicial proceedings, which this is , provides that 3 procedural due process, constitutional protection guarantees 4 to a person who has constitutionally protected rights as 5 opposed to non-constitutionally protected rights, it 6 guarantees to that person not only the right to use witnesses 7 on their behalf in a proceeding, but to cross-examine those 8 who present evidence against them. And that's what I intend 9 to do unless instructed by the Chair that I am prohibited. I 10 do intend to question your staff. 11 CHAIRMAN WEBSTER: It's been our procedure, and I 12 believe Mr. Chilson you've been through this before to 13 understand, that we first ask staff to present the case. We 14 then ask the applicant or their representative to make their 15 comments in defense of their application. And that point, 16 when those two parties have finished in their presentation, we 17 ask the public if they want to speak for or against this 18 application and we listen to their testimony and at that time, 19 after that is completed, we come back to you as an applicant 20 to answer the issues that have been brought up by those people 21 speaking. And that's been our procedure from the time that, 22 whether you call it short time or not that I 've been 23 Commissioner, and that is the format that I would like to 24 follow. And for you to be able to get into a cross- 25 examination is the question of whether you can not only cross- 14 940392 1 examine the staff, but the people that made the testimony, or 2 the comments in their testimony. That, in our hearing I 3 think, has been disallowed in the past and that' s the way that 4 I would like to rule on it at this time. I think you have an 5 adequate time to answer their concerns in your way as you 6 listen to them, make your presentation, and then at that time 7 the board will ask you for further comment as well as staff. 8 But at that time testimony is then, as soon as those people 9 have all spoken for or against the applicant, as soon as that 10 point has been made and your rebuttal to those questions, at 11 that time we will make a consideration. Is that clear, or am 12 I not making it clear? 13 MR. CHILSON: Well I think you're clear, Mr. 14 Chairman, but just simply to make it absolutely clear. If I 15 understand it correctly, your are instructing me that your 16 procedure prevents me from affirmatively questioning Mrs . 17 Mika, your Planning staff representative, who has read to you 18 the Planning Commission report. With regard to the contents 19 of the file, with regard to the regulations at issue, you are 20 instructing me that I cannot question her with regard to those 21 items, is that correct? 22 MR. MORRISON: Mr. Chairman? 23 CHAIRMAN WEBSTER: Yes . 24 MR. MORRISON: I think part of what you have 25 discussed involves the distinction BETWEEN questioning the 15 9.4032 1 staff and the presentation and requesting answers be provided 2 by the staff versus the more formal cross-examination directly 3 directed at the staff. I believe questions of the staff, 4 questions of other people who have testified are not 5 inappropriate, but the line is between questioning the staff, 6 asking for answers from the staff versus formal court-like 7 cross-examination and I would recommend to you that you not 8 preclude questions to be directed at witnesses by the 9 applicant or other witnesses . I think that would not be 10 consistent. 11 COMMISSIONER BAXTER: Mr. Chairman, could I ask a 12 clarifying question? I would like to ask counsel for the 13 applicant, do you feel that you cannot arrive at what you need 14 to arrive at by asking questions about the staff 's report of 15 us and having us ask those questions of staff? That is not 16 going to accomplish what you want to accomplish? 17 MR. CHILSON: That' s correct. You're members of the 18 Board of County Commissioners. I can't ask you questions . 19 You're not under examination, nor are you allowed to give 20 evidence in this case. You're to be the impartial board that 21 decides this matter. It's totally improper for me to ask you 22 questions concerning this application. I am entitled, 23 representing people with constitutionally protected rights at 24 issue in this hearing, to cross-examine witnesses who oppose 25, my client's application. The staff opposes my client's 16 940392 1 application. I am also entitled to cross-examine witnesses 2 from the audience who step forward here and speak. I 'm 3 entitled to cross-examine them on the record. Your staff is 4 a paid, public employee. My client' s pay their salaries . All 5 of the information in the staff file is public information. 6 If you have some reason you wish to shield your staff from 7 giving testimony favorable to the applicant to this case, then 8 I cannot contravene your procedure. I will tell you, you are 9 the only board that I have ever been before which is going to 10 tell me I can't do this . I have never, ever been prohibited 11 from cross-examining staff or other witnesses in any quasi- 12 judicial proceeding for zoning or subdivision in my career, 13 and that spans 15 years . Now, if you want to tell me i can't, 14 I ' ll have to abide by that. But I certainly intend to do so 15 if you permit me. 16 CHAIRMAN WEBSTER: I 'd like to, I have opinions from 17 my fellow board members as to whether I am correct in setting 18 the procedure in the way that I described it or we abide with 19 the wishes of the legal counsel who wishes to cross-examine 20 our staff people directly as well as witnesses. 21 COMMISSIONER BAXTER: You don't want to be out there 22 by yourself, Bill? 23 CHAIRMAN WEBSTER: That's why they elected five of 24 us, not one of us . 25 COMMISSIONER BAXTER: I guess I have a, sorry to • 17 940302 1 keep talking, but I think I need a clarifying question from 2 our legal staff, once we open the door and say you can do 3 that, there' s no point, or any, I mean it goes to the 4 conclusion there' s no point we can stop anything. 5 MR. MORRISON: No, that' s not, that wouldn't be the 6 case on any of the evidence. It still has to be relevant to 7 the issues before you and not repetitive and, again, we don' t 8 use a formal evidentiary rules, it' s basically what evidence 9 is useful in a business sense in making a decision. So 10 opening it up doesn' t mean that, as a board, you cannot 11 exercise some control over the scope of the examination. 12 COMMISSIONER BAXTER: I was not only concerned with 13 the amount of evidence, but the procedure. If our Chairman 14 deems that this behavior, of the way it' s asked, if it goes 15 beyond some point of decorum or something, we can intervene? 16 MR. MORRISON: Certainly. Certainly, again, its are 17 the questions intended to elicit evidence, or you can control 18 that it not go beyond the gathering of evidence and into 19 something where you are intimidating a witness or otherwise 20 not following the goal of obtaining evidence. 21 MRS. KIRKMEYER: Mr. Chairman, I really don't have 22 a problem with anyone asking our staff or anyone questions . 23 I mean I think we've tried to keep it informal where we do get 24 a lot of information flowing back and forth, and I think as 25 long as the applicant's attorney wishes to elicit evidence, as 18 9403J2 1 our attorney suggested, and not harass or try to intimidate 2 people, I don't have a problem with him asking questions . 3 CHAIRMAN WEBSTER: Thank you. That' s what I wanted 4 to hear. 5 COMMISSIONER BAXTER: I would concur that as long as 6 we have control over what' s going on. 7 CHAIRMAN WEBSTER: I would concur with that, but I 8 want to make it clear that I want you to present it in a, 9 without an intimidating manner or harassment manner to the 10 staff because these people are gatherers of information and 11 cannot editorialize on the situation and shouldn't on the 12 properties involved, as to what they, and they've been briefed 13 on that subject and so therefore, I will determine that you 14 will be able to do that, Mr. Chilson. 15 MR. CHILSON: Thank you, Mr. Chairman, and I assure 16 you that I will be a paragon of decorum. 17 CHAIRMAN WEBSTER: Otherwise, I ' ll have to get out 18 my gavel . 19 MR. CHILSON: You bet. As well you should. I do 20 not stand for the proposition that any attorney has the right 21 to come in here and conduct a courtroom cross-examination in 22 order to intimidate nor to harass . That has never been my 23 purpose, but basically to present evidence on behalf of my 24 clients . So, Mrs. Mika, with the Chairman's ruling, there 25 were referrals on this minor subdivision application that were 19 940302 1 sent out to all the designated referral agencies under the 2 regulations, were there not? 3 MS. MIKA: Yes . 4 MR. CHILSON: Did you receive back any referral 5 agency objection or opposition to this application? 6 MS . MIKA: The original application? Yes sir, there 7 were. The State of Colorado, in their letter of December 20, 8 1993 . And the Department of Transportation, there were some 9 concerns . 10 MR. CHILSON: Have those concerns been addressed? 11 MS. MIKA: Yes, sir, they have. 12 MR. CHILSON: Alright. Is there any pending 13 objection from the State of Colorado Department of Highways . 14 MS. MIKA: No, sir, nor did I say there were. 15 MR. CHILSON: Alright. No, I 'm simply trying to 16 find out if all, perhaps we can shorten this . Would it be 17 true to say that all of the referral agencies to whom this 18 minor subdivision proposal was submitted, are now on record 19 with you as either not responding at all or having no 20 objection to the minor subdivision applications? 21 MS. MIKA: Well, if I can answer your first question 22 before I get to the second one. 23 MR. CHILSON: Sure. 24 MS. MIKA: You asked me to delineate a list of 25 people that were, had some concerns. I referred to a letter 20 940302 1 dated December 13, 1993 . This letter is from the City of 2 Loveland and I think it' s important to read this to you. It' s 3 "RE: Mountain View Estates #1 and #2 County Referral . This 4 letter is to inform you that the above-mentioned products are 5 not within the City of Loveland' s urban growth boundaries; 6 consequently, the Loveland Planning staff will not be 7 providing comments on this project. " And I just think it 's 8 important, you asked me a question and didn't let me answer 9 that there were referral agencies that had some concerns . In 10 addition, the Health Department had some concerns about the 11 septic system. And yes, since the time that it was presented 12 to the Planning Commission, these concerns were taken care of, 13 but that's the general idea for having referral agencies is 14 you ask them what the problems are and then the problems are 15 taken care of prior to presenting it to the board. 16 MR. CHILSON: So, it' s true that as of the record 17 stands today for the Board of County Commissioners hearing, 18 there are no referral agencies who stand in opposition to this 19 proposal, are there? 20 COMMISSIONER HARBERT: I believe, if I might 21 interject, there were, I did see some concerns from the school 22 district and I don't know if we can 23 MS. MIKA: That's correct. 24 COMMISSIONER HARBERT: I don't know if we can take 25 care of those now or if we have to wait until 21 940302 1 MR. CHILSON: There is a letter from the Thompson 2 Valley School District that should be in your packets that 3 indicates no opposition to the project and states that they 4 wish fees in lieu of dedication of land for this development. 5 MS. MIKA: Excuse me, and that they also request 6 that there be walkways within the development. 7 MR. CHILSON: Right. And that there be a little 8 shelter house built containing adequate room for at least two 9 people. Is that correct? 10 MS . MIKA: That' s correct. 11 MR. CHILSON: Alright. Basically, the status of the 12 record today, is, isn't it true Mrs. Mika, is that there is no 13 referral agency opposing this request. 14 MS. MIKA: I 'm not sure that I 'd use the word 15 'opposing' . I still think that's 16 MR. CHILSON: Excuse me, that 's my word. My 17 question is, is there any referral agency opposing the request 18 at this point in time? Now if you can't answer that 19 MS. MIKA: Well, since that' s you're wording, I 20 guess I ' ll say there are some agencies that have some 21 concerns, but flat out opposition, no. 22 MR. CHILSON: Okay. Other than the issues raised by 23 the minor subdivision regulations with respect to the 24 Comprehensive Plan, the consistency with the Comprehensive 25 Plan, and specifically Section 4 .5 . 16 . 1. Okay, other than 22 940302 1 that regulation, setting that one aside, are there any other 2 regulations applicable to the minor subdivision proposal 3 before the Board of County Commissioners? 4 MS. MIKA: Yes, sir, there are. 5 MR. CHILSON: Now, I, excuse 6 MS. MIKA: Wasn't that a question? 7 MR. CHILSON: I hadn't gotten my question completed, 8 Mrs. Mika. 9 MS. MIKA: Well, fine. 10 MR. CHILSON: Okay, I mean, sure there are other 11 regulations . My question is, other than the Comprehensive 12 Plan regulation, are there any other regulations, minor 13 subdivision regulations which in staff 's opinion, there is, 14 that have not been met -by the applicant? And if so, would you 15 state the factual basis for each one of those. 16 MS. MIKA: Sure will . Page 27, and it's 4 .5 . 16 .5, 17 and that's the area that deals with soil conditions . In 18 addition to that, there's also, I 'm going backwards, I used 19 the Planning Commission, I believe it's 4 .5. 17 that deals with 20 the minor subdivision will not cause an unreasonable burden on 21 the ability of local governments or districts to provide fire, 22 police protection and other services. That's in question. 23 MR. CHILSON: Excuse me. With the Chairman' s 24 permission, my copy of the 1993 Weld County Subdivision 25 Regulations does not contain a 4 .5. 16 . 17 . May I have 23 940392 1 permission to confer with Mrs . Mika so that I can see what 2 she' s talking about? 3 MS. MIKA: That' s 4 . 5 . 17 .16 . Hold on, I don' t know 4 if this is the correct citation. 5 MR. CHILSON: Perhaps for the record, may I try to 6 clarify. Mrs . Mika, is 4 .5 . 16 . 15 followed by a mistaken 7 numeration of the next regulation? It shows 4 .5 . 17 . 16 and 17 8 and 16 should be transposed? That' s the only way I can make 9 sense of it. 10 MS. MIKA: That's the way I don't know, I understand 11 it to be part of that section. 12 MR. CHILSON: Then we should be reading what is 13 shown as 4 .5 . 17 . 16 as 4 .5 . 16 . 17 on page 28 of the minor 14 subdivision regulations . Okay. Now, with that clarification, 15 would you please continue? 16 MS. MIKA: Those are the three areas . I also can 17 refer to a letter that was written to the Larson's that 18 delineated the same concerns and they asked staff this once 19 another time. 20 COMMISSIONER KIRKMEYER: Is that letter in our 21 packet? 22 MS. MIKA: It should be. 23 MR. CHILSON: Now, would you identify that letter by 24 author and date please. 25 MS . MIKA: February 3, 1994 . 24 940302 1 MR. CHILSON: From whom to whom? 2 MS. MIKA: To Mr. and Mrs . Larson from me, and it 's 3 a follow-up letter related to a letter dated January 21, 1994 , 4 from the Larson' s to me which is in relationship to another 5 letter that' s dated February 13, 1994, from a letter from the 6 Larson's to me. 7 CHAIRMAN WEBSTER: Will you move on, Mr. Chilson as 8 quickly as possible? 9 MR. CHILSON: Yes . Are there any local governments 10 that have jurisdiction over Larson's property other than Weld 11 County, to your knowledge? 12 COMMISSIONER HALL: Is that a legal opinion that 13 you're asking for our Planning staff? 14 MR. CHILSON: Of course not, of course not. Your 15 Planning staff knows what local government is . I 'm asking a 16 simple question, it's not a legal opinion. Nobody can give a 17 legal opinion here. 18 COMMISSIONER KIRKMEYER: It would just be your 19 opinion. 20 MR. CHILSON: To your knowledge. 21 MS. MIKA: Well, it's definitely within the 22 jurisdiction of Weld County. 23 MR. CHILSON: Exactly. Other than Weld County, are 24 there any, are there any special improvement districts for 25 example? 25 9403C2 1 MS. MIKA: No. 2 MR. CHILSON: Alright. Did all of the utility 3 companies serving the area provide commitments to serve the 4 property. 5 MS. MIKA: Yes . They had some concerns initially, 6 but those were taken care of . 7 MR. CHILSON: But they did commit to serve, did they 8 not? 9 MS. MIKA: Yes . 10 MR. CHILSON: Okay. Did the applicable fire 11 district indicate an ability to serve? 12 MS. MIKA: Yes sir, and we wouldn't be here in front 13 the county commissioners had those standards not been met. 14 MR. CHILSON: Alright, so they have been met. 15 MS. MIKA: Yes . 16 MR. CHILSON: Okay, thank you. There is no 17 requirement in the Weld County Minor Subdivision Regulations 18 applicable to the Larson's proposal that any rezoning take 19 place, is that correct? 20 MS . MIKA: That' s correct. 21 MR. CHILSON: Okay. Have the Weld County Minor 22 Subdivision Regulations been amended after the Larson's filed 23 their applications for Mountain View #1 and #2? 24 MS. MIKA: Are you talking about at the sketch plan 25 level? 26 940392 1 MR. CHILSON: Yes, at the sketch plan level and also 2 requiring now, currently anyone who files for a minor 3 subdivision regulation on an A (Agricultural) Zone land must 4 seek a rezoning to E (Estate) ? 5 MS . MIKA: Just a second, I ' ll answer the first part 6 of your question but I have to go grab the file. 7 MR. CHILSON: And by the way, Mr. Chairman, that ' s 8 my next to the last question. 9 CHAIRMAN WEBSTER: Thank you. 10 MR. CHILSON: So we're getting right through it. 11 MS . MIKA: Okay, I can give you the dates that these 12 applications for sketch plan were submitted to the department; 13 however, I don't, Mr. Morrison will have to answer the last 14 part of your question as to how many times the subdivision 15 ordinance has been amended. 16 MR. CHILSON: No, my question is, has it been 17 amended so that now any application for a minor subdivision on 18 land that is zoned A-Agriculture must be preceded by a 19 rezoning application to amend or to rezone the property to 20 E (Estate) . And I ' ll ask Mr. Morrison since you've referred 21 to him. 22 CHAIRMAN WEBSTER: Yes, Lee. 23 MR. MORRISON: The subdivision regulations, to my 24 knowledge, weren't amended. The amendments were to the Zoning 25 Ordinance, Section 31 and the Ordinance 89-Y on March 8 of 27 940r2 1 1993 deleted a section which allowed for minor subdivisions in 2 the agricultural zone. The effect of that was that land zoned 3 agriculturally then would have to be rezoned prior to using a 4 minor subdivision procedure. The change that allowed that was 5 in December 29 of 1992 where the provisions was put into the 6 Zoning Ordinance under Ordinance 89-X. 7 MR. CHILSON: So that anyone subsequent now to the 8 Larson's seeking a minor subdivision has to rezone to 9 E (Estate) , is that correct? 10 MR. MORRISON: Yes . 11 MR. CHILSON: That' s all the questions I have of 12 Mrs . Mika and I would offer the board any opportunity they 13 want to question Mrs . Mika or me on any of those things . 14 CHAIRMAN WEBSTER: Are there questions of Mr. 15 Chilson at this time? The board? 16 MR. CHILSON: Mrs. Larson will make the presentation 17 on the factual issues with respect to the application. 18 CHAIRMAN WEBSTER: We, before we get into that, we 19 have a luncheon commitment. I suppose about five to twelve, 20 so that's only leaving about 15 minutes at the most for her 21 presentation, but of course if she's willing to continue we 22 will break at that time, recess and reconvene, I think 1:30 we 23 could get back at that time. So, if that' s permissible to 24 everybody. 25 MR. CHILSON: You would like us to go ahead and 28 94030; 1 start now and then we will break 2 CHAIRMAN WEBSTER: I 'd like to use every minute we 3 can, yes . 4 MR. CHILSON: You bet. Then I 'd ask Mrs . Larson to 5 begin her presentation. 6 DONNA LARSON: Has already been given to Mr. 7 Morrison as Exhibit "G" 8 MS . MIKA: Mrs . Larson, is that the same, okay, I 9 think that they have, you should maybe already have a copy of 10 that, yeah. 11 CHAIRMAN WEBSTER: It 's the other side that I 'm 12 looking at. 13 MS. LARSON: It's identical. It 's the one we gave 14 to the Planning Commission. I just didn't know if they 15 brought them over to you as county commissioners or not. So 16 there is a copy. I 'm putting just the overlay again on the 17 overhead. 18 CHAIRMAN WEBSTER: I 'm sorry, for the record, we 19 need your name and address . I almost forgot that, I 'm sorry. 20 MS. LARSON: I apologize. I 'm Donna Larson. I live 21 at 925 North Countyline Road in Berthoud. Again, this overlay 22 is the same overlay that's on your aerial photographs . It 23 just will be easier for me to point to things on here so that 24 you can refer to them on your exhibit. We are proposing 25 Mountain View Estates #1 and #2 Minor Subdivisions because we 29 94037!2 1 do believe in the rural lifestyle, and because we do believe 2 this is the highest and best use for this property. Our two 3 and a half acre lot size was originally recommended by a 4 member of Weld County Planning staff as the size most 5 affordable and maintainable by those with other jobs, as well 6 as the most appropriate because of this particular location 7 within an urban growth boundary area and the availability of 8 services . To some, two and a half acres represents an urban- 9 sized lot. To others, two and a half acres represents the 10 freedom of a rural acreage. We are trying to create, and I 11 quote Justice Douglas as quoted in your Weld County 12 Comprehensive Plan, "A quiet place where yards are wide, 13 people few, and motor vehicles restricted. A zone where 14 family values, youth values and the blessings of quiet 15 seclusion and clean air make the area sanctuary of people. " 16 We are requesting the minor subdivision of these parcels 17 because while this area used to be an 80-acre economically 18 viable farm, it was broken up into primarily rural residential 19 lots in the early 1970 ' s and is no longer economically viable 20 for us to farm. We acquired this narrow 25-acre strip in 1970 21 and again, what we acquired were both, where you see the 22 dotted lines is the 25-acre strip. We have actively and 23 conscientiously kept it farm for twenty years . We currently 24 farm over 5,000 acres and our primary source of income is from 25 agricultural production. We operate some farms through custom 30 940392 1 farming techniques , some by sharecropping, and some we do the 2 labor ourselves . Renting this piece to nearby farmers has not 3 proved to be economically advantageous , and for several years 4 we have farmed it ourselves . The closest we came in terms of 5 renting it out, we rented it to a seed development company 6 that came close to being economically advantageous, but they 7 refused to farm it or to take it after one year because of the 8 surrounding residential use. This 25-acre strip takes us an 9 inordinate amount of time to irrigate, move equipment to get 10 back and forth to perform operations because we are not close 11 to this piece of property with our home farm, and because we 12 are surrounded by residential use it is not expedient to farm. 13 We applied for and received a recorded exemption in 1974 14 dividing the property in two parcels, but only recently has 15 the market reached a point where we felt it would be feasible 16 to apply for minor subdivision of each parcel in order to 17 properly utilize the available services and sell this as rural 18 residential estates so that we can re-invest in crop ground. 19 In contrast, not one resident of the lots comprising this 80- 20 acre farm receive their primary income from agriculture. Each 21 one has an urban job, but their acreage provides them the 22 opportunity to enjoy a rural lifestyle. We find that the 23 opposition to these minor subdivisions is mainly from those 24 who have previously purchased small rural lots but seek to 25 protect more than their space by restricting similar use on 31 9403"2 1 the property surrounding them. We have met the requirements 2 of Section 4 .5 . 9 of the Weld County Subdivision Ordinance 3 which would be for the Planning Commission, and now becomes 4 Section 4 .5 . 