HomeMy WebLinkAbout20240606.tiffHEARING CERTIFICATION
DOCKET NO. 2024-15.C
RE: PETITION FOR VACATION OF A PORTION OF COUNTY ROAD 41 BETWEEN COUNTY
ROADS 6 AND 4 - BNSF RAILWAY COMPANY AND ALAN AGNEW
A public hearing was conducted on May 8, 2024, at 9:00 a.m., with the following present:
Commissioner Kevin D. Ross, Chair
Commissioner Perry L. Buck, Pro-Tem
Commissioner Mike Freeman
Commissioner Scott K. James
Commissioner Lori Saine
Also present:
Acting Clerk to the Board, Janet M. Warwick
Deputy County Attorney, Karin McDougal
The following business was transacted:
• I hereby certify that pursuant to a notice dated February 9, 2024, a public hearing was
conducted to consider the request of BNSF Railway Company and Alan Agnew, for a Petition for
Vacation of Right -of -Way for a portion of County Road (CR) 41 between County Roads 6 and 4.
This hearing was continued from March 6, 2024. Bruce Barker, County Attorney, made this a
matter of record.
IR Jacob Woods, attorney representing BNSF Railway Company ("BNSF"), introduced
Tyler Kuzee, Engineering Manager, and explained BNSF has focused on dialoguing with
surrounding property owners (SPO) of the proposed vacate right-of-way regarding their concerns
regarding a variety of topics, such as illegal dumping, drainage, access, emergency service
routes, etcetera. Mr. Woods requested the Board's approval of said request. Mr. Kuzee spoke
regarding SPO concerns, adding requests to maintain private irrigation ditches across BNSF land,
and summarized how BNSF has addressed the SPOs concerns. He stated BNSF is requesting
the right-of-way be vacated today to allow them to proceed with the project, relocate utilities, and
prepare the area for drainage to ensure it is maintained during construction. Mr. Woods added
there is a construction timeline for the project and they need to proceed with preparing the site for
development, specifically to allow BNSF to secure it's property on both sides of CR 41, which will
also deter further criminal activity, inhibit illegal dumping, facilitate utility planning and relocations,
and aid site plan and development for the intermodal facility.
▪ Commissioner Freeman stated BNSF has satisfied the Farmers Reservoir and Irrigation
Company (FRICO) requests, which he commented is often difficult, and congratulated BNSF for
mitigating the impacts of the closure.
• In response to Commissioner Saine, Mr. Kuzee confirmed BNSF is mitigating the illegal
dumping and removing the structures. Commissioner Saine inquired into the perceived contention
between the Towns of Hudson and Lochbuie, and the role the Board plays in today's hearing, and
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HEARING CERTIFICATION - BNSF RAILWAY COMPANY AND ALAN AGNEW
PAGE 2
in response, Mr. Woods clarified the purpose of the hearing is to consider the vacation of the road
right-of-way, which he believes is appropriate given the above mitigated factors and satisfied
criteria. After further discussion between Commissioner Saine and Mr. Woods, he further clarified
the next steps that would occur if the road right-of-way were vacated today.
E Commissioner James asked for the criteria in the Weld County Code that the Board is to
consider in relation to said request for vacated road right-of-way and Ms. McDougal requested a
moment to satisfy his request.
▪ In response to Chair Ross, Mr. Kuzee stated BNSF discussed emergency response times
with the Town of Lochbuie, who had direct conversations with the local fire chief and he did not
have any concerns. Mr. Kuzee further stated BNSF is currently in the design phase and hoping
to commence construction in the next couple of months.
▪ In response to Commissioner Saine, Commissioner James and Ms. McDougal stated the
Board is only to consider Sections 8-16-30 and 8-16-40 of the Weld County Code. After discussion
amongst the Board, Mr. Woods stated BNSF has applied for a State of Colorado grant, but there
is no guarantee that it will be awarded, but the grant funding pertains to a different area of the
project than is being discussed today.
El In response to Chair Ross, Ms. McDougal stated she believes BNSF complies with the
requirements of Section 8-16-40 of the Weld County Code.
IE Candace Nolf, Town of Hudson Councilmember, read a letter from the Town Council,
marked as Exhibit "A," requested the Board not approve the road right-of-way vacation at this
time, and stated she would like assurances that BNSF's request meets all criteria of the Weld
County Code because she believes it appears the Board has already made a decision.