16 with reference to requirements to be met for 5 the Board of County Commissioners . I will address the points 6 brought up in the Planning staff 's letter and the Planning 7 Commission' s resolution of recommendation for denial dated 8 January 18, 1994 . Then, I will describe section by section 9 how we meet your requirements . 10 The letter from the Planning staff states that the 11 current general use of the surrounding area is agricultural . 12 We disagree with respect to the immediate surrounding area. 13 It is rural residential and agricultural. Mountain View 14 Estates #1 and #2 are in the middle of a cluster of homes. 15 The H's that you see on the overhead are home sites and, 16 actually people living in homes . You' ll notice the cluster of 17 homes around there; I believe there' s 14 if I remember right 18 in the immediate surrounding area. While zoning remains 19 agricultural, the tax roles show the adjoining properties 20 belonging to the Kuehl ' s, which would be this one, to the 21 McEntees, which would be this one, and to the Franks, which 22 would be this one, are assessed and taxed as residential 23 property. I spoke with someone in the Assessor's Office who 24 handles agricultural land and she said they used to establish 25 residential classification in agricultural areas based upon 32 9403'g2 1 size alone. But they now visit the site and determine the 2 primary use, regardless of size, and assess it as such. The 3 last update was done in July of 1993 . The use proposed by the 4 minor subdivisions forming nine lots will be as agricultural 5 as the current use of these surrounding properties . The 6 property boundary actually touching cropland is one-quarter 7 mile long on the west side of the proposed lots in Mountain 8 View Estates #2 . That would be from here to here. Can you 9 see with my finger? I can' t look at the overhead and that at 10 the same time, and if I 'm confusing you, I ' ll use a pen. The 11 impact of that stretch is minimized because it borders the 12 backside of the proposed lots and the cropland will not be 13 close to the majority of the additional traffic and use 14 created by these five lots. The Main Home Supply Ditch 15 buffers interference to the farms south of the ditch because 16 the size of the ditch makes the cropland inaccessible. The 17 ditch itself will be protected by a fence installed along the 18 easement on Lot 5 in Mountain View Estates #2 and we have 19 added conditions to the covenants as requested by the Home 20 Supply Board to protect the ditch from inappropriate activity. 21 We have incurred minor problems typical to being situated in 22 the midst of residential land use. We have incurred minor 23 vandalism to our irrigation equipment, had loose horses in our 24 fields, and we are concerned with large equipment working the 25 field because children and pets tend to play in our field. 33 9403"2 1 However, the cropland that surrounds these nine home sites is 2 buffered. The cropland that surrounds us, we have a buffer of 3 either residential homes, a county road, a state highway, the 4 Home Supply Main Ditch, all surround our property and buffer 5 us to the actual cropland that exists . We just happen to be 6 in the middle of residential use. The Planning staff 's letter 7 objects to the type of soils involved being taken out of 8 agricultural production. I assume they are not considering 9 pastures to be agriculturally productive, because that is what 10 our proposals are geared to. We want you to understand that 11 row cropping such as corn has ceased, regardless of whether 12 this minor subdivision is approved or not. We have planted 13 the entire acreage to a mixture of alfalfa and dryland pasture 14 grasses . Eventually the grass will take over and the area 15 will be pasture, whether it's two and a half acre lots or the 16 ten and fifteen acre lots that currently exist. I would like 17 to point out that the Big Thompson Soil Conservation District 18 has responded to our application by stating that they find no 19 conflict with their interests . 20 We disagree with Planning staff's statement that 21 this development will make current farming practices in the 22 area far more difficult. With so little ground touching 23 cropland and the only access road entering a state highway, it 24 is difficult to understand how the farmers ' operations will 25 become far more difficult. Agricultural operations are 34 940302 1 currently impacted by the existing cluster of residential use 2 and the main irrigation supply ditches . But we believe the 3 location of these nine home sites will not significantly alter 4 that existing impact. A prime example is the risk of aerially 5 spraying the 25-acre strip as it now exists because of the 6 surrounding residential use. Please notice that Mountain View 7 Estates #1 and #2 do not spread out further into cropland. 8 They are primarily bordered by existing residential use and 9 will not further impact the ability or inability to aerially 10 spray nearby cropland. All land owners in the original 80- 11 acre farm except one share the single supply, Home Supply 12 irrigation water outlet. We currently have the acreage 13 planted to alfalfa and dryland grasses and because of the 14 recent wet summers and because we prefer to force new alfalfa 15 to form deep roots, we have not irrigated this parcel for two 16 years . Once the dryland grasses take over, irrigation will 17 not be critical and may not even be necessary on a annual 18 basis, versus the high demand and crucial timing for corn or 19 other row crops . We feel the transition of this final piece 20 to pasture reduces the competition for the outlet mainly 21 because the timing becomes far less critical and the need is 22 much less . The use of the outlet would be coordinated by the 23 homeowners association, not each individual home owner. The 24 number of entities sharing the outlet would remain, then at 25 five. Steve Olander who lives on the north side of the 35 940302 1 highway, over in here, is concerned about non-point source 2 pollution such as nitrogen leeching and sediment runoff . Non- 3 point source pollution is mainly created by row crops such as 4 corn. Putting this property into alfalfa and grasses 5 eliminates the chemicals required to raise corn and provides 6 year-round ground cover to control sediment runoff . Pastures 7 in these minor subdivisions will actually control the non- 8 point source pollution that he is concerned about. 9 The question of compatible density and/or lot sized 10 is questioned, again although the two and a half acre size was 11 originally proposed by a member of the staff . You will notice 12 on the overlay we have supplied for the photo that our lots 13 are wider and larger than the one-acre lot which is here, it' s 14 a daycare center, it's over on the west. It's wider, our 15 lots, excuse me, are wider than the Franks ' on the west, which 16 would be this one. They are comparable to the width of the 17 Kuehl 's and the McEntee' s on the east, which would be these 18 two. The three residences across the road and the two on the 19 west are closer together than any of our home sites will be. 20 Notice the cluster of seven homes on the north in less area 21 than seven of our home sites, which I 'm referring to these 22 down here. This diagram was presented in Kuehl 's letter of 23 protest and displays deeded acreages of the surrounding 24 property, but we believe it distorts the picture of this area 25 because it does not present the usable acres. We have added 36 940302 1 the appropriate area lakes and homes to Mr. Kuehl ' s map, and 2 you' ll notice that the Home Supply Ditch and easement run 3 across, actually the back of Kuehl 's and our property. It 4 does not border the property as shown in his diagram. And the 5 diagram shows major cropland where there is currently 6 residential use and a small lake. The acreages we have 7 inserted are the acres of ground as assessed for tax purposes, 8 which usually means above water, but do include the ditch 9 easements. As you can see, our 15-acre parcel which would be 10 on the back, would be this one, is larger than any piece of 11 usable land. The 10-acre parcel on the front is larger than 12 all but Mr. Stark's 11.5 acres . We disagree that we must 13 maintain our 10 and 15-acre size in order to be compatible. 14 An attorney has drafted strict, enforceable 15 covenants, patterned under a new law which went into effect in 16 1992 called the Colorado Ownership Interest Act. We are 17 technically exempt from the mandatory provisions because our 18 minor subdivisions are under ten units. However, he included 19 the provisions of the Act because they provide for an 20 ownership association to have the ability to force people to 21 pay their prorata share to maintain the common elements which 22 would basically be the road and easements for drainage and 23 utilities . These covenants were reviewed by Lee Morrison, the 24 Assistant County Attorney, and he stated that the covenants 25 appear to have been well researched and drafted. We want this 37 94032 . 1 to be a prime example of responsible rural development and we 2 believe these covenants will help create that atmosphere. 3 The Kuehl 's, which live in the back, submitted a 4 drawing to us showing their preference for a total of four 5 lots instead of nine; however, the road improvements and 6 utilities alone have been professionally estimated to cost 7 approximately $160, 000, or approximately $18,00 per lot. The 8 improvement requirements would change very little if we had 9 proposed four lots and we would then have $40, 000 in each lot, 10 and that simply would not be economically feasible. We 11 believe that one of the basic precepts of good planning is to 12 allow growth in the urban growth boundary area where services 13 are currently available. The residential policies of the 14 Comprehensive Plan state that Weld County shall encourage a 15 compact form of urban development by directing residential 16 growth to urban growth boundary areas and to those areas where 17 urban services are already available before committing 18 alternate areas to residential use. We believe we have met 19 the intent of the Weld County Comprehensive Plan and therefore 20 satisfy Section 4 .5. 16 . 1 . 21 The Comprehensive Plan also states that the lowest 22 cost to taxpayers is for growth to occur in the urban growth 23 boundary areas . Weld County has defined this as a three-mile 24 radius around a municipality. The fact that these parcels are 25 within three miles of Loveland means that we are not leap- 38 940392 1 frogging development. Your recent approval of the Enid minor 2 subdivision which is two miles west of these parcels, but in 3 Weld County and approximately the same distance from Loveland, 4 was based on being within a three-mile radius of Loveland and 5 in an urban growth boundary area as defined by Weld County. 6 We believe this recent approval sets a precedent for our 7 inclusion in an urban growth boundary area and satisfies 8 4 .5 . 16 .2 . The wording in the Planning staff ' s letter is 9 somewhat ambiguous . It states that the goal of the 10 Agricultural Zone District is to encourage residential 11 development to located adjacent to existing incorporated 12 municipalities, but ignores the fact that the Comprehensive 13 Plan accomplishes that goal by defining a policy for an urban 14 growth boundary area, not by deciding whether a subdivision 15 touches a municipal boundary. The staff's letter never states 16 that our proposal constitutes leap-frog development, instead 17 it states that approval of our request encourages leap-frog or 18 non-contiguous development in a rural location. An urban 19 growth boundary area is the appropriate area for minor 20 subdivisions because they provide for a logical transition 21 between urban use and large farms. Our application contains 22 two letters from the Little Thompson Water District, a one- 23 year commitment dated February 6, 1993, and a one-year 24 extension letter dated November 9, 1993, for both domestic 25 water supply and fire protection from the existing 10-inch 39 9403^2 1 water main along Highway 60 . We will be installing four fire 2 hydrants on the access road back into our land providing fire 3 protection to the area that does not exist at this point. 4 CHAIRMAN WEBSTER: Mrs . Larson, could you find a 5 point where maybe we could break here somewhere? 6 MS . LARSON: Oh, I 'm sorry. 7 CHAIRMAN WEBSTER: That's alright. 8 MS. LARSON: The only thing I could suggest is I 9 just finish when we come back. 10 CHAIRMAN WEBSTER: We quit with the fire hydrants . 11 Can everybody remember that? 12 MS. LARSON: We quit with the fire hydrants . I ' ll 13 put a line. 14 CHAIRMAN WEBSTER: Thank you. I 'm sorry that we 15 have to break for our lunch meeting. 16 (A RECESS WAS TAKEN) 17 CHAIRMAN WEBSTER: We will reconvene the hearing at 18 the point of fire hydrants, I 've been so notified. Let the 19 record show that all five commissioners are in attendance and 20 Mrs . Larson can continue. 21 MS. LARSON: Do you want me to repeat my name or 22 CHAIRMAN WEBSTER: It' s not necessary. I think I 23 identified who you are. 24 MS. LARSON: I 'm still Donna Larson speaking. 25 COMMISSIONER HARBERT: It's still Donna Larson, 40 940392 1 lunch didn' t change that. 2 MS. LARSON: I ' ll start with our application, which 3 is the same paragraph I was in the middle of. Our application 4 contains two letters from the Little Thompson Water District, 5 a one-year commitment dated February 6, 1993, and a one-year 6 extension letter dated November 9, 1993, for both domestic 7 water supply and fire protection from the existing 10-inch 8 water main along Highway 60 . We will be installing four fire 9 hydrants and those are shown on Exhibit "G" as these little 10 V-Type marks that are on your diagram, which complies with 11 Berthoud Fire District 's recommendations . We will be 12 providing fire protection in the area that does not exist at 13 this point. Hoses from our fire hydrants will be able to 14 serve existing homes which would be the Starks ' , which would 15 be this one, the McEntee's, the Kuehl ' s, the Franks ' , the two 16 across the road, possibly around say, DuMott's, although we're 17 not sure if the hoses, the hoses have to be strung from trucks 18 so I 'm not sure if the access road will allow that. We will 19 also have tanker truck availability from the fire hydrants 20 which will serve then the daycare center and their surrounding 21 home sites . The commitment from Little Thompson Water 22 District satisfies the requirements of Section 4 .5. 16 . 3 . 23 In the Planning Department's files is a copy of the 24 December 16, 1993 percolation test results and septic system 25 recommendations for Mountain View Estates prepared by CDS 41 9403'!2 1 Engineering. The soils are well-suited for individual septic 2 systems . We have noticed several protest letters expressing 3 concern regarding pollution of the small lake to the east, 4 which would be this lake, from both drainage and septic 5 systems . Drainage from this property flows basically to the 6 north and then follows Highway 60 east and west, although 7 primarily east. At this point, the drainage is below the 8 elevation of the lake and not a problem to the lake. The 9 access road into these two minor subdivisions will follow the 10 east property line, in other words, right up this line. That 11 will add a further barrier to any runoff to the east. The 12 lake is more in danger of pollution from non-point source 13 pollution of chemicals and sediment from cattle lots and row 14 crops such as corn rather than ground covered by pasture such 15 as these minor subdivisions will become. The septic systems 16 in Mountain View #1 and #2 would not be a threat because of 17 proper design, and any danger from septic tanks could possibly 18 come from the four existing septic systems that surround the 19 lake, but only if they were not properly designed, and I have 20 no idea. The key here, is that an engineering firm has found 21 the site to be suitable for septic systems that will comply 22 with state and local laws and regulations and that satisfies 23 Section 4 .5 . 16 .4 . 24 A complete geological report was submitted which 25 concluded that the soils do not present any hazardous 42 940392 1 conditions, but will require engineered foundations . The 2 Colorado Geological Service found the only geological problems 3 were the potential for swelling soils, localized high ground 4 water and radon accumulation. They stated all of these 5 concerns could be adequately addressed by proper design and 6 construction techniques as were recommended by CDS 7 Engineering. My husband, Ivar, is a Registered Professional 8 Engineer and experienced with residential and commercial 9 construction. He is well aware of the soil characteristics of 10 the area, he' s well aware of footing and foundation design and 11 implications for construction. The minor expansive 12 characteristics of these soils are typical in this whole area 13 and excellent for residential development. They accommodate 14 standard spread footing design and will not require costly 15 caissons or engineered pad footings. The soils data requires 16 limits of 1500 pounds per square foot maximum and 500 pounds 17 per square foot minimum foundation loading which is ideal for 18 construction. These reports and opinions satisfy section 19 4 .5 . 16 .5. 20 Our submittal includes a street design that complies 21 with Weld County's requirements . The road within the minor 22 subdivision will be built in accordance with Weld County's 23 regulations . We have previously submitted a letter of credit 24 from the Berthoud National Bank for the internal improvements 25 shown on our minor subdivision plan. This satisfies Section 43 9403nz 1 4 .5. 16 .6 . The only road into the development comes off of 2 Colorado State Highway 60, a paved well-traveled road, and 3 follows the east property line. The traffic generated by nine 4 home sites will not significantly impact this road and will 5 certainly not impact agricultural use of the road. This 6 satisfies Section 4 .5. 16 . 7 . That access, I may, I guess, I 'm 7 not sure if I say this farther on down, we have already 8 applied for that access . We have received the access permit 9 from the Colorado Department of Highways and we have installed 10 it. 11 Our submittal includes detailed covenants which 12 obligate all owners to the maintenance of the subdivision 13 road. Mr. Lee Morrison, Assistant County Attorney, stated in 14 a November 30, 1993, memorandum that the covenants appear to 15 have adequate provisions to provide for assessments of the 16 maintenance of the common areas including the roads, on a 17 private basis. This satisfies Section 4 .5 . 16 .8 . These minor 18 subdivisions are not part of previously approved minor 19 subdivisions, which satisfies 4 .5 . 16 .9 . The covenants 20 previously referred to do not allow on-street parking within 21 the minor subdivision. We have also been requested by the 22 fire department to install signs, and I believe it's every 240 23 MS. MIKA: 250 24 MS. LARSON: 250 feet I believe, that there is no 25 parking because it's a fire lane which we would be doing. And 44 940392 1 our covenants also state there is no on-site parking within 2 the sub, no on-street parking within the minor subdivisions . 3 That satisfies 4 .5 . 16 . 10 . We have obtained the required 4 access permits State Highway 60 and have installed it, which 5 satisfies 4 .5 . 16 . 11 . The street plan shown on our submittal 6 and also on Exhibit "A" in front of you, and I apologize I 'm 7 not sure actually the street plan is on there, but it is in 8 our submittal, follows the east property line again. 9 MS. MIKA: Mrs . Larson, I have a copy of that, the 10 mylar sort of holds it down. Would you like that? 11 MS. LARSON: Do you, okay? 12 MS. MIKA: Does that help? 13 MS . LARSON: Yeah, you can see the street along the 14 east. 15 MR. CHILSON: Excuse me, can we mark that since it's 16 going to be testified to so that we have a record, Mr. 17 Morrison. Could I ask that you mark that as an exhibit and 18 Mrs . Larson I would ask that you identify that by the 19 designation that Mr. Morrison gives that. 20 MR. MORRISON: Exhibit "H" . Do you have mylars and 21 then paper copies of the same. 22 MS. LARSON: That's correct. These are just 23 MR. MORRISON: I 'm going to mark the paper copy, I 24 think. 25 MS. LARSON: Okay. What is the exhibit will it be?. 45 940302 1 MR. MORRISON: "H" . 2 MS. LARSON: This 3 MR. CHILSON: Donna, you need to speak into the 4 mike. 5 MS. LARSON: I ' ll leave it this way. I 'm referring 6 to Exhibit "H" which is the street and road plan, but it is 7 confusing in that north is to your left, okay. And I can turn 8 that so that north is up. Maybe that would make it easier. 9 CHAIRMAN WEBSTER: That's backwards, isn't it? 10 COMMISSIONER BAXTER: The other way around. 11 CHAIRMAN WEBSTER: Take it to, just opposite. There 12 you go. Can I interject a question at this point? 13 MS. LARSON: Sure. 14 CHAIRMAN WEBSTER: Maybe you're going to cover it in 15 this . Your comment was that that road down through there, is 16 it going to be a paved road? 17 MS. LARSON: No. We access the paved Colorado State 18 Highway. This will not be a paved road, no. It will be a 19 gravel road. 20 CHAIRMAN WEBSTER: Okay. What was your comment 21 about the construction of the road was to county standards? 22 MS. LARSON: Will meet with county standards, yes . 23 Which I believe is 18 feet in width with a 4-inch gravel base. 24 CHAIRMAN WEBSTER: I thought it was wider than that. 25 MR. CHILSON: Regulation 4 .5. 16 . 6 . 46 940302 1 COMMISSIONER KIRKMEYER: I think it 's 18 . 2 CHAIRMAN WEBSTER: Is it? Okay, I stand corrected 3 and I just caught that and I thought it was wider than that. 4 I thought it was 22 . 5 MS. LARSON: Well if you look at this, it's actually 6 24 , if you look at this little 7 CHAIRMAN WEBSTER: Well that's what I saw when you 8 were here earlier, it was 24 . 9 MS. LARSON: Right, but I think 18 is actually the 10 requirement, if I 'm not 11 MS. MIKA: That's correct. 12 COMMISSIONER HARBERT: 24 includes the shoulders or 13 whatever 14 MS. LARSON: It is 24, yeah, incorporating the 15 MR. CHILSON: Hold on, we've got too many people 16 talking Would you identify yourself and go ahead and say what 17 you 18 MS. LARSON: I 'm going to let my husband 19 MR. LARSON: I 'm Ivar Larson and the cross-section 20 drawing in Exhibit "H" shows that we exceeded the requirement 21 by the county and it's shown there as 24 feet I believe. 22 CHAIRMAN WEBSTER: I remember it as being 24 23 overall. 24 MR. LARSON: We didn't have to do that, but we felt 25 that we needed to have that road wider and I think basically 47 940392 1 it' s shown, if you turn that over you can see the detail . 2 MS . LARSON: The only road into the development as 3 you can see from Exhibit "H" , comes off of Colorado State 4 Highway 60, which Highway 60 is the paved well-traveled road 5 and follows the east property line. The traffic generated by 6 nine home sites will not significantly impact Colorado State 7 Highway 60 and will certainly not impact agricultural use of 8 the road. This satisfies Section 4 .5 . 16 . 7 . 9 Our submittal includes detailed covenants which 10 obligate all owners to the maintenance of the subdivision 11 road. Mr. Lee Morrison, the Assistant County Attorney, stated 12 in a November 30th memorandum, 1993 excuse me, memorandum that 13 the covenants appear to have adequate provisions to provide 14 for assessments of the maintenance of the common areas 15 including the roads on a private basis, which satisfies 16 4 .5. 16 .8 . And I think I may have gone backwards on you. 17 Sorry about that. 18 Now, the street plan shown in our submittal and also 19 in Exhibit "G" in front of you, demonstrates that ingress and 20 egress to all lots within the minor subdivision are to an 21 internal road circulation system which satisfies 4 .5. 16 . 12 . 22 Our submittal includes a final drainage report dated November 23 10, 1993, prepared by CDS Engineering that describes how our 24 minor subdivision proposals provide adequate drainage and 25 storm water management. This report satisfies 4 .5. 16 . 13. As 48 940392 1 you can see in Exhibit "G" in front of you, there are four 2 lots in Mountain View Estates #1 and five lots in Mountain 3 View Estates #2, and each lot is equal to or greater than 2 . 5 4 acres in size, which is what you have specified and meets 5 Section 4 .5 . 16 . 14 and 15 . 6 We have signed an agreement with the consolidated 7 Home Supply Ditch Company and incorporated their requirements 8 into our covenants . With these actions, they have responded 9 to our proposals by stating that they find no conflict with 10 their interests . We have incorporated the conditions of the 11 Weld County Environmental Health Department into the covenants 12 to satisfy their concerns. We will comply with all of the 13 requirements of the Berthoud Fire Protection District and they 14 have stated that our plan is satisfactory to them. We plan to 15 add the walkway and bus waiting area as requested by the 16 Thompson R-2J School District and will negotiate development 17 fees per their request. The Weld County Sheriff finds no 18 conflicts with their interests . The Big Thompson Soil 19 Conservation District finds no conflict with their interests . 20 The Larimer County Planning Department finds no conflict with 21 their interest. The City of Loveland has declined to comment 22 on our project, which by your Section 4 .5 .7 may be deemed to 23 be a favorable response. Public Service has given us a letter 24 of commitment for natural gas and Poudre Valley REA for 25 electricity. All in all, this project will not cause an 49 940312 1 unreasonable burden on the ability of local governments or 2 districts to provide fire and police protection or other 3 services, which satisfies Section 4 . 5 . 16 . 16 . 4 This area is served by a paved state highway, 5 available telephone service, adequate electrical supply, 6 adequate water mains for both domestic and fire protection, 7 and natural gas lines border the property. The fact that 8 there is a cluster of existing residences is evidence of the 9 availability of services . It has been and continues to be an 10 appropriate area for rural residential growth. There is a 11 demand for rural residential living and the Weld County 12 Comprehensive Plan addresses the county' s responsibility to 13 manage, accommodate and insure that public services are 14 available for residential, commercial and industrial growth 15 that is expected to occur. Mountain View Estates #1 and #2 16 are uniquely supplied with services and located within a 17 current rural residential use area. The surrounding cropland 18 is buffered from direct impact of these two minor 19 subdivisions . It is entirely appropriate to allow further 20 agriculturally oriented residential growth under these 21 circumstances . We feel we are offering an opportunity here, 22 an opportunity to allow growth inside of an urban growth 23 boundary area where services are already available. To bring 24 better fire protection into an existing rural residential area 25 and an opportunity to provide a healthy, rural lifestyle to 50 940392 1 nine more families wishing to escape the urban environment. 2 Thank you for your time and I appreciate the consideration of 3 my proposal . 4 MR. CHILSON: Before you close, I have a few 5 specific questions I wish you to answer to the commissioners . 6 I 'm John Chilson again. All on-site septic disposal systems 7 will be engineered to meet all county and state health 8 regulations, is that correct? 9 MS. LARSON: Yes . 10 MR. CHILSON: You have provided the soils report 11 from CDS Engineering on the entire properties under Mountain 12 View #1 and #2 minor subdivisions? 13 MS. LARSON: Yes . 14 MR. CHILSON: Did it conclude that there were any 15 soils hazards on the site? 16 MS. LARSON: No, there are no hazardous conditions 17 on the site. 18 MR. CHILSON: Do you agree to accept all of the 19 conditions recommended by the staff on both of your minor 20 subdivision proposals? 21 MS. LARSON: I would call those the conditions for 22 approval that we received at the Planning Commission and, yes 23 I would agree with all those. 24 MR. CHILSON: Alright. Have you committed to build 25 the interior street, then, in accordance with your drawing on 51 9403?2 1 Exhibit "H" which will exceed the county regulations, is that 2 what you have committed to build? 3 MS. LARSON: Yes . 4 MR. CHILSON: You have obtained from the Colorado 5 Department of Transportation the required access permit for 6 your internal subdivision road serving both of these 7 subdivisions, onto Colorado Highway 60, a State Highway, is 8 that correct? 9 MS . LARSON: Yes, and installed the access . 10 MR. CHILSON: And that access is in place and 11 installed today? 12 MS. LARSON: Yes . 13 MR. CHILSON: The way in which both of these minor 14 subdivision applications are planned, is it true that there 15 will be no additional access required to a county, state or 16 federal highway for either one of these subdivisions? There 17 will not be any additional access permits required? 18 MS. LARSON: Other than what we have obtained, yes 19 that' s true. 20 MR. CHILSON: Alright, clarify. 21 MS. LARSON: There will be no additional access. 22 MR. CHILSON: No additional access permits required? 23 MS. LARSON: No. 24 MR. CHILSON: You already have in place your access . 25 MS. LARSON: Right. 52 940392 1 MR. CHILSON: Thank you, that' s all I have. 2 MS. LARSON: Do you have any questions you wish to 3 ask me? 4 CHAIRMAN WEBSTER: Are there questions from the 5 board? 6 COMMISSIONER HARBERT: Well, I only have a concern 7 and I 've brought this up in other hearings and that is with 8 only one access to all of those parcels, if there would be 9 some type of a catastrophe that would block the road 10 somewhere, let's say in the middle, and people from the lower 11 end need to get out, is there any alternative means of them 12 getting out of the area? 13 MS. LARSON: I don't believe, this is a difficult 14 question, in a way to answer. There is a ditch access road 15 along the, I believe it's the Home Supply Ditch, yeah, it 16 doesn' t go down there. But our road is really not, we're not 17 allowed to legally use it, I don't believe. I suppose in an 18 emergency that we could. 19 COMMISSIONER HARBERT: Well, I just think that it' s 20 MS. LARSON: I mean I wouldn't be able to use it 21 like to show it as a street. 22 COMMISSIONER HARBERT: Where does that ditch lake 23 road, lake ditch road go to? 24 MS. LARSON: It goes out to, help me, county road, 25 what's the county road? 53 9403'12 1 MR. LARSON: There are actually two accesses 2 MR. CHILSON: Identify yourself. 3 MR. LARSON: Yes , Ivar Larson again. There are two 4 accesses that parallel the Home Supply Ditch on the north 5 side. There 's a lower access and the upper ditch access . So 6 there are two that could be used for emergency situation and 7 we have farm traffic that parallels that, ditch maintenance 8 traffic and those can never be closed. So you could go from 9 our cul-de-sac straight to the back side and right out to the 10 county road that parallels running north-south. 11 MS. LARSON: There's a county road, I 'm Donna 12 Larson, there' s a county road that runs around this lake and 13 right up this line. And the ditch road intercepts with that 14 county road, is what I 'm trying to say. But I couldn't 15 actually tell you that I would use that as a street. 16 COMMISSIONER HARBERT: But on your road plan, if 17 you'd put that back up. The one that you just had that shows 18 the cul-de-sac, how would people get from that cul-de-sac to 19 the south to that ditch road? 20 MS. LARSON: And that's, you know, all I can tell 21 you is there is an easement and they would, we're not really 22 allowed to connect to that ditch road. 23 COMMISSIONER HARBERT: So the easement extends clear 24 to the end. It doesn't end at the 25 MS. LARSON: The easement does, that' s the dotted 54 940302 1 line, yeah. 2 COMMISSIONER HARBERT: It doesn 't stop at the cul- 3 de-sac. 4 MS. LARSON: No, no. The easement is there but I 5 can't make a road to connect to it. They wouldn' t let me do 6 that, I 'm sure. 7 COMMISSIONER HARBERT: Okay. Alright. 8 COMMISSIONER KIRKMEYER: When did you get the 9 recorded exemption to split the 25 acres? 10 MS. LARSON: 1974 . 11 COMMISSIONER KIRKMEYER: And what was the purpose of 12 the recorded exemption at that time? 13 MS. LARSON: It was just an opportunity at that 14 point, was all we could do with it was to divide it into two. 15 But we didn't feel that was really adequate use of the 16 services that are available at that site. But that was all 17 that was available that I am aware of, at that time. 18 COMMISSIONER KIRKMEYER: Okay, you purchased the 19 land in 1970, approximately? 20 MS. LARSON: We were talking about that, yeah, 21 approximately. 22 COMMISSIONER KIRKMEYER: I mean not exact date. But 23 then in 1974 you did a recorded exemption. Have you ever 24 owned any of the adjacent properties or ever farmed any of the 25 adjacent properties? 55 9403.2 1 MS . LARSON: No, no. That was done prior to when we 2 owned it. 3 COMMISSIONER BAXTER: All this area has been farmed 4 continuously and no other houses have been built on any of 5 this property: 6 MS . LARSON: I 'm not sure what you mean. On the 25 7 acres there are no homes . No, if that 's what you're asking 8 me. 9 COMMISSIONER BAXTER: Yes, that' s what I mean, your 10 property. 11 MS. LARSON: Right, right. 12 CHAIRMAN WEBSTER: And this is the only piece of 13 land you own in there, is that correct? 14 MS. LARSON: Yes. 15 CHAIRMAN WEBSTER: Nothing around the lake, in that 16 area? 17 MS. LARSON: No. How far away are we? We're six 18 miles? How far away are we? Five or six miles, our home 19 farm. 20 CHAIRMAN WEBSTER: That's the one you were here 21 previously about. 22 MS. LARSON: No, no. We live east of Berthoud, no. 23 CHAIRMAN WEBSTER: You don't live there either. Oh 24 you live in Berthoud, that' s correct, I 'm sorry. 25 MS. LARSON: We live on a, we don't actually live in 56 9403")2 1 Berthoud, but we live east of Berthoud. 2 COMMISSIONER KIRKMEYER: Back to the road. In here 3 I notice a letter from Mountain View Belgians ( inaudible) 4 MS. LARSON: Yes . 5 COMMISSIONER KIRKMEYER: And they're talking about 6 the road possibly as to the subdivision as half way on their 7 land? 8 MS . LARSON: That was our original proposal. We, 9 when we did the recorded exemption, Dave Scott lived there. 10 And he wanted to split the access so that we had 30 feet on 11 each side. So we did. That was part of our recorded 12 exemption. And so we filed these minor subdivisions using the 13 shared access . And Kuehl ' s objected to that so that was one 14 reason we postponed, I forget what hearings we postponed, it 15 probably was the Planning Commission because since they 16 objected and Lee Morrison agreed that it could cause some 17 concern since we had a homeowners association and they 18 wouldn't really be part of the homeowners association and 19 maintenance of the road, etc. , that we just moved the whole 20 road over onto ours . So they have their own road going back 21 that would be east of ours which would be that, do you see 22 that long little side pole, that would be their road and then 23 our road would be on, totally on our property on the east 24 side. And we got a new Department of Transportation Access 25 then. We had to redo that because it went from a shared to 57 940392 1 one just on our side. 2 COMMISSIONER KIRKMEYER: So there ' s an access now 3 then, on the, I don't know how you pronounce the last name, on 4 the Mountain View Belgian side 5 MS. LARSON: Right. 6 COMMISSIONER KIRKMEYER: And then there 's also an 7 access on your side? 8 MS. LARSON: Right. 9 COMMISSIONER KIRKMEYER: So there's two accesses 10 right up there at that point. 11 MS. LARSON: Exactly, but they're not, there' s a 12 little space in between them. The Department of Highway set 13 a space that ours had to have the full turning radius to the 14 property edge or whatever, and we've accommodated that. 15 COMMISSIONER KIRKMEYER: And what separates those 16 two roads, a fence or anything? 17 MS. LARSON: I, we will probably put a fence up, but 18 COMMISSIONER KIRKMEYER: But at this point, nothing 19 separates that? 20 MS. LARSON: Nothing, no. 21 MR. LARSON: I 'm Ivar Larson again. There is a 22 ditch that runs along the property line for the irrigation 23 water carrying to highway 60 on the south side on the 24 MS. LARSON: It's our waste ditch, right? 25 MR. LARSON: It's a waste ditch and a supply ditch 58 940392 1 for some of the people. Basically it provides the division 2 and the access that we have modified. We have lengthened, the 3 access was there for the field, the front field to the north. 4 So it has been changed according to the State Highway 5 Regulations and requirements . 6 COMMISSIONER KIRKMEYER: And Little Thompson Water 7 District is supplying the water to these proposed nine lots? 8 MS. LARSON: Yes, there' s a 10-inch water main along 9 the highway and they have adequate pressure for both fire 10 hydrants and domestic water. 11 COMMISSIONER KIRKMEYER: For all four fire hydrants? 12 MS. LARSON: Yes . 13 CHAIRMAN WEBSTER: Additional questions? 14 COMMISSIONER HALL: Yes. I guess I 'm trying to, you 15 had the recorded exemption done in 1974 but you said something 16 about that was the only thing to do at the time. 17 MS. LARSON: I don't believe there was a minor 18 subdivision process at that point, that I was aware of anyway. 19 COMMISSIONER HALL: Can you explain to me and help 20 me understand why you did the recorded exemption then. What 21 was your thinking for doing the recorded exemption. 22 MS. LARSON: Long-term we felt the only appropriate 23 use for this property, long-term, would be rural residential. 24 But the only thing we could do at that point was divide it 25 into two pieces . We don't feel with the services that are 59 94030'2 1 available at that site, from natural gas, telephone, water, 2 etc. , we didn' t feel that was an appropriate division of the 3 ground. We feel that smaller parcels would better utilize the 4 ground and the services that are already available there. 5 COMMISSIONER HALL: And also, do you know how far 6 to, the closest town I guess would be Loveland? 7 MS . LARSON: Yes . 8 COMMISSIONER HALL: How far to the city limits would 9 this be? 10 MS. LARSON: I, your statement says a mile and a 11 half. I think it's actually more, a little bit farther than 12 that, but I 'm not sure. It's the county line between Larimer 13 and Weld. 14 COMMISSIONER HALL: The city limits of Loveland goes 15 to the county line? 16 MS. LARSON: No, no. I 'm saying that is a county 17 line between Larimer and Weld 18 COMMISSIONER HALL: Okay, but where is the city 19 limits of Loveland? 20 MS. LARSON: We had the City Engineer certify that 21 we were within three miles and I don't have an exact distance. 22 I 'm saying your Planning staff said it was a mile and a half 23 on their response. 24 MR. LARSON: I 'm Ivar Larson again. There is a 25 letter in your file that has been drafted by the City Engineer 60 9403^2 1 of Loveland that states that we are within the 3-mile radius 2 and then we had discussion with Lee and Planning and we are 3 within the urban growth area for Weld County. 4 COMMISSIONER HALL: My question was how far are you 5 from the city limits, not whether or not you are within three 6 miles . 7 MS . MIKA: Commissioner Hall, that may actually be 8 a difficult question to answer because I think at this time 9 they are changing some of their limits and boundaries as part 10 of the review of their Comprehensive Plan, so 11 COMMISSIONER KIRKMEYER: The City of Loveland is 12 doing an annexation to change their city limits? 13 MS. MIKA: No, but I think that 14 COMMISSIONER KIRKMEYER: So where do the city limits 15 of Loveland go to right now? 16 MS. MIKA: How close? When I 17 MR. CHILSON: The city limits of Loveland that are 18 relative to this particular proposal extend just a quarter of 19 a mile to the south of Colorado Highway 402 which is one mile 20 to the north of Colorado Highway 60 . The eastern most 21 boundary 22 UNKNOWN SPEAKER: 2 miles 23 MR. CHILSON: Excuse me, two miles . The eastern 24 most boundary of Colorado, of the annexations on Highway 402 25 are a gravel road that serves a gravel facility. I don't know 61 9403^2 1 if you ' re familiar, there is a dog kennel on Highway 60 and 2 it' s just short of that, just to the west of that is a gravel 3 road that goes back to a gravel pit. The annexation comes to 4 that point and over on the south which includes the kennel . 5 From that point over to this point is going to be roughly two 6 and a quarter miles . That's the southeast corner of Loveland 7 at this point. 8 MS. LARSON: Your, this is Donna Larson. Your 9 resolution from the Planning, the blue sheet that you got 10 that's the final corrected one, states the parcel is located it approximately one and a half miles from the city limits of 12 Loveland. I , as I say, we just had the City Engineer certify 13 that we were within three miles . We didn't get a distance. 14 MS. MIKA: How the Planning staff arrived at that, 15 we did measure it from our map. I don't know if we had the 16 most current map or not, but we did, that's where the one and 17 a half miles came from. We tried to approximate where it is . 18 CHAIRMAN WEBSTER: Thank you. Any further 19 questions? 20 COMMISSIONER HARBERT: I guess from the map that we 21 have of Weld County, you're approximately four miles from 22 Johnstown. 23 MS. LARSON: I don't believe we're in the sphere, the 24 realm of influence of Johnstown. It's Loveland. 25 COMMISSIONER HARBERT: Yeah, so you did yeah, but 62 9403'12 1 CHAIRMAN WEBSTER: Further questions? Thank you. 2 At this time I would ask if there is anybody here in 3 attendance today who would like to speak for or against this 4 application please. Yes sir. As the people are making their 5 comments , I would appreciate it if they would give their name 6 and address for the record since everything' s on tape. 7 MR. CLAGETT: Good afternoon. Can you hear me 8 properly? I 'm John Clagett. I live at 1320 West 6th Street 9 in Loveland, Colorado. I also spoke at the Planning 10 Commission hearing. Myself and my brother-in-law, Dr. James 11 Gentry, own the farm, 120 acres, directly to the west of, 12 we're all along this property line, 80 acres here, 40 acres 13 across from ( inaudible) . We very strongly oppose this just as 14 much today as we did the last time. And I think it's 15 outrageous that two people can take this much time of this 16 many people to try to sell nine lots instead of two. That's 17 what we're up against. I 'm encouraged, Mrs . Larson, that you 18 didn't threaten all of us to put a feedlot in there if you get 19 turned down. You did the last time. And I made the remark, 20 today we're fighting a subdivision, we' ll fight the feedlot 21 the next time. 22 CHAIRMAN WEBSTER: Do you have any reasons that 23 you'd like to give for your position you're taking rather than 24 just. I 'd prefer that, that you don't 25 MR. CLAGETT: Yes sir. Yes . These were just my 63 9403?2 1 editorial comments . My problem is that I had planned to spend 2 Good Friday with my children a thousand miles away and now I 3 won't be able to do that. I 'm a little upset. Mrs . Larson 4 alluded to the two homes up here that were close together, 5 closer than theirs . Well, let me tell you. One belonged to, 6 the one on the east, belonged to the Hanson family, belonged 7 to the Hansons . They built that house and Mrs . Hanson and 8 Mrs . Gentry were sisters . And they wanted to be that close. 9 And they were all members of the Warberg family and they all 10 wanted to be close to each other. Almost all the homes except 11 for the three down in the long acreages have been there 70, 80 12 years . This is rural country, this is not city subdivision, 13 and those are rural homes . And it' s irrigated farmland and 14 they're there because son came in and started farming with dad 15 and built his house there. The Brehms, who will talk to you 16 next, their house was, I think, built about 1918 something 17 like that. We're getting good at this, I remember the years 18 and everything now. The little lake that's there, that' s all 19 natural drainage lake and if nine septic tanks start draining 20 into that lake, it will ruin it for the wildfowl and for any 21 other purpose. We own the who 80-acre strip next to the nine 22 lots here. We would have, my brother-in-law and I, would have 23 no objection if they wanted to build two houses. But no, they 24 want to build nine because there's a lot more bucks in nine 25 lots. The nine septic tanks all draining into that farming 64 940302 1 area is , it' s already a high water table in there or there 2 wouldn' t be a drainage pond there. Nine more septic tanks is 3 going to pollute that land. I ' ll tell you, if you folks grant 4 this to the Larsons, we ' ll be back because we' ll want to 5 subdivide the whole 80 acres next to them. Why not? It won't 6 be good farm land anymore. 7 These nine houses, properties have very poor access 8 to 60, Colorado 60 . A single entrance onto a very busy 9 highway. What' s wanted here is a city subdivision in the 10 country, and this is still rural country out here. There is 11 nothing that takes this from out of the rural. This is still 12 farming country. We are farming the 120 acres . Everyone else 13 around is farming yet. We don't need a city subdivision a 14 mile and a half out of Loveland. 15 There is already low water pressure in this water 16 district, already low gas pressure. It can't stand this many 17 more homes without major money being spent on all of the 18 services and utilities . If they wanted to build two homes , I 19 don't think any of us would be here. Nine is outrageous, and 20 we just, we want to keep farming in our farm next to this . We 21 want to farm. The other people want to farm. The Brehms want 22 to farm. This is farming country yet, this is not a 23 subdivision of the City of Loveland. I urge you to reject 24 this for the last time. Thank you. 25 CHAIRMAN WEBSTER: Any questions for this gentleman 65 9403'^2 1 please? Board first, please. 2 COMMISSIONER BAXTER: Do you have any direct 3 knowledge of the water table level in this area? The ground 4 water level? 5 MR. CLAGETT: Well, I don't have numbers except that 6 I know that when my father-in-law dug a well, he had to close 7 up the well because he was getting polluted water into the 8 well and it was only eight feet deep. I think there is 9 probably water flowing underground no more than three or four 10 feet. Does that fit? 11 UNKNOWN SPEAKER: You can do your post hole three 12 feet and you' ll get water. 13 MR. CLAGETT: So post holes get you to water. 14 COMMISSIONER BAXTER: The reason I mention it is 15 because we had letters that alluded to the same thing and I 16 had no information that I had seen, maybe I overlooked it, of 17 what the water level was . 18 MR. CLAGETT: It's high. 19 COMMISSIONER BAXTER: But that would, of course, and 20 there' s so many that don't have a good knowledge of septic 21 systems that high water level, of course, is the basic only 22 problem you have. And there's some dissention, even amongst 23 the board on how safe they are, and I think we're going to get 24 into that more later in a whole different issue, but the fact 25 of the water level is the real point here. 66 940392 1 MR. CLAGETT: It 's one of the points . Someone in 2 our groups has a number of slides showing you the rural 3 character of the neighborhood. We don't need nine houses in 4 a row out in the country, yet. This is land down from the 5 high ground, probably a mile further east where it reaches a 6 very high peak and there is a feedlot up on top of that hill 7 along Colorado 60 . Mr. Brehm can undoubtedly tell you the 8 name of those people. But this is choice rural country yet 9 and we want to keep it that way a while longer. More 10 questions? 11 MR. CHILSON: Mr. Chairman I have a question after 12 you're through. 13 CHAIRMAN WEBSTER: Any questions from the board? 14 COMMISSIONER HARBERT: In the letter from the Little 15 Thompson Water District, it states that there is a 10-inch 16 water line located along the south side of State Highway 60 17 and that they feel that they do have enough water available 18 for those nine houses . About how many houses do you feel come 19 off of that? All of those up there with the "H" on them, do 20 they all come off of that? 21 MR. CLAGETT: Yes. And further east and further 22 west and further north and further south. The 10-inch main, 23 the key thing is how much pressure's left in it. 24 COMMISSIONER HARBERT: Well, I realize that. Having a 25 pipe 10-inches wide isn't the total answer to the problem. 