Chair Ross assured Ms. Nolf a decision has not been made. In response to Commissioner Saine,
Ms. Nolf stated approval of the road right-of-way vacation could harm the abilities of Weld County
property owners in this vicinity to make a choice regarding annexation. In response to
Commissioner James, Ms. Nolf stated she has not reviewed the Weld County Code to determine
compliance of this matter with Section 8-16-40. Commissioner James stated the Board will review
the criteria in today's hearing. In response to Chair Ross, Ms. McDougal confirmed the requested
road right-of-way to be vacated is owned by Weld County. Commissioner Saine stated the Board's
constituents in the Town of Hudson would be at a disservice if the request is approved today.
There was further discussion amongst the Board.
• Nicholas Hartman, Town of Hudson Attorney, clarified the Town's Muscle Cat Annexation
utilizes CR 41 right-of-way to create contiguity, stated the Towns are nearing mitigation within the
next three (3) months, and requested the Board consider a continuance. In response to
Commissioner James, Mr. Hartman confirmed the Town of Hudson could only use this portion of
CR 41 right-of-way for contiguity if their annexation is approved. Commissioner James explained
the conflicting annexations cannot be considered today because they have not been approved.
El Joe Hammock, Mayor of the Town of Hudson, discussed the conflicting annexations and
requested the Board allow the people of Weld County to vote on the request.
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HEARING CERTIFICATION - BNSF RAILWAY COMPANY AND ALAN AGNEW
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AJ Euckert, Town of Lochbuie Manager, thanked the Board for their consideration and stated
the Town of Lochbuie supports the road right-of-way vacation request, which will allow the
planning and implementation of the utility relocation to serve the BNSF project. He stated the size
of the project demands that work begin immediately and relayed the fire chief and police
department have no concerns with responding to the area.
• Maureen Juran, Town of Lochbuie Attorney, asked the Board to consider both State of
Colorado Statute and the Weld County Code, and stated it is not appropriate for the Board to
consider the conflicting annexations, as that is a matter for District Court. She requested approval
of the road right-of-way vacation request. Commissioner Saine discussed the County's role.
• Rich Werner, Upstate Colorado Economic Development, spoke in favor of the road
right-of-way vacation request due to the economic development significance of the BNSF project.
• Ray Jones, Town of Hudson resident, stated his irrigation water runs through the area and
he must have access, thus he is hoping BNSF will accommodate his request. In response to Chair
Ross, Mr. Jones stated he has been in contact with BNSF. In response to Commissioner James,
Mr. Jones stated he does not yet have a formal agreement with BNSF. Responding further to
Commissioner James, Mr. Woods and Mr. Kuzee stated lateral irrigation concerns will be
preserved, vacating this portion of CR 41 right-of-way will enhance it, and drainage will not be
disrupted during construction. Commissioner Freeman stated most ditches have easements and
the vacation does not affect easements. Mr. Jones provided a map for the record (marked as
Exhibit "B").
• There being no further public comment, Mr. Woods reasserted BNSF has mitigated the
concerns of the SPOs and the petition for vacation meets the criteria of the Weld County Code,
and requested approval.
• Commissioner Saine stated the Board should consider protection of private property owners'
rights and requested a continuance until the District Court process is finalized.
• Commissioner James stated no collusion has occurred, he has not spoken with anyone
regarding this request prior to the hearing, and he must consider the criteria of the Weld County
Code when considering the request. He reviewed Section 8-16-40 with the applicant to confirm
all criteria has been met. At Commissioner James' request, Elizabeth Relford, Interim Director of
the Department of Planning Services, stated the petition has been reviewed by all appropriate
Weld County staff in association with the Weld County Code and for functional classification. She
shared the portion of CR 41 right-of-way in question is a local gravel road and BNSF's
improvements will cover the entire area, whether being considered for annexation or not. She
stated there are no conflicting utilities and explained the County's policy is to retain existing
easements, including for ditches, as discussed above. Ms. Relford confirmed the portion of CR 41
right-of-way in question is not bordered by any municipality and doesn't landlock any existing
parcel.