67 9403'12 1 MR. CLAGETT: No. It 's low water pressure and 2 getting worse. And the 3 COMMISSIONER HARBERT: Can you describe how low the 4 water pressure is? I mean can you 5 MR. CLAGETT: I would guess that it's probably no 6 more than 20 pounds a lot of the time. We've got 45 here in 7 the city. 8 CHAIRMAN WEBSTER: Further questions from the board? 9 10 MR. CLAGETT: I urge you to support the majority of 11 us here. 12 COMMISSIONER HALL: Mr. Chairman, I 'm not sure that 13 the public testimony portion of this hearing is a give and 14 take between the applicant and the public. I think if they 15 want to rebut anything the public says, they have that 16 opportunity, but the public doesn't have the opportunity to 17 come up here and testify or to cross-examine the applicant. 18 They're just basically up here to do 19 CHAIRMAN WEBSTER: Well that's my problem with the 20 procedure when I was speaking earlier, explaining what our 21 procedures are, is that, you know, we can just keep going back 22 and forth, is the way I look at it. You certainly have the 23 right to come up and ask them questions . 24 MR. CLAGETT: All those people out there are yet to 25 speak. 68 940302 1 COMMISSIONER HALL: Mr. Morrison, I guess I 'd like 2 to have say something right here. 3 CHAIRMAN WEBSTER: I 'd like to have a determination, 4 too. 5 MR. MORRISON: I think that does present some 6 problems . Again, as I suggested earlier, you've handled some 7 of those questions by not doing formal cross-examination, but 8 allowing both the neighborhood and the proponent to pose those 9 questions to the other side and ask for response, not a direct 10 give and take, but in the context of testimony, and that's 11 been basically how you've handled the issue of posing 12 questions between the parties . 13 COMMISSIONER HARBERT: Personally, I 'd like to stay 14 with that process . 15 CHAIRMAN WEBSTER: Well, that's my preference, too, 16 certainly. 17 COMMISSIONER HARBERT: If Mr. Chilson would keep 18 track of all the questions and issues that are brought up and 19 then after the end of public testimony he can 20 CHAIRMAN WEBSTER: And the applicant can 21 COMMISSIONER KIRKMEYER: He has the opportunity to 22 rebut that? 23 CHAIRMAN WEBSTER: He can rebut the questions . 24 MR. MORRISON: Well, I think he can also pose 25 questions to the, you know, and it goes both ways, and ask 69 9403'?2 1 that the other side respond to them. The only question is 2 whether each of these neighborhood witnesses are going to be 3 available later on in the presentation. That would be the one 4 problem. 5 MR. CLAGETT: I ' ll be very honest. I 'm leaving as 6 soon as I can step down from this podium. I need to get on my 7 way to Arkansas . But there are many more people, all, 8 everyone here has a different thing to say and a different 9 viewpoint. And it took all day at the Planning Commission, 10 it's going to take all day here, too. 11 CHAIRMAN WEBSTER: As it should be. 12 MR. MORRISON: I think we're trying to discuss the 13 issue of procedure. You know, what I would suggest is 14 allowing Mr. Chilson to pose the questions in a general format 15 and ask for a response, not a direct cross-examination. 16 MR. CLAGETT: I didn't come here to answer Mr. 17 Chilson's questions . I came here to make a statement on our 18 behalf. 19 MR. MORRISON: Excuse me, can I, I would like to 20 discuss this with the board if that's alright with the 21 Chairman. 22 CHAIRMAN WEBSTER: Yes . 23 MR. MORRISON: That is my suggestion to the board. 24 I don't agree with Mr. Chilson that direct cross-examination 25 is required in every case in order to afford due process . I 70 940392 1 think, though, the opportunity to at least pose those 2 questions and ask for answers, you know, if the witness 3 chooses not to answer, you can draw your own conclusion from 4 his disinclination to answer or respond. 5 CHAIRMAN WEBSTER: Well, I think it 's by rights 6 that, in my mind, that the person speaking certainly in my 7 mind has a decision as to whether they want to answer the 8 questions or not or whether they feel that they came here to 9 simply give information to the board as to how their feelings 10 are and not be questioned as to, by anybody for that matter, 11 including us, with a cross-examination of questions. And 12 that's my feeling about it. 13 MR. CLAGETT: Mr. Webster, I didn't come here to 14 participate in a trial. I came here to make a statement the 15 second time around how we feel about this and what our course 16 of action is going to be if this is granted. And that's all 17 I 've got to say. All these other people have other things . 18 They live there. We cherish our farmland out there. 19 CHAIRMAN WEBSTER: At the risk of me being in 20 trouble, Lee, I really feel that these people out here deserve 21 the right to give their statements and after they have given 22 their statements, then the applicant has an opportunity in 23 listening to their testimony to come back and rebut their 24 feelings and try to answer their statements and that's where 25 it should end at that point; and that we cannot get into the 71 940302 1 position of any type of cross-testimony, cross-examination, 2 whatever you want to call it. So my feeling is , right now, 3 and I would say that I want to listen and I hope my board 4 backs me up on this, I would like to listen to the rest of the 5 people out here and their testimony on this and after that has 6 been completed, then Mr. Chilson and the Larsons can certainly 7 answer some of the questions, and some of the concerns that 8 have been brought up by these people and can refute them if 9 they wish, or they whatever. 10 MR. CHILSON: Mr. Chairman, John Chilson. Rebuttal 11 is not the same as cross-examination. I will abide by the 12 Chair' s ruling, however it goes . I won't ask questions if you 13 prohibit me. You're in a quasi-judicial proceeding. You are 14 adjudicating this mixed issues of fact and law. You have 15 constitutionally protected property rights at stake. You will 16 have people who will come before you to turn this into a 17 property rights hearing. The adjudication of their property 18 rights in what someone else owns . That happens to be my 19 clients. Now, if you want to deprive my clients of the right 20 to test the voracity, the knowledge, and the factual basis, if 21 any, of their testimony, go right ahead. I can't stop you. 22 But you are depriving property owners of constitutionally 23 protected rights of due process of law if you do that. Now, 24 I 've had my say. 25 CHAIRMAN WEBSTER: I can understand your feeling on 72 940392 1 this issue. 2 COMMISSIONER KIRKMEYER: You know, excuse me, Mr. 3 Chairman, I think 4 CHAIRMAN WEBSTER: But I think at the point when you 5 said 'to test' and we 're not here to test the applicants to 6 their statement, we're to hear their statements only and it's 7 up to us to test 8 MR. CHILSON: Oh yes you are! Mr. Chairman, that ' s 9 exactly what you 're here to do. You are sitting here almost 10 as a court and you have to test 11 CHAIRMAN WEBSTER: Almost as a court, but not a 12 court. 13 MR. CHILSON: That's right. And you have to test 14 the voracity and the basis of the knowledge of the witnesses 15 in this proceeding in order to find what is the truth here. 16 If you abdicate in that responsibility, I can't prevent you . 17 But you are, were elected to do this job. You're elected to 18 find out what is the truth here and unless you test the 19 voracity of these people, unless I 'm given the opportunity 20 that will enable you to do that, you're going to abdicate. 21 It's up to you. 22 CHAIRMAN WEBSTER: I test them, and the rest of my 23 colleagues here test them when we ask them questions about 24 what they mean. As I stopped this first gentleman here, and 25 asked him to give some reasons and why he felt the animosity 73 9403?2 1 that he did about the plans of the Larsons . And which then he 2 went ahead and did give some reasons , certainly. 3 MR. CHILSON: The applicants also 4 CHAIRMAN WEBSTER: And as far as I 'm concerned, if 5 the gentleman is through with his statement and we're through 6 with our questioning, I would like to call for the next person 7 to testify. 8 MR. CHILSON: Very well . I wish to make an offer of 9 proof at this time on the record. The offer of proof is that 10 if I were permitted to question Mr. Clagett, the following 11 testimony would be given by him. He has never read, he has 12 never commissioned and he has no knowledge of, any hydrology 13 study on the drainage on this property or the existence of the 14 water table. And he is incompetent to express opinions as to 15 that. He has not reviewed the CDS drainage study that's in 16 the file. He's incompetent to testify as to what direction 17 the drainage goes or to whether or not there's any possibility 18 it would enter the lake. He has not read any documents from 19 Little Thompson Water District nor has he obtained any data 20 nor any engineering studies from Little Thompson as to what 21 water pressure and flows are in that line, and what the 22 capacity of that line is . His testimony is total conjecture. 23 That's my offer of proof . 24 CHAIRMAN WEBSTER: That is the type of statement 25 that would be as a rebuttal after these people have talked. 74 940312 1 MR. CHILSON: No. But I can' t put that into 2 evidence. You see, I 'm not able to testify, Mr. Webster. I'm 3 not a witness, I 'm a lawyer. 4 CHAIRMAN WEBSTER: We 've listened to it as evidence. 5 As far as we're concerned, you have made your statement. 6 COMMISSIONER KIRKMEYER: Excuse me, Mr. Chairman. 7 CHAIRMAN WEBSTER: Yes . 8 COMMISSIONER KIRKMEYER: Yes, I would like this 9 discussion to be between the Board of Commissioners and our 10 Assistant County Attorney as to whether or not we would allow 11 him to cross-examine or whatever, and I don't think it ' s 12 proper that the discussion is between a personal witness at 13 the podium or the applicant's attorney. And I guess I would 14 like to refer back to Lee and ask him whether or not, as part 15 of due process, if we should allow this type of cross- `„ y; 16 examination or if we shouldn't. 17 MR. MORRISON: Well, 18 MR. CLAGETT: Ma'am, let me say 19 COMMISSIONER KIRKMEYER: Excuse me. No it's really 20 improper at this time because I think this conversation needs 21 to be between the board and the Assistant Attorney. If you 22 wish not to answer questions, that's up to you. But I would 23 like first of all to have this discussion between us to settle 24 this between the board before we move on. 25 MR. CLAGETT: I need to make a statement when you 're 75 9403'12 1 done. 2 COMMISSIONER KIRKMEYER: And I think afterwards, if 3 you want to address the Chairman and ask to make a statement, 4 that 's, that would probably be proper. But at this point, I 'm 5 asking a question of our attorney and I would like to keep 6 this discussion between us to get to a decision point. Thank 7 you. 8 MR. MORRISON: The basic issue when you do a 9 hearing, is basic fairness . One of the problems of fairness 10 is that you put the applicant in a position of, in essence, 11 questions not direct cross-examination. The questions can be 12 posed to the applicant during the public portion of the 13 testimony which you correctly expect the applicant to respond 14 to, and yet the applicant has no opportunity to pose questions 15 in any fashion to those testifying during the public 16 presentation. And again, I 'm not suggesting that we get into 17 a formal cross-examination, but I do think that there's a 18 possibility of an imbalance there when there's, excuse me, not 19 an opportunity to pose questions to the members of the public 20 when there is an opportunity to pose questions to the 21 applicant. 22 COMMISSIONER KIRKMEYER: Even though the applicant 23 has the opportunity to basically rebut or pose questions at 24 the end, and he has the last say? 25 MR. MORRISON: Well, but rebutting and questioning 76 94032 1 are not the same. They may arrive at the same set of facts, 2 may deal with the same set of facts, but if the question is 3 the basis of someone's testimony, what information they have 4 as a basis for that testimony, unless they have direct 5 knowledge about everyone 's, everyone testifying's knowledge, 6 there's no way to rebut that in their own set of testimony. 7 COMMISSIONER KIRKMEYER: And what about our own 8 administrative policy and procedures. I mean, do we allow for 9 cross-examining in there? 10 MR. MORRISON: We do not. We provide for cross- 11 examining when there is a, such as a liquor hearing or a 12 revocation hearing. And again, I 'm not saying that this kind 13 of hearing which is quasi-judicial but has attributes of a 14 legislative decision, requires direct cross-examination. I do 15 think that there can be an issue here where there's not the 16 opportunity to at least pose questions and ask a witness to 17 respond to those even though it's not in a direct cross- 18 examination. 19 COMMISSIONER KIRKMEYER: Does the witness have to 20 answer? 21 MR. MORRISON: They're not under subpoena in this 22 case, they're a member of the public, so you don't really have 23 a means of compelling them to answer. You know, how they 24 choose to answer or don't choose to answer, is something you 25 should take into consideration as a respect to their 77 940392 1 credibility as a witness . 2 COMMISSIONER BAXTER: Lee, there' s no way that can 3 be handled at all at the end? I guess I need to know, their 4 attorney has no right at the end as was said, that he can come 5 back at the end of the testimony, granted it's sometime down 6 the road, not immediately after, he can say the same things, 7 that this was conjecture on the part of this, any person that 8 said it that he doesn't know, this, this , this, this, is 9 conjecture on his part. That' s not the same as being able to 10 answer, is what you're saying? Am I hearing you right? 11 MR. MORRISON: I guess the question is, who's the 12 issue better addressed to when the issue is what knowledge the 13 witness has . And it would be better to have the witness 14 answer what basis their knowledge is and, you know, at least 15 it gives them the opportunity to express that. 16 COMMISSIONER BAXTER: If it' s part technical in 17 nature, particularly, I would think. 18 COMMISSIONER KIRKMEYER: Mr. Chairman, since this 19 discussion is among board members, I would hate to think that 20 we weren't being fair. I 'd hate to be accused of not being 21 fair and I think if the applicant or their attorney has 22 questions and they would like to pose them, I think that out 23 of all fairness I think they probably should be able to do 24 that. And I think it's probably up to the person who's 25 testifying whether or not they want to answer or not. I mean 78 940322 1 I know we ' re all basically trying to forego cross-examination 2 and shouting matches and people being harassed or yelled at or 3 whatever, and I think I 'd like to try and just get through 4 this hearing basically. 5 CHAIRMAN WEBSTER: I would concur with that, 6 certainly. But I would also say that I feel that these people 7 who have come here this afternoon, or this morning actually 8 and spent the day and wanting to make a statement, simply are 9 here to make a statement and not to be cross-examined by 10 anybody and I would say to them that if they feel that they 11 want to answer those questions, I will bow to the comments Lee 12 made as to that we allow questions to be asked but if they do 13 not choose to answer those questions, I would certainly go 14 along with that. 15 COMMISSIONER KIRKMEYER: That would be their choice. 16 CHAIRMAN WEBSTER: That would be your choice and if 17 you feel that you do not want; or anybody that's going to 18 testify do not want to answer the questions, in my mind that 19 is a privilege that you have today. 20 COMMISSIONER KIRKMEYER: And I would agree with 21 that. That would be their privilege or their right to either 22 answer the question or 23 CHAIRMAN WEBSTER: Somebody calls it the Fifth 24 Amendment, but I don't think we need to go into that. 25 COMMISSIONER KIRKMEYER: I guess they don't have to 79 940322 1 answer them, but I think we can allow Mr. Chilson to go ahead 2 and ask his questions as long as it's done in a professional, 3 courteous manner. 4 CHAIRMAN WEBSTER: I think so. 5 MR. CLAGETT: It was my understanding that this 6 would be very much like the Planning Commission Hearing. 7 That' s what I walked in here thinking. They would make their 8 same set of words, we would say the same things, and it would 9 be up to you people to make the final decision and, in this 10 charade. I don't have my lawyer here today, and I 'm not going 11 to get myself into a jury, a trial situation. That's what Mr. 12 Chilson would like to make this, a trial . I 'm not 13 participating in a trial and with five judges and a bunch of, 14 you know. There are a bunch of people here that want to make 15 their statement about how they feel about this . I told you 16 how we feel about it, why, and we' re the property owner to the 17 west that' s going to be most affected. Now, that 's all I 'm 18 going to say. We' re against it. We hope you reject it. Mr. 19 Brehm would like to follow me. 20 CHAIRMAN WEBSTER: Are there further questions of 21 some board members? Mr. Chilson, do you have a question to 22 ask? 23 MR. CHILSON: Yes I do, I have questions of Mr. 24 Clagett. 25 CHAIRMAN WEBSTER: It's your privilege to answer it 80 940392 1 or not. 2 MR. CLAGETT: I 'm not going to answer Mr. Chilson 's 3 questions . 4 COMMISSIONER KIRKMEYER: Okay that 's fine. Could we 5 hear your questions? 6 MR. CHILSON: Alright, then I renew my offer of 7 proof which I stated before that had Mr. Clagett seen fit to 8 testify in all fairness to the applicant, he would have 9 testified 10 COMMISSIONER HALL: We've already, we've already 11 really heard this so we don't need to reiterate and repeat it. 12 MR. CHILSON: That he would have testified in 13 accordance with my previous offer of proof. Okay? 14 CHAIRMAN WEBSTER: We've heard that. And what you 15 need to do is keep a record of that and at the end of when we 16 call upon you to give your comments, rebuttal comments, you 17 can include that. But as far as this witness, you've already 18 explained that. 19 MR. CHILSON: I have. And my record of proof is in 20 this microphone and I will make the record of my offer of 21 proof after each witness. 22 CHAIRMAN WEBSTER: Yes . 23 MR. CHILSON: So that we're clear on it. 24 CHAIRMAN WEBSTER: Thank you. Yes? 25 MR. BREHM: Hello, I 'm Don Brehm and this is my 81 9403'' 2 1 wife, Valeria, and we live at 2010 Highway 60 . We' re the next 2 property to the east of this 80 where it was divided. And if 3 we wanted to go into this cross-examination we should of hired 4 us a lawyer and come to cross-examine them the same way. And 5 we feel that that is inappropriate at this time. So I want to 6 MS . BREHM: We live at this house, right here. I 'm 7 Valeria Brehm. We live in this house right here on Highway 60 8 and this is our son which they have way down here on the road, 9 which is up here a little further. 10 MR. BREHM: We brought a picture with. This is our 11 farm right down here in the corner. 12 COMMISSIONER HARBERT: Wait a minute, we have a 13 problem. 14 MR. MORRISON: Mr. Chairman. 15 CHAIRMAN WEBSTER: We've got a problem here. 16 Anything shown to us is evidence and we'd confiscate that 17 picture pretty quick. 18 COMMISSIONER KIRKMEYER: I don't think you want us 19 to keep your picture. 20 MR. BREHM: Well I can't let it for evidence. 21 MS. BREHM: We cannot let it go, we can't let it go. 22 CHAIRMAN WEBSTER: And I don't think you want to do 23 that. So you just describe your property and we' ll say we 24 didn't see that and so it will not be used as evidence please. 25 MS. BREHM: Well we wanted to show you the lake part 82 9403'12 1 and everything. 2 CHAIRMAN WEBSTER: But I will say it looks like a 3 beautiful picture. 4 MR. BREHM: Okay. Well, our farm is on the corner 5 of County Road 5 and Highway 60 . Our place, my grandpa bought 6 it in 1918 . He built the house there. My dad bought in '47 7 and now I 've got it. And it's been 76 years in our name. And 8 that' s the property to the east of this and then you go, the 9 next property south where this here "H" is, is the Carlson 10 property. And that's the same way, that place is 160 acres 11 and that's been way back around the same time that they bought 12 that property. Then you go across the south end of the 13 property, that's Roy Peterson' s farm. Same story, it's way 14 back, 50, 75 years ago, that's 240 acres over there and it's 15 never been sold in its time for the last 50, 75 years. And 16 then the Gentry farm where he just got done talking, is to the 17 west and that's the same story, it 's never been sold. And 18 then across the road to the north is the Salsee and Steve 19 Olander farms it, that's Dick Salsee's grandson now. Same 20 story. You can go all they way around this place and all the 21 properties has been owned for at least 50 to 75 years, never 22 have been sold out of there. It's a farming community. 23 And I want to just make my statement that while 24 Ivar, when he first submitted this, this is what he said to 25 the Planning Commissioners that Ivar and Donna, this is quote 83 94032 1 from them, "Ivar and Donna Larson have owned this property 2 since ' 72 and have continuously farmed it. " That is not so . 3 They've owned it since ' 72, but in ' 72 Ivar come to me and 4 asked me if I would farm this property, and at that time I 5 said I would. And before it was broke up into tracts, until 6 it got built on, it grew into weeds and everything and it was 7 run down when he got it. And we farmed it a year or two and 8 then at that point we give it up because it was just so run 9 down it wasn't profitable. Then at that point he went to 10 Markhams which are two miles south of this property, and asked 11 them to farm it and they farmed it up until ' 78 . Then in 1978 12 Ivar came back to me and he said, "Would you consider farming 13 this property", and I said, "If you would do one thing, if you 14 would supply the gated pipe on the top end of the farm and 15 through the middle of this place, and I will take my leveler 16 and tractor and pull ground up to the top of this property so 17 we could irrigate this, make this farm, irrigate a half a mile 18 rows they were made to at that point. And the property slopes 19 to the north but it has more slope to the east. That' s why 20 you need a gated pipe. If you irrigate it out of open ditch, 21 you had to work yourself to death in order to irrigate this 22 property. And with gated pipe it made it very simple to 23 irrigate and making these rows a half a mile long made it very 24 simple, whatever you done with it. And the ground, you can't 25 beat it. 84 9403412 1 But when I first started farming that in ' 78, the 2 corn was under a hundred bushels, that 's the way it was run 3 down. And we ended up farming it for twelve years up until 4 ' 89 and in ' 88 and ' 89 the corn made 162 bushels one year, 152 5 the other year, and it was sold as high moisture corn. And at 6 that point you can see how far we come on the place. But the 7 place still has potential to produce more than that even 8 because, the reason why is ever year Ivar will come and say, 9 "Either I 'm gonna sell it or I may start my son out farming, 10 or I may subdivide it", so you really wouldn' t put any extra 11 fertilizer on this ground. You just put on enough to grow a 12 crop that would make it profitable. 13 And then also in his statement that he had, this is 14 quote again, "Any spraying to control weeds or insects is 15 virtually impossible due to the proximity of houses and 16 horses . Aerial spraying is impossible. It' s got, well I 17 farmed it twelve years and there was never a problem with 18 aerial spraying, and I sprayed it myself I don't know how many 19 times. As long as you spray it when it's calm, there's no 20 problem spraying there. 21 Okay, in 1990 Ivar came to me and he says at that 22 point, "I 've decided to start my son out farming" and he 23 wanted the place back so I said, "Fine" . But that must have 24 not worked for him because in 1991 he turned around and rented 25 it to Agri-Pro. They grow seed barley. In 1992 and '93, he 85 940 ^2 1 put this into alfalfa and grass and it's, it worked out that 2 we had the rains at the right time and he got a wonderful 3 stand. 4 And on the south end of this property is the Home 5 Supply Ditch and the way alfalfa roots down deep, and with 6 this ditch, this ditch is about thirty feet across and the 7 water' s about six foot deep in there and there' s a check right 8 there to slow it down, so it makes this property sub-irrigate 9 very well. And he has not irrigated this place in the last 10 two years himself, and it just sub-irrigates from this ditch 11 and the alfalfa does wonderful . This spring he pulled in my 12 yard and after he'd got the first cutting of hay off of it, 13 and that was this spring, he took 99 bales . They're four foot 14 by four foot by eight foot bales, there's approximately a ton 15 to a bale, he took 99 bales, there's 23} farmable acres . 16 Donna said 23 .2 or what, but the ASC office had it quoted at 17 23} , that' s what I based it on. And you take 99 bales divided 18 into 23} , that's over 4 ton of hay in one cutting. Then he 19 took two more cuttings and I don't know exactly how many bales 20 they made, but second cutting he hauled off, there was a 21 tremendous amount of hay. The third cutting the same way, he 22 hauled some off and he stacked some there. But I know this 23 property had to produce at least ten ton of hay to the acre 24 this last summer. And there isn't too many places in Weld 25 County that can do that and you can see how good of soil this 86 9403°2 1 is . 2 And another thing, before this place was ever broken 3 in any tracts it was an 80-acre piece of land. And on this 4 land is this lake and about twelve years back it was decided 5 to file on this lake and there was two property owners on this 6 80-acre piece of ground that has the lake on their property so 7 they was involved on this lake and it 's right now, John DeMott 8 owns one property and Larry Stark owns the other property. 9 And then to the north, Steve Olander on the Salsee Farm, 10 they've taken water out of this lake all the years, so they 11 was involved in this lake and then myself, where the part of 12 the lake is on our land, so there's four people that is 13 involved in this lake when it was filed on. And at that time, 14 it was determined that about 99% of the water that comes into 15 the lake comes from underground water. And beings that 16 there's that much underground water, the court system here, 17 the water court system, said that GASP out of Fort Morgan that 18 has control of the underground water, would enter into this 19 and they'd call this a well . This reservoir is called a well 20 in their eyes, just because it's all underground water. And 21 it has a capability of producing a hundred acre feet of water 22 a year. So you can see there's a lot of underground water 23 that flows underground there. 24 Now, if you let all these houses being built there, 25 they're going to end up, my way of thinking, the septic 87 940312 1 systems and when you start water underground, it's gotta go 2 down. It' s gonna go down to hit this underground veins and 3 it' s gonna end up into the lake. Like I said, most of the 4 slopes slope to the east. Sure, it slopes to the north, but 5 most of the biggest slope goes to the east towards this lake. 6 So you get all this pollution and there's cattle that feed 7 around this pasture around the lake and sheep and horses, plus 8 irrigating. Now anybody that, out of us four that irrigate 9 out of that lake, to draw any water, we all have to pump out 10 of this lake. It will not run on its own. It 's the lowest 11 point on all that there ground. It has to be pumped out of 12 there. 13 CHAIRMAN WEBSTER: Could you kind of keep with what 14 the problems are as to this property suggested to 15 MR. BREHM: Well, in that first hearing, he was 16 stating 17 CHAIRMAN WEBSTER: I mean, I appreciate the history 18 and everything 19 MR. BREHM: But he was stating in the first hearing 20 that this ground was so poor that's why he had to go into a 21 subdivision, is why I 'm saying what the production is. And 22 now, Ivar has not irrigated the soil in the last two years and 23 then in January, he took his own perc tests and now they 24 really aren't to be accurate at that time. In the middle of 25 September, this Home Supply Ditch shut off, all the farmers 88 940302 1 were done irrigating at that point, so you see this ground, 2 the underground water finally drains out and it becomes dryer. 3 And he did not irrigate this place for two years so I don't 4 see how these perc tests can be accurate at this time. If he 5 would take and wait till the middle of next summer when the 6 ditch is running, then it would be a different story. I know 7 he would get a way different result in his perc tests . 8 Now, on the first hearing, I never heard a mention 9 today, but at the first hearing they said they was going to 10 put an underground pipeline with risers to each tract. There 11 was not the mention today. Are you still going to do that? 12 COMMISSIONER KIRKMEYER: They can answer that after 13 everyone. I would hope you would just keep track of that 14 question. 15 MR. BREHM: Well, this is where my next point goes . 16 If that is so, right now there are six tracts where six people 17 get water from one headgate. If you turn around and let this 18 go into, put this under irrigation, put nine more houses that 19 are going to add, and Ivar already had one parcel where he was 20 included in this headgate, so there's eight new people. So 21 that makes fourteen people out of one headgate. And that's, 22 they' ll all be weekend farmers, they'll want to irrigate on 23 the weekends. You 're gonna have a real problem. 24 When I first started farming this in ' 78, I started 25 irrigating corn and at that point Dennis Kuehl, he come in 89 9403C2 1 with water the same time that I was . And there's really not 2 a way to divide water on this place very good. And always 3 when you divide water, somebody feels they get the short end 4 of the stick. And at that point, Ivar went to Dennis and he 5 says, being as I 'm the biggest land owner of this 80 acres, 6 that I have first priority of this headgate, and when I 'm 7 irrigating you cannot irrigate. And I knew that wasn't right 8 because I know everybody's got the same right to that 9 headgate. But from that point on, I tried irrigating during 10 the week so he would have the weekend to do, these tract 11 owners would have their weekend to do their irrigating. Now 12 if you' ll look back on what I said, Ivar really doesn't even 13 know when he farmed the place and the way he takes the perc 14 test, it isn't right, it makes you wonder what else he's got 15 up his sleeve. 16 A few days before the Planning Committee hearing, 17 Ivar pulled in my yard and he asked how I felt about this here 18 division and I told him, you know, I 'm against it. And at 19 that time he was trying to sweet-talk everything was so good. 20 And then before he left he said, "I want to take and I want to 21 know what the production records have been out of the place. " 22 And I says, "Ivar, you got the same records as I do. " "Well, 23 I still want to know what you say they are. " So he said, 24 "I ' ll call you in a few days ." Well, the next evening here he 25 called and he asked what they were, and I told him and at that 90 940:x..2 1 point he goes "BS" and I says, "Ivar, I don't need to take 2 this", and I hung up the phone. 3 CHAIRMAN WEBSTER: I ' ll tell you what, this is 4 really not very pertinent testimony to the subdivision or the, 5 I appreciate the 6 MR. BREHM: Why, this is all farming country and he 7 made it sound like this property couldn't produce ground to 8 make a profitability and this ground is some of the best 9 ground around. 10 CHAIRMAN WEBSTER: Well, I appreciate your comments . 11 I 'd like to ask you a quick question. What year was that that 12 it was in hay that it made 10 ton to the acre? 13 MR. BREHM: Last year. 14 CHAIRMAN WEBSTER: Last year? And you said that he 15 hadn't irrigated for the last two years? 16 MR. BREHM: The last two years, not a drop of water. 17 CHAIRMAN WEBSTER: So it's sub 18 MR. BREHM: It sub-irrigates . 19 CHAIRMAN WEBSTER: It's sub-irrigated and it's sub- 20 irrigated from that ditch you said, a half a mile? 21 MR. BREHM: Well, at least the south end of it and 22 he don' t irrigate the north end of it either and it gets down 23 there. 24 COMMISSIONER KIRKMEYER: And all those obser, those 25 are just observations, you've observed that or 91 94032 1 MR. BREHM: Well I farmed it, I know. 2 CHAIRMAN WEBSTER: There isn' t a head ditch up on 3 the east side, or the west side that because of the no water's 4 carried along the ridge on the west side on the property at 5 all? 6 MR. BREHM: The west side there 's a Home Supply 7 canal that goes there, but it's cemented. 8 CHAIRMAN WEBSTER: It 's a lateral off the 9 MR. BREHM: It' s a lateral off the main Home Supply 10 but it's cemented. Now, this dirt ditch that comes from the 11 other, they call that the Lake Ditch. That's an open dirt 12 ditch where this 13 CHAIRMAN WEBSTER: I think that was what I was 14 questioning. That seems amazing that that hay could produce 15 that without being irrigated. I don't know too many farms 16 that's going to produce ten tons of hay. If that 's what your 17 feeling is 18 MR. BREHM: Oh, I don't know too many farms either. 19 They got pictures of this, they got pictures of this 99 bales 20 the first cutting. 21 CHAIRMAN WEBSTER: Well, I can probably see that 22 possibly. Thank you, and are there any other questions? 23 COMMISSIONER BAXTER: Mr. Chairman, I 've got one 24 that I think I would ask anybody that lived out there. I did 25 not ask the former witness because he does not live out there, 92 940302 1 but just looking at this, you've got people who are living in 2 those tracts along up and down west of the lake, you've got 3 what, two houses there, they were added some time in the 4 recent past? 5 MR. BREHM: Our son lives in this one house right 6 here. 7 COMMISSIONER BAXTER: I mean the west side of the 8 lake. Those parcels there, the other parcels , the long 9 parcels, these were all divided off some time in the recent 10 past? 11 MR. BREHM: It was a 10 and 15-acre parcel is all . 12 UNKNOWN: 1973 . 13 COMMISSIONER BAXTER: My observation is that there 's 14 a number of them, I guess I need your reaction to it. There's 15 a number of those, there are several and if you, there seems 16 to be no problem adding two more. You see we'd go along with 17 two more. You have all those in that area with potential to 18 drain into that lake if that indeed happens . And did you or 19 the surrounding neighborhood, oppose those when they went in? 20 Were you against those? 21 MR. BREHM: We didn't even know that went through at 22 that time. Nobody knew about it in our neighborhood. 23 COMMISSIONER BAXTER: So the three or four of these 24 were added without the neighborhood even knowing about it? 25 MR. BREHM: Well, there's two, this 15-acre and this 93 940312 1 10-acre are their property. 2 COMMISSIONER BAXTER: The one on the west side, the 3 long one at the top was too? 4 MR. BREHM: The, which one? 5 MS. BREHM: These two? 6 COMMISSIONER BAXTER: Those two or the one to the 7 west, the long one, was it added? 8 MR. BREHM: Well, at that point, that' s when the 9 place was first broke up. Ted Elig bought it at that time and 10 we knew it was going into housing and then Ivar bought this 25 11 and that's how he divided and I don't think anybody opposed it 12 that I know of at that time. 13 COMMISSIONER BAXTER: Your contention is that Ivar 14 divided off part of this, is that true? 15 MS. BREHM: No. 16 MR. BREHM: No, he didn't divide off. 17 COMMISSIONER BAXTER: Oh, I misunderstood you. I 18 thought you said, well, Monica do you know when it was divided 19 off? 20 MS. MIKA: I can roughly tell you that it was in 21 1973 that the Kuehl 's property, I believe, which is the 22 property, I think that was around 1973. I think where he's 23 talking about dividing is because the Larsons originally 24 purchased a 25-acre parcel and then did their recorded 25 exemption. I believe that that's what he was talking about, 94 9403 ?2 1 but 2 CHAIRMAN WEBSTER: Okay, further questions? Thank 3 you very much. I appreciate it. 4 MR. CHILSON: The record can reflect that I have no 5 questions of Mr. Brehm. 6 CHAIRMAN WEBSTER: Yes, so noted as they say. Next 7 please. 8 DENNIS KUEHL: My name 's Dennis Kuehl, 1850 East 9 Highway 60, Loveland. And for all practical purposes, I 10 probably get the most impact of this kind of subdivision. So 11 what I 'd like to do is pull out my two overheads that we sent 12 as records to Weld County at the time we heard about this 13 subdivision. 14 COMMISSIONER KIRKMEYER: And can you show us real 15 quick where you live on this map? 16 MR. KUEHL: Sure, and I ' ll do that in just a second. 17 I 'm the person that has the long driveway. Okay, so this 18 piece right here and this parcel belongs to me. And Jean is 19 my wife. We purchased that in 1977, okay, and when we 20 purchased that property out there, we were aware these 21 subdivisions were there, okay. And one of the main reasons we 22 purchased out there at that time is because we were in fact 23 aware that that was the kind of subdivision that was 24 occurring. So that's just kind of a good starter. In all due 25 respect to Mr. and Mrs . Larson, I am here to oppose this . 95 940302 1 There ' s just no question about it because it does impact me 2 worse than anything else and the difficult part of this is 3 that I did not expect this to be this kind of a thing. I 4 expected it to be a public hearing and I, certainly having Mr. 5 Chilson here has been intimidating to all of us . That ' s been, 6 but not surprisingly so. On forward, okay. 7 I made a request to the county commissioners about 8 1988 to do a subdivision and actually what we did is we 9 adjusted a boundary line. At that time the county 10 commissioners were very concerned about subdividing this 11 property any more, okay. They just, they, and that's what 12 they were worried about, is that we were going to make smaller 13 lots out there. And frankly, from my point of view, I 14 appreciated that stand because it assured me that the space 15 that I bought into was the space that was going to basically 16 stay there, that the property lines were not going to be 17 adjusted, especially not having nine homes out there along my 18 driveway and my property line. Okay? And I can tell you that 19 the land owners feel that way today. They understood that it 20 happened and there isn't anybody here that did not expect the 21 Larsons to build two homes on there. As a matter of fact, I 22 would not be surprised if I have a home built right by my home 23 so that I cannot see Longs Peak. I would almost expect that 24 that would have happened. And there's a lot of good reasons 25 for doing that and one reason for us, of course is that it 96 9403'12 1 kind of affects our view. But we have been anticipating that 2 all along. We certainly did not expect that we'd have to put 3 up with nine homes out there and that 's what we're really 4 dealing with here, is the Comprehensive Growth Plan that does 5 that. 6 This diagram shows the lot sizes and basically the 7 average lot size out there is 11 acres. If you go by the 8 testimony that Donna gave this morning, that Mrs . Larson gave 9 this morning, then in fact what would happen is if you put the 10 lake in there the average lot size would still go down to 11 about 8 acres . So going to 2} acres is significantly 12 impacting this whole area and that's basically what we're 13 saying. And it really doesn't make any difference whether 14 they put the road on our property or whether they put the road 15 next to our property, you can see the impact that we're facing 16 by having nine homes . Our home sits right here. Certainly 17 anticipating one home to be there would be one thing. But now 18 all of a sudden, we're looking at the possibility of having 19 two, four, six, eight vehicles driving by our homes every day, 20 okay. Now, if any good 21 acre farm owner or land owner were 21 to move in there, I mean if it's anything like it is in town, 22 not only will you see two cars, but you' ll probably see a 23 pickup and trailer because they're going to have a few horses 24 or a few calves or a few pigs, and the other thing if they 25 don't have that, what they are going to have is they're going 97 9403'12 1 to have one of those big campers that they' re going to have to 2 be driving up and down those roads . And that 's what we' re 3 concerned about. We 've just, this is a high density proposal 4 that should be located in an urban growth area. Mrs . Larson 5 did say that we suggested putting in four lots there. 6 Certainly we 'd be a lot more encouraged about that kind of a 7 deal . Bottom line is, is that if you approve this 8 subdivision, shouldn't all the owners in the existing parcel 9 be able to subdivide into 2j acre lots? And if that 's the 10 case, shouldn't those land owners be incorporated into this 11 whole subdivision, and shouldn't we make an 80-acre 12 subdivision out of it, and then make sure that we have the 13 appropriate water, the appropriate public service, the 14 appropriate telephone? That's what we're dealing with. We 're 15 not dealing with nine homes, you're dealing with the potential 16 of subdividing and subdividing. The Enid acreage was 17 mentioned. Notice it was ten acres, it wasn' t 21 . The 18 subdivisions in Larimer County next to us - 7, 8, 10, 15 . 19 They're not done in 2} acre lots . That's high density growth, 20 and that's done close to a community. 21 CHAIRMAN WEBSTER: Are there any questions for this 22 gentleman? 23 MR. KUEHL: I 'd just like to say that the Little 24 Thompson Water District, when I talked to them, and this is 25 hearsay because I didn't get it in writing, okay, they are 98 940392 1 concerned about the water pressure out there and they know 2 that over then next couple of years they do have to do some 3 work out there. I was assured by the manager or the assistant 4 manager of Little Thompson Water District that they were 5 trying to build that into their proposals, but I 'd, and I 6 didn't get it in writing and so it does become hearsay for Mr. 7 Chilson if you 'd prefer to have it that way. The other thing 8 is that I do know that the telephone company is having trouble 9 putting phones in that area, okay. I 'm sorry, I did not get 10 that in writing and so I don't have a written statement to 11 that effect. I did not, I just didn't anticipate this kind of 12 a situation. Enough said. Questions? 13 CHAIRMAN WEBSTER: Questions from anybody? George? 14 COMMISSIONER BAXTER: I guess I just need to follow 15 up because you are there. Did you have to put in an 16 engineered septic system? Did you have a water problem? 17 MR. KUEHL: Yes, I am aware that there was an 18 engineered septic system put in for our home and frankly we 19 purchased the home after it was put in there and that's what 20 I was assured of, was that it was an engineered septic system. 21 COMMISSIONER BAXTER: You have no knowledge of 22 whether it was water table level, or table level that caused 23 that or whether it was something else? 24 MR. KUEHL: I do not. I can tell you that as I do 25 fence post holes in that area, because I am constantly putting 99 940312 1 in fence and that sort of stuff, that the water table runs at 2 a level from three to five feet depending upon the time of the 3 year. There are times when I can put in a fence post at 5 4 foot and I will not have too much water, and there are times 5 when I just cannot do it. I do get water. 6 CHAIRMAN WEBSTER: Any further questions? 7 MR. KUEHL: If it would be of any help to you, one 8 of the reasons we objected to having the road put in on our 9 property was initially the water line and the public service 10 line and were put in on this boundary and I ' ll show it to you 11 quick. So it would be right, I mean if they were to build a 12 road in there, they would be putting it right over our water 13 line and right over our gas line and that was a major concern 14 to us . Secondly, I ' ll be honest with you, the traffic on that 15 road, we wanted that road as far away from our house as we 16 could possibly have it. Thank you. 17 CHAIRMAN WEBSTER: Questions? 18 MR. CHILSON: I have no questions of this witness, 19 thank you. 20 COMMISSIONER KIRKMEYER: Wait just a second. I have 21 some questions about the access. You have that long access 22 right there? 23 MR. KUEHL: Yes, we do. 24 COMMISSIONER KIRKMEYER: Okay, and so do you have an 25 access permit to the highway? 100 940392 1 MR. KUEHL: It was put in before that was necessary. 2 COMMISSIONER KIRKMEYER: So you don' t have an 3 access . 4 MR. KUEHL: The Colorado Highway Department 5 identified that as an access when they put the access in for 6 the Larsons and that is 7 COMMISSIONER KIRKMEYER: And so your access is 8 adjacent to the access to these other nine properties? 9 MR. KUEHL: Yes it is . 10 COMMISSIONER KIRKMEYER: And has the access that 11 they planned, will that change your access at all? 12 MR. KUEHL: We were assured it would not. 13 CHAIRMAN WEBSTER: Any more? Thank you. Yes, next 14 comment. 15 STEVE OLANDER: I 'm Steve Olander. I live at 3853 16 East County Road 14 which is right across the road from the 17 proposed area. I farm. We farm about 900 acres in the area. 18 Why should my right to farm be jeopardized? This parcel is 19 already established in two parcels and I know that there have 20 been at least two very generous offers made on this property. 21 One was by Mr. Brehm and another was by Mr. Kuehl in excess of 22 $6,000 an acre. That was before, prior to these years of, oh 23 it's at least two or three years I know, that at that time was 24 way above market. Currently, some of the farms have been sold 25 in our area right around way too damn high, but they're $4,000 101 9403'72 1 an acre. So, the other, you know, Mrs . Larson has been 2 talking about covenants and how the homeowners and all this 3 stuff would be so nice. I was fairly disappointed when they 4 put their access in. The drive was placed, well, my house 5 sits about where that "A" is on Highway, and that access is 6 right across from my home and the, just from the few people 7 that have come in and out when they've been over there, the 8 lights go directly into my living room. I had to move my 9 mailbox which sort of torqued me off, because my mailbox has 10 been there, because I 've got some old photos from pre- ' 50 ' s, 11 some aerial photos, and that mailbox has been there since then 12 and I had to move it and that sort of, you know I was told 13 that I either moved my mailbox or I didn't get mail anymore. 14 So I find that there wasn't any consideration for the 15 neighbors, mainly me, and it was just you know, and maybe it 16 was an oversight on everybody's area, but I think it would 17 have been nice, they could have moved, instead of having the 18 access here, they could have moved it over here or something. 19 I don't know, but I don't know why they had to put it right 20 across from me. I guess my point is that the Larsons have 21 failed in my opinion to try and work with the neighbors and my 22 concern is that I will not be able to continue to farm as I 23 currently am doing and I try to follow all state standards and 24 EPA rules . 25 And another problem I have I guess is all these 102 940312 1 areas there' ll be homes and with every home there 's a driveway 2 and with every driveway there' s a road and with every road 3 there' s blacktop or oil or whatever, which no longer 4 percolates moisture when it precipitates . There' s no plan 5 anywhere in there for a drainage retention pond and I 've seen 6 that whole area here under water. Because I take all the 7 water, and if this road' s high around here, and the only way 8 for all this water to release itself is I take all the waste 9 water through my farm there and that's a small, it's not a 10 well-engineered culvert underneath Highway 60 . And if I have 11 to take all that, well that's a lot of water. I mean that 12 takes my ditch out down below there, it runs a half mile and 13 we can, I 've had to do a lot of dirt work down there just from 14 different times it's rained because it's washed the ditch and 15 we've started a gully. 