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HEARING CERTIFICATION - BNSF RAILWAY COMPANY AND ALAN AGNEW
PAGE 4
IE Commissioner James stated he believes the application meets the intent of the Code. In
response to Commissioner James, Ms. McDougal stated there are no State Statutes that override
a Home Rule Charter County's vacation of right-of-way. eChair Freeman stated he believes
the applicant met all five (5) criterions. Ms. Relford explained State Statute was evaluated when
staff last updated Chapter 8 of the Weld County Code. a Commissioner Saine reasserted her
concerns and request for a continuance.
• In response to Commissioner Saine and Chair Ross, Bryce Lange, Town of Hudson
Manager, shared the Town of Hudson is hoping to have a District Court decision on the conflicting
annexations by the end of June, 2024. He also discussed BNSF will need Colorado Department
of Transportation (CDOT) right-of-way vacated as well.
• Commissioner Saine motioned to continue this item until July 31, 2024, at 9:00 a.m.
• Chair Ross asserted there was no collusion of the Board and he has not been in contact
with anyone regarding this vacation. He further explained Weld County owns the right-of-way and
only Weld County can vacate said right-of-way. Ms. McDougal confirmed Chair Ross' statement.
Chair Ross stated he represents at -large Weld County, and the way he represents the people of
Weld County is to uphold the Weld County Code equally and fairly.
• There being no second, the motion for continuance failed.
• After further discussion, Commissioner James moved to approve the Petition for Vacation
of County Road 41 between County Roads 6 and 4. The motion was seconded by
Commissioner Freeman. Commissioner Saine suggested changes to the Weld County Code.
Commissioner Buck and Chair Ross made comments. There being no further discussion, the
motion passed four (4) to one (1), with Commissioner Saine opposed. There being no further
discussion, the hearing was completed at 11:02 a.m.
2024-0606
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HEARING CERTIFICATION - BNSF RAILWAY COMPANY AND ALAN AGNEW
PAGE 5
This Certification was approved on the 22nd day of May, 2024.
BOARD OF COUNTY COMMISSIONERS
WELD COUN
ATTEST:
Weld County Clerk to the Board
B41-telYl ' I,0 O01A0 t)c_
Deputy Clerk to the Board
Kevir-E--itoss, Chair
Perry L. BuI , Pro -Tern
Mike reeman
o K. James
Lori Saine
2024-0606
EG0082
TOWN OF HUDSON
50 South Beech Street, P.O. Box 351, Hudson, CO 80642
Phone: (303) 536-9311 Fax: (303) 536-4753
www.hudsoncolorado.org
5/8/2024
RE: Petition to Vacate a Portion of Weld County Road 41
Dear Weld County Board of County Commissioners:
On March 29th, Hudson received a signed petition for the "Ranchos East" annexation. We sent a
courtesy email to Lochbuie to inform them of the proposed annexation and to offer a "50/50"
resolution, in which Lochbuie and Hudson would split net revenues from BNSF's development
"50/50" if it was annexed to Hudson. Hudson has emailed Lochbuie three times since March 29th to set
up a meeting to discuss a resolution. None of Hudson's offers were accepted. It was puzzling why
these offers were dismissed out of hand, when both the County and BNSF encouraged Hudson and
Lochbuie to work together on a resolution. It is evident that there was no serious consideration on
Lochbuie's part.
On Sunday, May 5th, BNSF submitted 3 petitions for annexation to Lochbuie. On Monday, May 6th,
Lochbuie accepted its petitions. Hudson did not receive any communication from Lochbuie with a
desire to seek a "50/50" resolution, as BNSF and the County encouraged, seemingly instead intending
to obtain 100% of the benefits of the proposed development for Lochbuie whist deflecting 100% of the
impacts of the development onto Hudson. This is unfortunate, but not surprising given Lochbuie's
approach to negotiations.
However, what is more troubling is that BNSF developed a plat that presupposes the vacation of the
portion of WCR 41 at issue today and Lochbuie has accepted it in on Monday without any
acknowledgement of the creation of an additional conflicting annexation with MSLCAT — seemingly
also presupposing the vacation of that portion of WCR 41 and the dismissal of Hudson's annexation of
MSLCAT. Unless Lochbuie and BNSF can read the BOCC's minds or see into the future, it seems
that Lochbuie and BNSF already know what the BOCC is going to do today before the BOCC has
even met. We hope that the County has not already decided on the vacation of WCR 41 to pave a path
forward for Lochbuie by destroying the one laid by Hudson.