16 There' s also two large dairies in the area and one 17 hog facility within a mile and a half of this proposal . In my 18 farming operation, I spread manure on all of my ground and all 19 of my ground is to the north. I mean, my main home ground 20 there. I 've got 280 acres that we farm to the north there and 21 then as Mr. Clagett was saying, there's a fellow that rents 22 his ,place, I spread manure for him also. The wind is 23 generally out of the north so I know we're going to faced with 24 an odor problem from the nine homeowners here. I really hate 25 to see this happen. You know, once we start this, it's going 103 9403?2 1 to grow like a cancer and it 's just forcing those of us who 2 wish to work the land and we' re driven out because of higher 3 taxes and more traffic on these areas, you know they' re 4 showing all these homes there, but those homes, as Mr. Brehm 5 had stated, the homes on all the north side there, they've 6 been there since probably, I don't know. I was working on my 7 barn and I found slabs from 1918 when it was rebuilt, so I 8 know the homes have been there longer than that. And that I 9 would assume, I don't know, my grandfather bought it in the 10 ' 30 ' s, but I would assume that's why those houses were so 11 close together was because somebody was a sister and they 12 wanted to be there. And this other home over here is my 13 folks ' , the farthest one to the west. So that's the farthest 14 one, and the middle home here is a labor house of mine up the 15 road about half a mile and this other little home, I used to 16 live there when I was younger, but it's just a small home to 17 the back. But all those are on property that I farm. 18 I have no problem with two houses . I 'd really, I 'd 19 rather see no houses but I don' t have a problem with two. As 20 far as the high water table goes, I have an alfalfa field 21 directly, well I have a field that runs right here, I have a 22 25-acre alfalfa field there. I don't irrigate it either 23 because it sub-irrigates . I also know that all this ground, 24 this is what my grandpa, he worked with Mr. Hanson and Mr. 25 Gentry and all this ground has been piled for water. And 104 940392 1 those piles are approximately 4 foot deep. And there 's 2 fingers that run off everywhere, that run clear up into this 3 farm, that ' s tiles and into the Gentry farm and they all meet 4 and they run down, oh, another half mile and they hit the 5 ditch called the Guard Ditch and that's where all this water 6 ends up in. My concern there also is that as far as non-point 7 source pollution, it is becoming a larger problem, that even 8 with septic tanks, and I know where that water's going to go, 9 someplace it' s going to hit a tile and I 'm at the lower end of 10 the receiving end of all this . I feel that there could be a 11 problem at some point in time with that. And I guess one of 12 my closing statements would be, as our forefathers have 13 generated new wealth for this entire area through water 14 development and farming, and is Mr. Larson's or my birthright 15 to rape the land for greed, having nothing to do with the next 16 generation? I ask what new wealth is being generated for 17 coming generations from the project, from this project for 18 future generations . Would there be any questions? 19 CHAIRMAN WEBSTER: Thank you. Are there questions 20 for this gentleman? 21 MR. CHILSON: I have no questions . 22 CHAIRMAN WEBSTER: Thank you. 23 MIKE McENTEE: I 'll try to keep this short. Mike 24 McEntee, I live at 1842 East Highway 60. I 've got the 25 property just below the Kuehls to the north and border the 105 940ac:^2 1 Larson' s land there on the east. Dennis Kuehl had made a 2 statement when he was first up here that he was probably the 3 most impacted with this development going in and I kind of 4 agree with him, but as you can see by the location of my 5 property, Dennis had mentioned that he was going to have four 6 homes generating eight cars coming down by his house, well I 7 just collected his eight plus the other five and now I 've got 8 all the traffic going beside mine. So, two cars per 9 household, that's eighteen vehicles making two or three trips . 10 I just as well put plastic over the windows and cover it all 11 up because it's going to be one hell of a dust storm out 12 there. So my major concern with what provisions that have 13 been put in front of us in order to deal with the access to 14 and from this property, it's definitely not going to work for 15 us or the Kuehls for sure. 16 One other thing that I wanted to mention and Mrs . 17 Larson had brought this up at the beginning, and she kind of 18 made me believe or was trying to lead me to believe that all 19 this property down in here and all these tracts are, you know, 20 a couple people that have nothing else to do but come out and 21 grow some vegetables on the weekends and maybe, you know, feed 22 their dogs and cats and have a horse. Quite honestly, every 23 piece of ground there with the exception of one, is currently 24 grows a crop of some kind or another. There is alfalfa and 25 grass being cut and baled and stacked every single year off of 106 940392 1 every one of those pieces of ground. And we 're self- 2 sufficient and we' re all raising horses or cattle or sheep in 3 that area and we're growing some crops to try to make the ends 4 meet to cover that, so to think that's all just pasture land 5 and there' s a horse sitting out in the pasture, that's not 6 correct and that' s not the perception I want you people to get 7 today. It's productive land and we're raising horses out 8 there, we're raising cattle, we're raising sheep and we 're 9 growing some crops out there to help feed them. So I just 10 wanted to make that point. 11 CHAIRMAN WEBSTER: Thank you. Questions? 12 MR. CHILSON: I have none. 13 COMMISSIONER HARBERT: I guess I might have one, 14 sir, Mr. McEntee. The groundwater table, we talked about that 15 before. What could you tell us on that end, what the 16 groundwater levels might be and do you have any headaches from 17 high water, or 18 MR. McENTEE: Well, let me tell you, I 'm the newest 19 person to the area. I 've lived there just now a year and just 20 went through my first year of irrigating my piece of ground 21 and putting in my first crop of hay as well . And what you 22 just heard a moment ago about the north end of there and not 23 being able to get water across that road, is very true. The 24 irrigation waste water ends right up in the bottom of my land 25 there next to the highway and the gentleman that lives just to 107 940322 1 the east of me, his house ends up catching that water right in 2 his foundation and yard. So I have to be extremely careful 3 with the way I run my water because I can' t catch the waste 4 and get rid of it and it's a flood zone down there along the 5 highway. So if we have the nine homes go in and if they do 6 have irrigation water rights through there, I don't know where 7 the water's going to go. I 'm going to collect half of it in 8 the pasture and Mr. Stark next door to me is going to collect 9 the rest of it in his foundation in his house. 10 COMMISSIONER HARBERT: Thank you. 11 CHAIRMAN WEBSTER: Any more? Yes . 12 JEAN KUEHL: Jean Kuehl, 1850 East Highway 60 . I 13 would like to just take a few minutes to show you some slides 14 of the area. I 'm sure most of you haven't had a chance to do 15 a site visit since that's kind of time consuming. So just to 16 give you a little feel for the area, 17 COMMISSIONER KIRKMEYER: You realize if you show us 18 those slides, they would become an exhibit and become part of 19 the public record and we' ll keep them. 20 MS. KUEHL: They were. That' s fine they already 21 were from the Planning Commission. 22 MR. MORRISON: They already have. 23 COMMISSIONER KIRKMEYER: Okay. 24 MS. KUEHL: Okay, we're first looking from the 25 south. This is a picture of the Larson land with hay down 108 940392 1 last summer. We took these slides last summer when we first 2 started being concerned about this problem. This is another 3 view close to our home. This is the long driveway that you've 4 heard referred to and then the ditch right on the borderline. 5 This ditch is, on many sides of this property, is burned to 6 get it ready for irrigating and it seems as though homes on 7 small acreages will be bumped up much closer to the sides of 8 land. We 've already had some problem with burning each 9 other' s buildings down occasionally and I think that problem 10 would probably be made a little worse with real small acreages 11 like this . Here 's a picture of the hay production. I believe 12 this is the 99 bales that Mr. Brehm referred to earlier from 13 the Larson land. Another slide of that. Then I 'd like you to 14 just first look south and then we're going to kind of look all 15 directions from around the 80 acres and see a little bit of 16 what' s in the 80 already, to see the crop production there. 17 This is, of course, a cornfield looking straight south of the 18 big ditch that runs along the south side of the Larson 19 property. This is the east-west ditch on their south border. 20 You can see these are big, main artery ditches, not little 21 shallow water, so they're somewhat of a hazard for children in 22 the area. North of the ditch is sugar beets that year and 23 west of that, more corn growing. This field is directly west 24 of the Larson land. This last year was under alfalfa 25 production and northwest of the Larson land, this is the same 109 940W)2 1 alfalfa field that also shows the small acreage and the home 2 that Mr. Clagett referred to which Mrs . Donna keeps calling a 3 daycare, Mrs . Donna, Mrs. Larson keeps calling a daycare 4 center. It is actually a home with home daycare. She cares 5 for, I think three or four children in her home; it's not a 6 commercial center. The owner of that also said it was 7 approximately two acres and too small to be useful and he's 8 hoping to be able to buy some land to go with it someday. 9 Okay, this is Highway 60, so on the right you're seeing some 10 of Steve Olander's farm north of the Larson property. And 11 this is his production field last year, harvesting. The 12 Olander farm place as seen looking north, and more of his 13 buildings and farm equipment on the north of 60 there. Okay, 14 this is Mr. Brehm's property, the farm directly east of Road 15 5 and this is, again, surrounding the 80-acre subdivision. 16 Okay, this is some of Mr. Brehm' s production last summer as 17 he's harvesting. 18 You can see this is not small cropland around and 19 with all these crops growing in this area, we have crop 20 sprayers every morning. I wake up to a crop sprayer in the 21 summer. I 'm a teacher so I 'm home in the summer. They wake 22 me up early even though I don't have to go to work, and I 23 don't mind that but I talked to one of the crop sprayers in 24 the area and he was concerned about so many urban-type people 25 out in the country and such dense housing. He said they 110 940.32 1 complain, they get calls from these people about the smell, 2 the danger of the spray, the noise, and he 's really opposed to 3 a lot more urban-type housing going in these areas . This is 4 the lake that is straight east of us and you can see Mr. 5 Brehm' s property east of the lake there. The DeMott' s land, 6 the DeMotts have a 16-acre parcel on the corner and I think 7 they do count all 16 acres even though some of it is covered 8 by lake. This shows some of the crop sprayers in the area, 9 nearly daily. Also, all this land being irrigated and these 10 two major ditches intersecting south and west of the Larson 11 land are a hazard for small children. I understand that the 12 Big Thompson, or I 'm sorry, the Consolidated Home Supply Ditch 13 is asking them to put up a chain link fence to protect it from 14 children and you can see why. There's fast-moving, deep water 15 in these ditches . There's little bridges and pipes that kids 16 would want to crawl over and crawl on. However, I don't think 17 they can possibly fence off the whole thing and I 'm afraid 18 children would manage to go around the end and it would be 19 very dangerous for them. This is the big ditch that is not 20 cemented. There are some parts of the ditch that are just 21 inherently dangerous by lack of upkeep; sharp objects and it's 22 definitely a rural setting. 23 Highway 60 of course, has the agricultural vehicles 24 that go slow. Sometimes you can barely get around them. A 25 lot more traffic is going to make that more of a problem. One 111 940322 1 of the adjoining, the 5-acre property has a barn that' s ready 2 to fall down right on it. So that 's another safety hazard. 3 There's pump jacks on surrounding properties that are not 4 protected. These are not things that you 'd usually find close 5 to town where you 're going to put houses up close to the edges 6 of the property. Here's a little bit of what sometimes 7 happens on the north and northeast corner of the, this shows 8 the end of our driveway and this also happens in the corner of 9 the Larson field, the water accumulates here during heavy 10 rain. 11 COMMISSIONER KIRKMEYER: Could you go back to that 12 one? That 's where you access onto Highway 60? 13 MS. KUEHL: That' s our access . 14 COMMISSIONER KIRKMEYER: And the, I don't know if 15 you would be the one to answer this question, but the proposed 16 access now for the Mountain View Estates would be to the left 17 of that right there? 18 MS. KUEHL: Right. Yes . And then Steve Olander's 19 house across the road. The left hand one is his residence and 20 COMMISSIONER KIRKMEYER: And your access right there 21 is, that's about 30 feet? 22 MR. KUEHL: Yes it is . 23 COMMISSIONER KIRKMEYER: And you're saying that this 24 access is half on the Larson property and half on the 25 MS. KUEHL: No. 112 1 COMMISSIONER KIRKMEYER: No, this is all on your 2 property? This access? 3 MS. KUEHL: This is just on our property and they 4 wanted to put the road half here and half on the left side of 5 the ditch there for the whole subdivision and we protested 6 that because of all the traffic that would go right in front 7 of our house then further down the road. And so their new 8 access is straight across from Steve' s home. 9 COMMISSIONER KIRKMEYER: So, will there be anything 10 to divide this access? 11 COMMISSIONER HARBERT: The ditch. 12 COMMISSIONER KIRKMEYER: Besides the ditch, I mean 13 all the way out to 60? 14 MS. KUEHL: I 'm assuming the ditch will remain 15 there, but I don't know if there will be anything else. 16 COMMISSIONER KIRKMEYER: You're not planning on a 17 fence or anything to 18 MS. KUEHL: We wouldn't want to put a fence there 19 because then it would be very hard to mow and keep the weeds 20 down. We're already going to have ten more east/west fences 21 for weeds to grow under next to us if this passes and it's a 22 lot easier to keep the weeds down on a narrow space like that 23 if there's no fence. Just to show some of the shore birds and 24 endangered species, or threatened species anyway, that 25 sometimes are in this lake, this is a night heron. We often 113 940302 1 have pelicans travel through and stop in this lake. They are 2 a threatened species right now and we are concerned, of 3 course, about any pollution that might come from the septic 4 systems . I did talk to Lloyd Walker from Agricultural 5 Extension for State of Colorado. He said and agreed with Mr. 6 Hall in that high ground water is the biggest problem with 7 septic systems working correctly. I would just request that 8 you deny this subdivision. 9 CHAIRMAN WEBSTER: Questions? Thank you. 10 MR. CHILSON: I have a question. 11 CHAIRMAN WEBSTER: Yes . 12 MR. CHILSON: A couple questions . 13 MS. KUEHL: Since I did not bring my attorney, I 14 would prefer not to answer questions from Mr. Chilson. 15 MR. CHILSON: Mrs . McEntee, I thought you would want 16 to testify and give evidence. My question is, do you have 17 children? Oh, you choose not to answer? 18 MS. KUEHL: Yes . 19 MR. CHILSON: Oh, you don't want to tell us if you 20 have children? You don't want to tell us if there are other 21 children in the area? 22 CHAIRMAN WEBSTER: She's answered that. 23 COMMISSIONER HALL: Mr. Chilson, I think she's 24 already said that she doesn't want to answer your questions . 25 Thank you. 114 9403'92 1 MR. CHILSON: Excuse me. I thought pursuant to just 2 plain propriety and parliamentary procedure that it was the 3 Chairman who spoke to people who have the floor. Am I correct 4 or wrong? 5 CHAIRMAN WEBSTER: Well, we both spoke 6 simultaneously, I guess . 7 COMMISSIONER KIRKMEYER: I think the Chairman 8 basically has given us the prerogative to ask questions 9 throughout the whole thing. 10 MR. CHILSON: I agree. Ask questions and not to 11 interrupt. 12 CINDY DeMOTT: Hi, my name is Cindy DeMott and I 13 live at 23551 Weld County Road 5 and I ' ll show you where my 14 place is . And the first thing I would like to address and 15 what really concerns me the most is the problem with the lake. 16 Because I am probably the, I own most of the lake and I do 17 consider it valuable because it is a part of my business . I 18 raise and train Labrador Retrievers, and the lake is a big 19 part of my business . I train the dogs and I am concerned 20 about the pollution. My horses also drink out of this lake 21 and at this time, you know, we don't even know if it is, it 22 probably is polluted to an extent because of the septic tanks 23 surrounding. I don' t have the information on me, I don't 24 know. But I do know that if these septic tanks fail and don't 25 work, then the pollution will come into this lake and I 'd like 115 94©?`.'2 1 to know who would be responsible for the clean-up of this lake 2 if it is polluted. Since I own most of the lake, is it going 3 to be me? You know, that concerns me. Also the fact that I 4 enjoy looking at the wildlife, and I have counted 21 bald and 5 golden eagles flying over and above this lake and landing on 6 the lake that is next to us which is very close to here, on 7 the trees . And it' s wetlands and even though these houses 8 aren't directly going to be put on and disturb the wetlands, 9 the fish and game people are concerned about this, but they 10 would not comment because it wasn't directly gonna be built 11 directly on the wetlands, so I couldn't get any written 12 comment on that, but they were, verbally they were concerned 13 about it. You know, all the tests in the world about these 14 septic tanks, things do happen and I do want to bring your 15 attention to the earthquakes in California. Those bridges 16 were supposed to withstand earthquakes and they didn't. And 17 another thing, I would like to bring up California. 18 The reason why the growth is so crazy right now in 19 Colorado is because California got overgrown and overpopulated 20 and this kind of stuff started somewhere in California. And 21 I was literally forced out of California because of that 22 problem. And we bought our property almost two years ago 23 because my husband is an artist and we wanted to live in the 24 rural so he could paint and with peace and quiet. So when the 25 Larsons say that our business does not have anything to do 116 940392 1 with the way the farmland is, it ' s not true. And we do raise 2 alfalfa and we do feed our horses and my husband does paint 3 the horses in his props . So that is supportive of our 4 business . And I would just like to say that it 's, these 5 farmers around here, I 'm not so, I can't say that I 'm a 6 farmer, but I want to tell you something. These people around 7 that farm these lands are the hardest working people I 've ever 8 met in my life and it doesn't just, you don' t just take a seed 9 and drop it in the ground and it grows . It doesn't happen 10 that way. These people have to nurture this land. It takes 11 years and generations and they nurture this land. This land 12 is the most important things in their life and they work hard. 13 They work from sun up to sun down. I know, I rant a lot and 14 I don't want to bore you. 15 COMMISSIONER KIRKMEYER: Get to the point. Three of 16 us on this board are farmers or have 17 CHAIRMAN WEBSTER: So we know farms . 18 MS. DeMOTT: Okay, so I just wanted to bring that to 19 your attention. But some people don't know. To be honest 20 with you, when I moved there I didn' t realize what it takes to 21 be a farmer. So, you know. I 'm going to end this, but I do 22 want to say that I 'm very strongly opposed and_ I will not 23 answer any questions for Mr. Chilson. Thank you. 24 CHAIRMAN WEBSTER: Thank you. Are there questions 25 from the Commissioners? None? 117 940W12 1 MR. CHILSON: The record shows she left before the 2 Commissioners had a chance. I guess I scared her that much. 3 MS. DeMOTT: I 'm sorry. 4 MS. MIKA: I don't think she heard you. 5 MS . DeMOTT: I was ignoring you. Yes . 6 CHAIRMAN WEBSTER: Let me just ask you a question. 7 How many more people, could you raise your hands out there, 8 that are wanting to testify? How far away are we? 9 COMMISSIONER KIRKMEYER: I don't have a question, 10 but I guess, could Mr. Morrison answer a question about if 11 this lake did get polluted, who would have to clean that up or 12 at least pay for that clean-up. Can you answer that question? 13 COMMISSIONER HARBERT: I wrote that question down to 14 ask staff because I think our environmental person is here. 15 COMMISSIONER KIRKMEYER: I think Lee can 16 MR. MORRISON: Well, I don't, that's, without 17 knowing causation, I don't think I 'd even want to attempt to 18 tackle that. 19 COMMISSIONER KIRKMEYER: But the people who are, who 20 would have to help with the clean-up or pay for the clean-up 21 would be people who have caused the pollution? 22 MR. MORRISON: If there can be a causation 23 established from someone who has, through whatever means, 24 improper fertilization or septic tank or whatever, caused the 25 nuisance condition to occur then that party would be liable. 118 940302 1 But it 's rarely that simple in terms of causation. 2 COMMISSIONER KIRKMEYER: I understand. 3 MR. MORRISON: If I might, Mr. Chairman, I do have 4 a question of this witness . 5 CHAIRMAN WEBSTER: No, my question is just how many 6 more people we have. 7 COMMISSIONER KIRKMEYER: Well he wants to know if he 8 can ask a question. 9 MR. MORRISON: No, can I ask a question. 10 CHAIRMAN WEBSTER: Oh, he wants to ask a question. 11 MR. CHILSON: Boy, if he gets to ask and I don't get 12 to ask, I 'm really going to be, unfair. 13 MS. DeMOTT: Well, you could ask but I do not wish 14 to answer. 15 MR. CHILSON: Well, if you're going to answer him, 16 it 's really unfair. 17 COMMISSIONER KIRKMEYER: There's nothing we can do 18 if she doesn't want to answer. 19 MS. DeMOTT: But I would like to make a comment that 20 if the lake gets polluted and it 's, the damage is done, 21 whether who has clean it up or not, the damage is done. And 22 that's what we don't want. 23 MR. CHILSON: Let the record reflect that Mr. 24 Morrison handed his question to Mrs . Harbert who is now going 25 to ask Mr. Morrison's question, thereby circumventing me. 119 9403`?2 1 COMMISSIONER HARBERT: Well, this is a question that 2 I also had so it' s not a big surprise. I just wondered if you 3 have had problems . You said that you think that probably it 4 is somewhat polluted, you don't know, but have you ever had 5 the lake tested or any signs of any kinds of pollution so far 6 that are visible? 7 MS. DeMOTT: No, but there's a certain amount of 8 runoff that goes into the lake and that's very clear and it 9 would be, I mean, you don't have to be a scientist to figure 10 out that where the nine homes would be, the water does run 11 northeast and it goes directly into the lake. There is a 12 natural stream through properties, through two properties that 13 run right into the lake. 14 COMMISSIONER HARBERT: But you haven't seen any 15 visual signs of pollution such as bubbling, like a detergent 16 bubble or anything like that? 17 MS. DeMOTT: No. No, no and I don't think it's to 18 that point. 19 CHAIRMAN WEBSTER: Do you have any idea, just out of 20 curiosity, how deep that lake is? 21 MS. DeMOTT: We think it's about eight feet, is that 22 right? About eight feet. We think it's approximately eight 23 feet. But I also want to say that there's water that runs 24 into the lake. It's natural water runs into the lake and 25 there's no way that that water runs out. The only way the 120 9403P2 1 water comes out of that lake is through the irrigation from 2 four farms . There' s no natural outflow of water anywhere 3 except for 4 CHAIRMAN WEBSTER: Yeah, there's no outlet to the 5 lake is what you're try to say. 6 MS. DeMOTT: That's right. So what comes in sits 7 there until it gets pumped out. 8 COMMISSIONER HARBERT: Is that lake, is the source 9 of that lake just runoff or do you think there's a spring 10 under it or what or is it just seepage? 11 MS . DeMOTT: I think it's, no, I think there 's a 12 natural spring. 13 COMMISSIONER HARBERT: And I 'd like the record to 14 show that that is my question. 15 MS. DeMOTT: Okay. 16 COMMISSIONER KIRKMEYER: Just a minute. I guess I 17 would just like to say something or ask (inaudible) You 18 understand that we're saying anyone here can ask a question 19 and we're not prohibiting or restraining Mr. Chilson from 20 asking his questions. But we have said that it is up to the 21 person testifying whether or not they can ask the question. 22 MS. DeMOTT: He can ask me and I have already 23 directed my comment that I will not answer any of his 24 questions . I don't feel that this is a court of law. I don't 25 have my attorney, and I ' ll tell you what, if I had my attorney 121 94O392 1 here, he could answer all my questions, but I don't have an 2 attorney and that 's why I wish to not answer any of his 3 questions . I will answer the board's questions and make that 4 stated on the record. Thank you. 5 CHAIRMAN WEBSTER: Thank you very much. 6 MR. CHILSON: Let the record reflect that I would 7 have questions of this witness, I 'm not sure how to pronounce, 8 LeMont? DeMontt? Mrs. Demott, had she chosen to testify 9 would have testified that she has no personal knowledge 10 whatsoever if the existing 10, 12, 15 septic tanks in the area 11 are causing any pollution. She has no knowledge of the 12 hydrology of the area, she has no knowledge of the drainage of 13 the area and she is expressing her fears without having 14 factual knowledge of the actuality of the threat. I would 15 also state for the record that Mrs . McEntee, had she decided 16 to testify, would have testified, I don't know if she's got 17 kids, but that there are children in the area. Oh, I 'm sorry, 18 Mrs. Kuehl. No, no, Mrs. McEntee. Mrs . Kuehl, was she the 19 one that said no? Okay, she was the one I was talking about, 20 Mrs. Kuehl. Mrs . Kuehl would testify that there are children 21 already in this area and that they 22 COMMISSIONER KIRKMEYER: For the record 23 MR. CHILSON: And that they expose their children 24 daily to these horrible threats, thank you. 25 COMMISSIONER KIRKMEYER: Just so the record's 122 940302 .. ....__....._ . 1 cleared up there, for the record, you're saying it was Mrs . 2 Kuehl and not Mrs . McEntee? 3 MR. CHILSON: Well, whoever the lady was who put on 4 the slide show. 5 COMMISSIONER KIRKMEYER: And so for the record, that 6 was Mrs . Kuehl . 7 MR. CHILSON: Now, I move to strike therefore, the 8 testimony of each witness who has refused to answer questions 9 and I move to strike it on the basis that you have denied the 10 applicants due process of law by not instructing the witnesses 11 that they are subject to cross-examination, which under law 12 they are. And by informing them that they do not have to 13 answer questions, you have deprived the applicants a 14 procedural due process of law. Therefore, I would ask a 15 ruling from the Chair on my motion to strike. Would you 16 strike the testimony of Mrs . Kuehl, of Mr. Clagett, of let's 17 see, Mr. no I didn't have any for Mr. McEntee. Those two 18 witnesses, you strike their testimony and refuse to consider 19 it because it is tainted testimony; it deprives the plaintiff 20 of the right to confront witnesses when a constitutionally 21 protected right is at issue. 22 CHAIRMAN WEBSTER: And I would move to strike those 23 two witnesses ' testimony. 24 MR. CHILSON: Do you agree to strike that testimony? 25 CHAIRMAN WEBSTER: Yes, I would agree to strike 123 940392 1 those two. We have had adequate testimony this afternoon and 2 I can strike those two. 3 COMMISSIONER HARBERT: I think you need consensus of 4 the board on that. 5 COMMISSIONER KIRKMEYER: Is that correct? Does he 6 have the prerogative to make that ruling on his own? 7 MR. CHILSON: And excuse me, Mrs. , I would like to 8 add Mrs. DeMott to that list. I move that you strike her 9 testimony over, also as refusing to testify. 10 CHAIRMAN WEBSTER: At this point, I ' ll ask for a 11 decision of the board. 12 COMMISSIONER HALL: I would like to listen to Mr. 13 Morrison first, can I? 14 MR. MORRISON: Well, have you made your ruling on 15 that, Mr. Chairman, are you going to 16 COMMISSIONER HARBERT: He made a motion. 17 MR. MORRISON: You didn't rule, you just ask that 18 that be considered by the board? Okay. I think in light of 19 the fact that your board doesn' t have powers of subpoena, 20 powers of contempt, that you are without power to compel 21 someone to testify. 22 CHAIRMAN WEBSTER: That's right. 23 MR. MORRISON: I think also you can, the applicant's 24 not been deprived the opportunity to make an offer of proof 25 and won't be deprived the opportunity to provide rebuttal, so 124 940302 1 I don't think you're compelled to strike those witnesses ' 2 testimony. You know, if you think that, based on that offer 3 of proof, however, that it's so lacking in usefulness in terms 4 of your decision-making or in truthfulness that you choose to 5 disregard it, you can. You don't have to strike it, you can 6 do that in your own deliberation. 7 CHAIRMAN WEBSTER: Right, that's my feeling but I ' ll 8 entertain anything from the board, including comments . 9 COMMISSIONER HARBERT: I thought you made a motion. 10 CHAIRMAN WEBSTER: I didn't make a motion. I 'm the 11 Chairman. 12 MR. MORRISON: I think he just asked that, in 13 essence, he'd seek a consensus of the board or at least an 14 input from the board before he rules. 15 CHAIRMAN WEBSTER: I just expressed my. opinion. I 16 did not make a motion, not as Chairman. 17 MR. MORRISON: You always have the capability of 18 giving testimony greater or lesser weight based on your 19 judgment of the knowledge and truth and voracity of the 20 witness. That occurs in any case and you can apply the 21 circumstances of their testimony today and evaluate their 22 evidence based on those circumstances . So I think you can 23 adequately take into account in the weighing of the evidence 24 of whether this should be an impact on, an impact in your 25 decision based on the fact they've declined to testify. 125 940? ,2 1 COMMISSIONER BAXTER: Mr. Chairman, I have a short 2 statement and I think it goes right along with what Lee's 3 saying, that I don 't really consider any of us up here too 4 stupid or too ignorant to look at the facts, that we have 5 enough knowledge in our background that we can establish the 6 voracity of some of these witnesses ourselves and in so doing, 7 I think we determine and we weigh the evidence that these 8 people give in testimony and we can already do that without 9 the necessity of any legal counsel pointing it out to us . I 10 think we know a lot of these things and we can point that out, 11 and we know there's a vested interest on the two sides of this 12 issue and I think we 're all capable of seeing that and 13 ferreting out who is likely to be telling us the truth or not. 14 So, I mean, I 'll go along with what Lee said. I think that we 15 can do that on our own and we have that ability. I would be 16 willing to leave the testimony of everyone in and we be able 17 to tell ourselves whether we give any credence to what they 18 say. 19 COMMISSIONER HARBERT: I would agree with that. 20 COMMISSIONER KIRKMEYER: I would agree. I think 21 we've given the applicant and their attorney, we've been fair, 22 we've allowed them to ask their questions, and I think as Lee 23 said, we can't compel people to answer those questions and I 24 don't think we should strike their testimony. 25 CHAIRMAN WEBSTER: Okay. 126 9101'2 1 COMMISSIONER HALL: I agree. 2 CHAIRMAN WEBSTER: My only reasoning was that I 3 didn't feel that the testimony was that heavy, I guess is the 4 word I want to use, that it changed my mind as far as the 5 voting of it. And even though the testimony in some cases was 6 interesting, much of it did not relate really to the impact of 7 the subdivision that 's being proposed, and so I thought it 8 really didn't impact my decision on my voting at this time at 9 least, as far as where we are in the case. So with that are 10 there any further witnesses to, people. You have me calling 11 them witnesses now. Are there any further people who wish to 12 comment for or against this application this afternoon? We 13 don't allow seconds . 14 MR. BREHM: Well, all I was saying that, you was 15 wondering how deep that lake is, we have a surveying map of 16 that. 17 COMMISSIONER HARBERT: Well, if he's going to tell 18 us, he's got to go to the microphone and state his name. 19 CHAIRMAN WEBSTER: Well, I would be interested to 20 answer that question. 21 MR. BREHM: I have a surveying map at home made by 22 Holgan and Olhausen Surveyors and that lake is about four feet 23 deep, is all it is. 24 COMMISSIONER KIRKMEYER: And your name and address 25 is? 127 940372 1 MR. BREHM: Don Brehm, 2010 Highway 60. 2 CHAIRMAN WEBSTER: Thank you. That completes public 3 testimony. I would close public testimony at this time, and 4 ask the board if there are any further questions of Monica or 5 and if not, I would listening to the closing comments, I would 6 say, of the applicant, please, at this time. 7 COMMISSIONER HARBERT: Wait a minute. I have a 8 question of Monica and she may want to refer this to Jeff, but 9 we do have a statement from Mr. Larson stating that a 10 percolation test was performed on the soil and the results of 11 this test were found to be within acceptable limits . However, 12 the percolation, this letter is dated February 9, 1993 and I 13 feel that Mr. Larson has his seal on here and so on, but I 14 feel that's a direct conflict of interest for him to do the 15 percolation test on his own property. I would like to ask the 16 question of Monica if percolation tests, when there is such a 17 high water table as stated in, I believe I have a comment or 18 statement here from the state that there is a high water 19 level . It says, "groundwater resources, shallow groundwater 20 at the site should not be used as potable water but may be 21 used for irrigation water", that has to do with potable water, 22 but it does say shallow groundwater and I would like to know 23 if percolation tests as far as groundwater can be taken in 24 February and be accurate of a year-round, twelve month average 25 of groundwater. 128 94031'2 1 MS. MIKA: Okay. I can address some of those 2 concerns and then I can ask Jeff Stoll to address some of the 3 other ones . Initially, when the application came to us there 4 was some concern that the percolation data wasn' t significant 5 enough. Mr. Larson did contact CDS Engineering and they are 6 the ones who did the percolation tests and they are the ones 7 that our Health Department did determine were satisfactory. 8 There should be some letters . I 'm looking for the exact date. 9 COMMISSIONER HARBERT: Well, maybe I should 10 MS . MIKA: And Jeff can comment on the other part of 11 suitability and that type of stuff. 12 COMMISSIONER HARBERT: Jeff, could you come to the 13 microphone please and tell me that if percolation tests are 14 taken in the middle of the winter when most likely the 15 groundwater would be at its lowest level, if that would be an 16 accurate percolation test for twelve months out of the year. 17 JEFF STOLL: Yeah, those, in fact, oh I 'm sorry. 18 I 'm Jeff Stoll, Weld County Health Department. Yes, you can 19 do site evaluations year-round and we do them as part of our 20 functions in the division. You can tell by modeling of the 21 horizons and there's other such indicators that, when you're 22 evaluating, that you can estimate where high ground water 23 would be during peak events . In terms of depth to groundwater 24 and percolation tests are normally done 34 to 36 inches down 25 below the surface and freezing rarely impacts that depth. 129 9403'.. 1 COMMISSIONER KIRKMEYER: I have a question, it deals 2 with your memo, it ' s from Jeff to Monica December 1, 1993 . 3 MR. STOLL: Yeah. They submitted their data to us 4 after we requested this 5 COMMISSIONER KIRKMEYER: So, some of the concerns 6 MR. STOLL: and they confirmed the percolation range 7 and that the groundwater varied. It was eight feet and the 8 other thing, in addition to that, the reason we asked for more 9 information was because there 's a portion of the regulation 10 that excludes a particular type of engineer design which is 11 evapotranspiration system and when we had information from 12 other places in the area that indicated that the groundwater 13 might be around the five-foot marker, we were concerned that 14 if engineer designs were required, a common system that's used 15 for high groundwater is an ET system and the limitation on 16 those type of systems in subdivisions is that you can't have 17 more than 25 percent of your systems using evapotranspiration 18 systems . And the information that was submitted from the 19 applicant, CDS Engineering, answered our concerns as to that 20 point of the regulation. And I 'd add in addition to that, 21 these would all be evaluated individually through our permit 22 program to comply with the Weld County Ordinances and if there 23 is a site or two that might fall into requiring an engineer 24 design, that would be determined on a site-by-site basis. It 25 would be evaluated, the design would be evaluated and approved 130 94031)2 1 by the Board of Health and our department. And then also, 2 there are other technologies other than, that are available 3 other than ET systems, so 4 COMMISSIONER KIRKMEYER: The last line on that 5 memorandum, though, just so I 'm clear, you said any 6 recommendation for approval of this proposal would be 7 dependent on the applicant' s ability to demonstrate that 25 8 percent or less . So 9 MR. STOLL: Yeah, they satisfied that for us . 10 COMMISSIONER KIRKMEYER: They satisfied that. 11 CHAIRMAN WEBSTER: Thank you. 12 COMMISSIONER HARBERT: Mr. Chairman, before 13 CHAIRMAN WEBSTER: Further questions? 14 COMMISSIONER HARBERT: Before we have Mr. Chilson 15 come back up, I would request a stretching break. 16 CHAIRMAN WEBSTER: You would? Think we got a 17 consensus? 18 COMMISSIONER HARBERT: I ' ll bet. I can ask the 19 audience. I bet they do. 20 CHAIRMAN WEBSTER: We are in a short recess . 21 (A SHORT RECESS WAS TAKEN) 22 CHAIRMAN WEBSTER: We are now in, we reconvene this 23 hearing. At what point are we? 24 COMMISSIONER HARBERT: Mr. Chilson is going speak to 25 us . 131 9403°2 1 CHAIRMAN WEBSTER: We have heard the testimony from, 2 and the questions I think have been completed with staff . At 3 this time, Mr. Chilson, I think is ready to prepare his 4 comments to us . 5 MR. CHILSON: Mr. Chairman, members of the board, 6 you know these things have the tendency to turn into zoning 7 hearings. You know, where everybody gets to come and say, 8 well, you know, I 've got mine and everything was, it was real, 9 all changes before I got mine were real good. But boy, now 10 that I got mine, nothing ever ought to change. And you know 11 that has some weight in zoning hearings. But you 're not in a 12 zoning hearing. You 're in a subdivision hearing. And I 'm 13 kind of surprised not one question have you all asked of any 14 witness here which related to any of the subdivision 15 regulations . That's what you're supposed to be dealing with. 16 So I am kind of inclined to believe that, hey, you aren't 17 really concerned about the subdivision regulations, you're 18 concerned more about neighbors, you're concerned about 19 groundwater, you 're concerned about things that are extremes . 20 The regulations don't say anything about groundwater. The 21 regulations don't say anything about lakes or the desires of 22 the neighbors . 23 CHAIRMAN WEBSTER: I 'm sorry, but your mike got in 24 behind you. 25 MR. CHILSON: Am I maybe not getting on the record? 132 9403412 1 I sure want this on the record. 2 CHAIRMAN WEBSTER: I looked and I couldn't see what 3 happened to it. 4 MR. CHILSON: There we go. Can you hear me? 5 CHAIRMAN WEBSTER: Oh I can hear you alright, but on 6 the tape I don't think it's picking up well enough. That 's my 7 only concern. 8 COMMISSIONER HALL: She's getting it. She 's got it 9 turned up high. 10 CHAIRMAN WEBSTER: She's says she' s on top of it. 11 MR. CHILSON: If you go through the regulations 12 right straight down and you heard what Monica said at the 13 start, that is basically that every regulation that's before 14 you on county commissioner's hearings under the 1993 Minor 15 Subdivision Regulations, Chapter 4 .5. 16 . 1 through 4 .5. 16 . 17, 16 excuse, . 16 , now we've got that straightened out. The 17 evidence is clear, every one of those regulations has been 18 met. Insofar as your concerns about hazards or other 19 problems, the issue of groundwater in the area, all land in 20 Larimer County and Weld County that has an irrigation system 21 of main carrying ditches has high groundwater during the 22 irrigation season. And that's been true of land in Greeley, 23 of land in Johnstown, land in all the towns in this county. 24 All that land has high groundwater, but is it a problem, is it 25 a regulation that says that that creates a problem? No. And 133 940392 1 look at how housing goes . You 've got 17 or 18 houses already 2 out here in this high groundwater system with septic systems . 3 Now your septic systems are going to have to be engineered to 4 meet county health standards . But the ground is capable of 5 doing that. Your Health Department has made that 6 determination from the applicant 's report. So what is really 7 at issue here is the question of whether or not the 8 application meets your Comprehensive Plan. Now it doesn't 9 have to meet your Comprehensive Plan. This isn' t a zoning 10 case, this is a subdivisions case and the law is very clear 11 that when you're dealing with subdivision cases if the land is 12 zoned for this use, your Comprehensive Plan is not a 13 regulation. Now, the land is zoned for this use. It' s in an 14 agricultural ,zone, your agricultural zone says that you can 15 build on a legal lot. The definition of a legal lot is one, 16 it has a couple, but one of which is that a legal lot size may 17 be created pursuant to subdivision regulations . Your legal 18 lot size under minor subdivision regulations is 2 .5 acres . So 19 you don't have a zoning case. 20 Now, if you want to use the Comprehensive Plan, it's 21 pretty clear that you have an area that's served by all 22 utilities. You have an area that's within the urban growth 23 area of a municipality as required by your regulations . It is 24 an area, it is a small piece of ground that has a history of 25 having been split itself. It is in an area of high 134 940322 1 concentrated houses . You have 17, 18 houses right around it. 2 This is not some remote 160-acre farm out in an area that has 3 not seen any residential development. This has seen 4 residential development. You adopted regulations by which a 5 landowner, if he complies with them, is entitled to approval . 6 If you don't like the results you get by your regulations 7 being complied with, then the remedy is change the 8 regulations, and you did that. Subsequent to the Larsons 9 proceeding under these regulations, you changed them. You 10 said by your zoning ordinance you can no longer do these minor 11 subdivision regulations without a rezoning, so you can bring 12 into play your Comprehensive Plan. But that does not apply to 13 the Larsons ' application. They came in in a relatively short 14 window of time where they do not have to rezone, the zoning 15 permits this development and it is only a subdivision issue. 16 Now the Larsons ' subdivision does meet your Comprehensive 17 Plan. Mrs . Larson's testimony, I think demonstrated that 18 completely. What' s the evidence given to you by the 19 objectors? The opponents say, "We were out there first, we 20 don't want anything to change, we have a vested right in 21 someone else's property to see that it doesn't change. " Well, 22 if that had been the law of the United States of America, the 23 State of Colorado and the County of Weld, only about three or 24 four people would be out there because there wouldn't be any 25 change. But change is with us, it's a part of life and it's 135 940322 1 something that you can' t stop. The wisest words in the world 2 are, "This, too, shall pass" and change is part of life today. 3 And the question is sound planning. And where you have all 4 utilities in place, where you have a paved road, where you 5 have already substantial residential development, and where 6 you have adopted regulations that can be met by this site 7 specific application, you no longer have any discretion to 8 turn this down. I know you don't like to hear that, and very 9 probably you aren' t going to agree with me, and very probably 10 you 're going to show me how wrong I am by voting to turn it it down. I think that was almost a fate accompli before we 12 walked in here. I am simply appealing to you to do your jobs, 13 which is you took an oath to uphold the law. The law is very 14 clear. To uphold the law you have to approve this 15 subdivision, plain and simple. I hope you ' ll do it. 16 CHAIRMAN WEBSTER: Questions from the board for Mr. 17 Claussen or for the applicant. 18 COMMISSIONER KIRKMEYER: Mr. Claussen7 19 COMMISSIONER HARBERT: Mr. Chilson. 20 MR. CHILSON: I don't know that gentleman, he must 21 have left earlier. 22 CHAIRMAN WEBSTER: I 'm sorry. It's been a long day. 23 COMMISSIONER KIRKMEYER: It's been a long week. 24 CHAIRMAN WEBSTER: You should have been at the 25 hearing last night. It was only four hours long. 136 9403^2 1 COMMISSIONER HARBERT: But it lasted till 11 2 o'clock. 3 CHAIRMAN WEBSTER: So, we've been sitting in these 4 Chairs for a good some time. We're thinking of getting air 5 mattresses . 6 COMMISSIONER KIRKMEYER: I have a question but it's 7 not for Mr. Chilson or Mr. Claussen. 8 CHAIRMAN WEBSTER: Okay. Well, whoever it's for, 9 please address it. 10 COMMISSIONER KIRKMEYER: It 's for one of the Larsons 11 to begin with, and then maybe, I think maybe Mr. Larson could 12 answer my question. It has to do with the access and your 13 permit that you received from the State Highway Access, or 14 from the Colorado Department of Transportation. Could you 15 explain to me, I 've got out in front of me a December 20th 16 letter, 1993 to Monica from Teresa Jones of the Department of 17 Transportation and there's a lot of verbiage in there. And 18 then I also have out your State Highway Access Permit. I 'm 19 trying to understand if this is an additional access or new 20 access because in here it says that this access is a joint 21 access provided by a new private access road. And then it 22 also goes on further to say that the preliminary road plan 23 also indicates an existing access for a single family 24 residential use just east of the boundary and an agricultural 25 access just west of the boundary, and are those the two 137 9403C'2 1 accesses that shall be removed? What map do you have out, so 2 I can pull it out and I can figure that one out? 3 MR. LARSON: My name is Ivar Larson. I 'm referring 4 to the Colorado Department of Transportation's State Highway 5 Access Permit that is dated January 5, 1994 . Do you have that 6 document in the file, because I think it is self-explanatory. 7 It shows that there are nine single-family dwellings of 8 Mountain View Estates 9 COMMISSIONER KIRKMEYER: Okay, I 'm sorry, what date 10 is that? 11 COMMISSIONER HARBERT: This is October 28, 1993. 12 MR. LARSON: That's the old one. The one that 13 you're referring to is the one that' s been voided. 14 COMMISSIONER KIRKMEYER: That one's been voided, we 15 have another one in here someplace? 16 MR. LARSON: It' s the one that's dated January 5, 17 1994 . 18 COMMISSIONER KIRKMEYER: Monica, is that in our 19 packet? 20 MS. MIKA: I don't have a copy of it, so you guys 21 didn't get one, but if I can maybe try to explain a little bit 22 in conjunction with Mr. Larson. 