If the BOCC hasn't picked a side yet and Lochbuie and BNSF are making far-fetched assumptions
about what the BOCC will do today and are getting ahead of themselves, Hudson asks that the BOCC
continue to not pick a side because there is still time and reason for the BOCC to maintain a neutral
stance on annexation disputes between Hudson and Lochbuie. We aren't asking the County to even the
odds or fight for the underdog. We are asking that the County not add an additional level of pressure to
hurt Hudson that may not ultimately be needed to reach a resolution.
The Town of Hudson continues to request that the County not act to vacate a portion WCR 41. Hudson
still believes that the resolution of the conflicting annexation between Hudson and Lochbuie, which
encompasses the portion of WCR 41 sought to be vacated, should involve adjacent property owners
along the petitioned rights of way. These citizens should be allowed to cast a vote on which
municipality's annexation moves forward. Action now by the BOCC to vacate would serve to remove
this choice from voters.
Hudson believes that property owners along petitioned rights of way own to the centerline of the road,
and, therefore, that they are entitled to vote within the area of the conflicting annexations The issue of
who the electorate is is being litigated by Hudson and Lochbuie at this time, and the Weld County
District Court will ultimately enter an order on the matter
In the meantime, Hudson requests that the County not vacate right of way at WCR 41 because doing
so would not only short circuit Hudson's ability to pursue the conflicting annexation, but, more
importantly, would eliminate the possibility that citizens adjacent to the conflicting nghts of way could
have a voice in resolving this matter The citizens that will be directly impacted by the proposed
development
The current timeline for resolution of the conflicting annexation that includes a portion of WCR 41 is
as follows
On 4/17/2024, Hudson and Lochbuie submitted initial briefs to the Court on the question of who
should be eligible to vote in the conflicting annexation election
Today, both towns will submit response briefs
On 5/15/2024, both towns will submit reply briefs The Court may thereafter request arguments or
make a decision on the composition of the electorate in the annexation election
On 5/29/2024, the Town Council of Hudson and the Board of Trustees of Lochbuie will
participate in court -ordered mediation to discuss the possibility of settling the conflicting
annexation without resort to an election If there is no resolution through mediation, the
annexation election would proceed
As early as late June or July, -the annexation election could be held, the -actual -timing of the
election would be established by the Court
Instead of the County deciding, Hudson believes a court -ordered election involving all eligible electors
is the fairest and most impartial way to resolve the conflicting annexation Even if the County does
not agree with Hudson's position, the County could allow the process to play out before vacating
Moreover, because that portion of WCR 41 sought to be vacated will likely become part of either
Hudson or Lochbuie, depending on the results of an election, it is prudent for the County to defer the
decision on vacation so that the municipality that ultimately annexes this right of way can consider the
matter
From a timing standpoint, the process involved in resolving the conflicting annexation through a court -
ordered election should be resolved before CDOT makes a decision on the vacation of their right of
way for BNSF At which time, depending on the results of the court -ordered election, BNSF could go
on to seek further land use approvals from the annexing municipality The County does not need to
step in now to decide the vacation issue
Respectfully submitted,
Hudson Town Council
COL Mail - Hudson-Lochbuie Proposal https:llmail.aol.com/d/folders/85/messages/AMs4VwAywjdcXjx4_...
Hudson-Lochbuie Proposal
From: rayjay1921@aol.com(rayjay1921 @aol.com)
To: james.ball@bnsf.com
Date: Thursday, February 6, 2020 at 01:37 PM MST
Dear Mr. Ball
EXHIBIT
-ocooCo
Thanks again for discussing my concerns with my Irrigation Ditch that crosses the property that is being
developed along 1-76 between Lochbuie and Hudson Colorado.
Attached is your map of Proposed Development with a line drawn approximately where my Irrigation Ditch
currently crosses. There are numerous ways this can be rerouted once the current residences are removed, I will be
glad to meet with you or
your representatives to discuss and plan for a relocated ditch. One other thing is timing as my Water Season
typically starts in April and ends November 1, so work would need to be completed from November 1 to April 1.
Thanks again for your attention,
Raymond Jones
720-470-5623
email: rayjay1921@aol.com
2227 176 Frontage Rd
Hudson Co 80642
Railroad Development Irrig.pdf
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