23 COMMISSIONER KIRKMEYER: Let me, I would like him to 24 answer, and I guess could we get a copy of that permit? Maybe 25 we could go make copies or something real quick. It'll take 138 94032 1 just a second. 2 MR. LARSON: Possibly it will help you understand 3 that that one was eliminated where it was a joint access and 4 then it was redone. There was an existing access to this site 5 COMMISSIONER KIRKMEYER: And that 's the one we were 6 having the legality problems over. 7 MR. LARSON: There was an existing access for the 8 flagpole access to Mr. Kuehl . There was also an access to the 9 west of there for agriculture. That one is eliminated and 10 then the new access permit makes a totally separate access 11 moved far enough away to satisfy the DOT from the Kuehl 12 flagpole access . And that's shown on the date of the permit 13 and the details and drawings have been modified to conform to 14 what the state required for that access. 15 COMMISSIONER KIRKMEYER: So, you removed an access 16 that was to the west and you created an additional access here 17 on property? 18 MR. LARSON: And modified it. Correct. And the 19 flagpole access is unchanged and it's my understanding from 20 Teresa from the Department of Transportation that there is no 21 permit for Kuehls but we have a valid permit for ours and we 22 have installed that according to their requirements . There is 23 also a modification to the drawings where the roadway actually 24 curves back slightly to the east to then intersect and 25 parallel the original drawings that were submitted with the 139 940322 1 sketch plan. 2 COMMISSIONER KIRKMEYER: Could you maybe get out the 3 other overhead and show me how that happened or where that is? 4 MS . LARSON: This is Donna Larson. We had to submit 5 that second department of, we had to submit, in other words, 6 we couldn't even meet with the Planning Commission until we 7 had that other access permit. 8 COMMISSIONER KIRKMEYER: Yeah, I just could not find 9 it in my packet, but there's quite a bit here, maybe it's in 10 the other packet. 11 MS. LARSON: I 'm sure it was submitted at one time. 12 COMMISSIONER HARBERT: No, I looked, it's the same 13 one. 14 MS. MIKA: They're identical. I mean it's not like 15 you'd notice a difference. 16 MS. LARSON: I don' t know if Lee has a copy of it, 17 but the new permit actually has a thing in it that states that 18 the permit you're looking at was voided and replaced by the 19 one that's dated January 5th. 20 MR. CHILSON: Mr. Morrison, we presumed that was in 21 the file, if it's not, may we place a copy into evidence at 22 this point in time? 23 MR. MORRISON: Here we go, yeah. It's in the file. 24 I apologize. Yeah, one five of '94? 25 MS. LARSON: That's the new one. 140 940392 1 MR. MORRISON: We' ll have additional copies for the 2 board. 3 MR. CHILSON: Could we mark that as an exhibit, 4 please. 5 MR. MORRISON: I think it 's been previously marked. 6 It is in the existing record. 7 MS . LARSON: I know without that we wouldn't be here 8 today. 9 COMMISSIONER HARBERT: Could you just pass that down 10 so we can look at and we'll send it back to you. 11 MR. MORRISON: I ' ll make sure, Mr. Chilson, it is 12 marked, or remark it. 13 COMMISSIONER KIRKMEYER: So, just so, for a point of 14 clarification, your access now starts and kind of curves over 15 and then lies adjacent with the other access? Is that what 16 you said? 17 MR. LARSON: Correct. 18 COMMISSIONER KIRKMEYER: And you did remove an 19 access but you created this additional access? 20 MR. LARSON. Uh huh. That is correct. 21 COMMISSIONER KIRKMEYER: And the other access that 22 goes back down to that lower H, that back property, that 23 flagpole one, that is no longer your access and do you have 24 any legal, an easement to that access right there like that, 25 or that hasn't been worked out yet or 141 940322 1 MR. LARSON: Well, the easement, it, you know, we've 2 used that easement for irrigation purposes but there would be 3 a higher burden of traffic, you know had we gone to the joint 4 access, and rather than fight that battle and to have a very 5 clean and clear-cut homeowners association for payment for 6 improvements on the road, we felt that it was a lot cleaner 7 for these nine home owners to have something that's very 8 understandable and simple for that. The emergency access that 9 Ms . Harbert referred to was there on the, on our side of the 10 property for the 30 feet that would go back to the two access 11 roads paralleling the Home Supply Ditch and they would be 12 there through the original recorded exemption and are also 13 shown on these drawings as an easement going clear back to the 14 southwest property, or southeast property corner. It actually 15 goes all the way through there. 16 COMMISSIONER KIRKMEYER: On here under terms and 17 conditions, it's number 4, they have left turn movements in 18 and out of the access, accesses may be prohibited at some time 19 in future date. Do they indicate, when do, to you when that 20 would be or is it determined by the amount of traffic or 21 MR. LARSON: My understanding is that's a traffic 22 count determination. 23 COMMISSIONER KIRKMEYER: So when the traffic 24 increases on State Highway 60 to a certain point, then they're 25 going to prohibit you from turning left into that access? 142 940302 1 MR. LARSON: They may, in fact do that. One of the 2 things the school district wanted was a turn-off lane and 3 after meeting with the Department of Transportation, this is 4 for the school bus . They felt that it's safer to have the 5 school bus stop in the line of traffic so that everyone is 6 very visible and that the bus is there and stopped for the 7 drop-off, so they're the ones that really eliminated that 8 requirement that the school district had mentioned that they 9 thought would be good. 10 COMMISSIONER KIRKMEYER: So the Department of 11 Transportation is who you're speaking of who said that? 12 MR. LARSON: They're the ones that did not want the 13 separate turn-off. 14 COMMISSIONER KIRKMEYER: What about the school 15 district? What did they 16 MR. LARSON: The school district, initially in their 17 letter, I believe, said that they wanted it, but the 18 Department of Transportation evidently had studies whereby 19 they feel that it's safer to not do that. 20 COMMISSIONER KIRKMEYER: Thank you. 21 COMMISSIONER HARBERT: The school district also 22 required a warming hut or that type of thing and you did 23 include that in this packet, is that not right? 24 MR. LARSON: Yes, that will be done. Correct. 25 COMMISSIONER KIRKMEYER: Does anyone else want to 143 9403"2 1 see this? 2 CHAIRMAN WEBSTER: ( Inaudible). Pardon me. 3 MR. MORRISON: It' s marked as Exhibit "K" . It was 4 in the record. I couldn't find that it had been previously 5 marked though. 6 MR. CHILSON: Have we gotten the copies back yet, 7 Lee? 8 MR. MORRISON: They haven't come back. You' ll get. 9 Yeah, I know you need the original . 10 MR. WEBSTER: Any further questions while we're 11 waiting on the documentation? 12 COMMISSIONER KIRKMEYER: Of the applicants, no, I 13 don't have any more. 14 MR. CHILSON: Oh, may I add one thing, Mr. Chairman? 15 I forgot to add and I don't know if this was brought out. But 16 the Larsons, in their agreement with the Home Supply Ditch 17 have agreed to chain link fence the Home Supply Ditch as it 18 crosses their property on the back side. 19 CHAIRMAN WEBSTER: On that concrete lateral that 20 runs along the west side of the property, is that the one 21 you're speaking of? It runs north and south. 22 MS. LARSON: I 'm Donna Larson. That, it's this 23 ditch, excuse me, right here. It would be the Home Supply 24 Ditch and it's their request. I 'm not sure I agree that' s the 25 safest thing to do, but they requested that along the easement 144 940302 1 we install, I 'm not trying to give you a footage, but a chain 2 link fence. 3 CHAIRMAN WEBSTER: That's the main ditch running 4 east/west? 5 MS. LARSON: Right. The main ditch. That's that 6 big concrete ditch that you saw in the slides . 7 CHAIRMAN WEBSTER: But I thought there was a 8 concrete lateral ditch running to the north along the west 9 side of your property? There is not? 10 MS . LARSON: No. 11 CHAIRMAN WEBSTER: I guess when she was showing the 12 pictures I just misconstrued that. 13 MS. LARSON: Well, they were, she was in areas 14 around other farms, yeah. 15 CHAIRMAN WEBSTER: Because when I asked whether 16 there was water on that west side of that property that was 17 flowing underground to sub-irrigate that hay that's making 10 18 ton to the acre, I just thought that there was water on the 19 west side of that property. 20 MS. LARSON: No, I 'm not sure we bring, there's a 21 small carrying ditch but it's not filled with water or, I 22 mean, unless you're irrigating. 23 CHAIRMAN WEBSTER: Fine. Thank you. I can't 24 recall, could someone answer for me whether a John Zimmerman 25 testified today? I don't believe so. 145 9403`22 1 COMMISSIONER KIRKMEYER: No. 2 CHAIRMAN WEBSTER: He testified and his findings 3 previously, he had a 1,600 head hog farm. Where is that in 4 relation to this property? 5 MR. LARSON: Two miles west, or one mile west. 6 CHAIRMAN WEBSTER: Thank you. 7 MR. LARSON: One and a half mile west. 8 COMMISSIONER KIRKMEYER: Does anybody else have any 9 more questions of the applicants or their attorney? Can we 10 ask questions of the staff now? 11 CHAIRMAN WEBSTER: You said you didn' t have any more 12 and I believed you but if you have more, I 'd be happy to 13 COMMISSIONER KIRKMEYER: I have questions of the 14 staff, but I don't have any of them. 15 CHAIRMAN WEBSTER: Oh, okay. Questions for either 16 staff or the applicant are now in order. 17 COMMISSIONER KIRKMEYER: Okay, am I reading here 18 under 5.5. 16, it says the board shall hold a public hearing to 19 consider the application, take final action, and in making our 20 decision we' ll consider everything between 4 .5 . 16 . 1 through 21 4 .5. 16 . 16. Under 4 .5. 16 . 11, Monica could you explain that 22 criteria for me? Or that, that one? 23 MS. MIKA: Do you want me to read, I ' ll read into 24 the record, it says that, "No additional access to a county, 25 state or federal highway will be created. " And in essence, 146 9403°2 1 this application did create an additional access onto State 2 Highway 60 . That 's why you have an access permit in front of 3 you. There' s also a letter in your files that Mr. Larson does 4 say that he still holds joint ownership of the easement with 5 the Kuehls, so we have those two accesses simultaneously. 6 COMMISSIONER KIRKMEYER: Okay, and you also said 7 earlier that, on page 27, 4 .5. 16 .5 that you didn't think it 8 met that condition or that criteria. And on this blue sheet, 9 can you tell me which one of those is related to that or could 10 you maybe just expand on that or be a little more specific 11 there? 12 MS. MIKA: Okay. That's the section that talks 13 about having a soil type that has a special criterion and 14 having a special criterion very well means that it has a 15 special characteristic, and a characteristic being an ability 16 to do something. And Nunn clay soils are, we've talked about 17 it, they're soils that have fair to poor potential for urban 18 development but they are highly suitable for farm production. 19 And so based on that, that that special characteristic of the 20 soil needs to be taken into consideration. It's the third and 21 fourth paragraph on the second page, deals specifically within 22 those. 23 COMMISSIONER HARBERT: I guess, Monica, I 'd also 24 like to ask regarding 4 .5. 16 .2. I believe that's the correct 25 one. And I have not had it answered yet as to just exactly 147 9403"2 1 what Loveland's urban growth boundary is, and would that be 2 the urban growth boundary that this would located in? It 3 would be the nearest municipality, from what I understand. 4 MS . MIKA: That's correct. 5 COMMISSIONER HARBERT: And the letter that we got 6 from Loveland said this property is located within a three- 7 mile radius of the existing city limits, but it doesn't 8 designate whether the urban growth boundary and maybe this is 9 the question, does it cross county lines? 10 MR. CHILSON: This is a legal issue and Mr. Morrison 11 is the one whose 12 COMMISSIONER HARBERT: Well, I need to ask her if 13 she knows where it is first. 14 MS. MIKA: There is a letter. 15 COMMISSIONER HARBERT: I have a letter dated 16 February 8, 1993, and that ' s the only letter I could find from 17 the City of Loveland, but maybe there's another one. 18 MS. MIKA: Okay, there 's another letter, and there 19 was some concern and there also is a memo from Mr. Morrison to 20 me that addresses this question, that it does fall within the 21 City of Loveland's urban growth boundaries. But we do have 22 two letters from the City of Loveland, and the first letter 23 says that, yes it is within the three miles . But then we 24 asked them, Mr. Chilson said that a referral agency that 25 doesn't comment is considered a favorable recommendation and 148 9403f2 1 that is true. But in this particular situation, the City of 2 Loveland did make a comment and their comment was, "We will 3 not be making a comment. " And I know that sounds like 4 semantics, but there is a difference there. Basically, I ' ll 5 read you the letter: "This letter is to inform you that the 6 above-mention projects are not within the City of Loveland' s 7 urban growth boundaries as they prescribe their own 8 boundaries . They are within what we perceive to be their 9 urban growth boundaries . Consequently, the Loveland Planning 10 staff will not be providing comment on this project. " So I 'm 11 not sure one can make the assumption that they were in favor 12 of the application, they just chose not to comment and there 13 is a slight difference. 14 COMMISSIONER HARBERT: I guess I would, yeah, I saw 15 that memo from you somewhere in here but I 'm not going to look 16 for it now. 17 MR. MORRISON: Well, I think the difference. 18 Loveland, every municipality who has any planning has some, 19 you know, goal and/or vision as to how they' re going to grow 20 and how they determine their growth pattern and put that in a 21 plan is something that you can consider in relation to 22 planning cases . The issue here, in terms of Weld County's 23 urban growth boundary area, is a basic how far is it issue and 24 where it's within three miles of the existing municipal 25 limits, it meets 4 .5 . 16 .2 and there's no reason to distinguish 149 940:x'"2 1 between a municipality that's inside the county currently and 2 one that' s outside the county. But those are potentially two 3 different issues . One is a black and white one and that is, 4 is it within what' s currently defined as three miles . And the 5 other is part of the Comprehensive Plan when it comes to 6 deference to other counties or other municipalities ' planning 7 processes . 8 COMMISSIONER HARBERT: Okay, thank you. 9 CHAIRMAN WEBSTER: Mrs . Larson. 10 MS. LARSON: I just wanted to address the access 11 issue because I think it's become somewhat confused. The 12 Colorado Department of Transportation access permits are 13 specific. In other words, this permit we have is specifically 14 for nine lots. If we change that, we still have to go get 15 another permit. If we go back to, in other words, we had an 16 agricultural access there already. We have not created an 17 additional access because we replaced the agricultural access 18 with an access to nine lots . That ' s what required the access 19 permit. So I think you have to be very cautious in saying 20 we 've created an additional access; what we 've done is alter 21 an access that existed and to do that you must get a 22 Department of Transportation permit. If we go back to an 23 agricultural access at this point, I have to go back and get 24 another permit, I can't even use this subdivision permit to 25 access agriculturally to this ground. 150 940392 1 CHAIRMAN WEBSTER: Thank you. Further questions? 2 Comments? 3 COMMISSIONER BAXTER: I suppose this is not the 4 proper place to ask Lee this question, maybe, but I 'm going to 5 stick my neck out and do it anyway. The fact that we changed, 6 the testimony has been that obviously now we have to rezone 7 into estate zoning before we go ahead with any subdivision in 8 the county. But prior to that we had a provision to allow a 9 mini-subdivision in the A Zone so, in absence of having to 10 meet some type of zoning hearing or zoning change process, and 11 there was no doubt a process obviously that was followed, to 12 establish whether to put it and why to put it and why not to 13 put it and why not to put it anywhere in the county because 14 A Zone is most of the county. So then we do have some 15 criteria, obviously, going back reverting to a former time, to 16 determine whether this can be put in without having to, in 17 essence then ending up dealing with issues that might well be 18 zone issues in a later hearing. We still have those criteria 19 to use even though they're not in effect now, am I correct? 20 I mean, how did we determine what was allowable as a minor 21 subdivision when we didn't go through a zoning process to 22 establish that? 23 MR. MORRISON: Well, that' s, those are the 24 provisions that are in 4 .5. 16 in sequence. What Mr. Chilson 25 argues, and there's some case law that I think is 151 9403"2 1 distinguishable, but what he argues is that when a prior board 2 decided it was okay to have minor subdivisions in the A Zone 3 without a rezoning, that some of the issues that are normally 4 part of a rezoning don't get discussed, that you don' t talk 5 about the Comprehensive Plan and the subdivision, you only 6 talk about more of the technical aspects . I think that case 7 is distinguishable, we discussed it in the earlier situation, 8 because of Weld County being Home Rule, the fact that we've 9 adopted these by ordinance power, the fact that in the Vick 10 case, the reference to the Master Plan was an introductory 11 portion of the County Master Plan, in fact then incorporated 12 by some general reference Estes Park's plan. But, you know, 13 his argument is you don't even get to use that. In our case, 14 we specifically say in the subdivision regulations, consider 15 compliance with the Weld County Comprehensive Plan. You know, 16 you have to look at those, there was at least some recognition 17 that minor subdivisions fit in an agricultural zone with one 18 process to go through rather than two where you 'd have to 19 rezone and that was the board' s prior position. The majority 20 of you weren't on that board when that initially was done. 21 But I think there is some, you have to give some credence to 22 the way the regulations were written for that three-month 23 window as potentially being somewhat different than they are 24 now. 25 COMMISSIONER KIRKMEYER: But compliance with the 152 9403U2 1 1 Weld County Comprehensive Plan was always a criteria . 2 COMMISSIONER HARBERT: Right. 3 MR. MORRISON: It 's always been in, yes that' s 4 correct. And specifically not just by general reference in 5 the introductory portion of the subdivision regulations . 6 COMMISSIONER KIRKMEYER: And I guess it says right 7 here that it's basically our responsibility to consider all of 8 the sections here which includes 4 .5 . 16 . 1 . And it says that 9 in 4 .5 . 16 . 10 MR. MORRISON: That' s correct. That 's what it says . 11 I think I 've outlined the arguments on both sides of that 12 whether you consider it or not. 13 COMMISSIONER HALL: Mr. Chairman, I will move to 14 deny Subdivision 347 . I feel that it does not comply with the 15 Weld County Comprehensive Plan as 4 .5. 16 . 1 does state. I 16 would incorporate all the information that has been previously 17 brought forth as far as recommendations from the Planning 18 Commission. I do feel that the intent of the agricultural 19 zone is not best served by this type of intense residential 20 type use. 21 CHAIRMAN WEBSTER: Motion's been made by Dale 22 COMMISSIONER KIRKMEYER: I would second that. 23 CHAIRMAN WEBSTER: And seconded by Barbara. 24 COMMISSIONER KIRKMEYER: I just agree with what he , 25 said. 153 940;x2 1 CHAIRMAN WEBSTER: We are in discussion on the 2 motion. 3 COMMISSIONER HARBERT: I 'd have to agree with that. 4 I think it's been shown both photogenically and verbally that 5 that is very good farmland and there's certainly places in 6 Weld County that can' t produce a crop even when tended well. 7 I think that ' s why that was put in there. 8 COMMISSIONER KIRKMEYER: And I guess, sorry 9 COMMISSIONER HARBERT: Go ahead. 10 COMMISSIONER KIRKMEYER: I would like to add that 11 I 'm not sure that the applicant has demonstrated 4 . 5 . 16 . 11 . 12 I think there could still be some discussion around that one 13 and that criteria also. 14 CHAIRMAN WEBSTER: Fine. George? Any comment? 15 COMMISSIONER BAXTER: I think basically it's been 16 said. I said earlier and I will reiterate that I think 17 obviously everything was not in all the testimony. Obviously 18 black and white, there's always issues on both sides of the 19 question that when you want something you do it and when you 20 don't want it you do whatever it takes not to have it. And 21 so, but I think as we looked through it and sorted it out, I 22 would tend to agree that I don't think it does fit and we need 23 to comply with our Comprehensive Plan and I think we have that 24 ability to do that even though we're dealing with a rather 25 unique animal here. There's something that was different for 154 940302 1 a short period of time, that that still doesn' t preclude us 2 from making a decision based on the criteria that' s been 3 mentioned. 4 CHAIRMAN WEBSTER: I would only say that I have 5 really a problem, and so often we get into these cases where 6 we're talking about an increase in the number of homes in an 7 area and yet you look up there and you can count 14 or 15 8 residences within the immediate area, 4 of them built in there 9 recently, recently being in the last few years or so. And so 10 I get concerned about the people that say, well I got inside 11 the door and I 'm closing the door on everybody else syndrome. 12 And then of course, all of us can appreciate that we've all 13 known people in our own ancestry for that matter that have 14 been in homes and on farms for many, many years, and that's 15 commendable. But I don't think the testimony here on that was 16 strong today as far as making a point that since we have these 17 farms and so forth and these older homes that we have the 18 right to be here and we 're not allowing other people to be in 19 the area. But on the other hand, when I look at the pictures 20 of the ground and the fields and I listen to the comments of 21 the people that have farmed it, of course I have a little 22 question about the production some times on the piece of 23 ground, but it still looks like it's good productive soil . 24 It's been classified that, as sandy loam clay. The crops in 25 that area from what I could see, and I wish I could see them 155 940312 1 in production, I 'd have a much better idea, but they look 2 strong as agriculture ground and I hate to keep giving up more 3 and more acres of prime agricultural ground. I can take out 4 a piece of ground that 's alkali or dryland or doesn't have 5 available water to it and I can do that pretty easy as far as 6 development, but when I see good agricultural crops, I just 7 can' t go along with it. And with that, I would call for a 8 roll call vote, Shelly. 9 MS. MILLER: George Baxter: 10 COMMISSIONER BAXTER: Aye. 11 MS . MILLER: Connie Harbert. 12 COMMISSIONER HARBERT: Aye. 13 MS. MILLER: Barb Kirkmeyer. 14 COMMISSIONER KIRKMEYER: Aye. 15 MS. MILLER: Dale Hall . 16 COMMISSIONER HALL: Yes . 17 MS. MILLER: Bill Webster. 18 CHAIRMAN WEBSTER: Yes . 19 COMMISSIONER HALL: Mr. Chairman, on Case No. S-348, 20 I would make the same motion to deny and essentially state the 21 same reasons with non-compliance with our Weld County 22 Comprehensive Plan which is in our subdivision regulations and 23 I would also incorporate all the Planning Commission's 24 comments . 25 COMMISSIONER KIRKMEYER: Second. I would 156 940322 1 incorporate my same comments . 2 CHAIRMAN WEBSTER: Moved by Dale and seconded by 3 Barbara to deny S-348 also, further discussion on the motion? 4 Hearing none, all in favor of the motion say aye. 5 COMMISSIONERS: Aye. 6 CHAIRMAN WEBSTER: Opposed? 7 (NO ANSWER) 8 CHAIRMAN WEBSTER: Thank you. We are adjourned. 9 157 940Y'2 Hello