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Home My WebLink About20252105.tiffResolution Approve Local Government Land Use Timeline Extension Agreement for Use by Special Review Permit, USR17-0043, Remand Proceedings and Authorize Chair to Sign — Cactus Hill Ranch Company and Simon Contractors, Inc. Whereas, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and Whereas, the Board has been presented with a Local Government Land Use Timeline Extension Agreement for Use by Special Review Permit, USR17-0043, Remand Proceedings among the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, Cactus Hill Ranch Company, and Simon Contractors, Inc., commencing upon full execution of signatures, with further terms and conditions being as stated in said agreement, and Whereas, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. Now, therefore, be it resolved by the Board of County Commissioners of Weld County, Colorado, that the Local Government Land Use Timeline Extension Agreement for Use by Special Review Permit, USR17-0043, Remand Proceedings among the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Department of Planning Services, Cactus Hill Ranch Company, and Simon Contractors, Inc., be, and hereby is, approved. Be it further resolved by the Board that the Chair be, and hereby is, authorized to sign said agreement. The Board of County Commissioners of Weld County, Colorado, approved the above and foregoing Resolution, on motion duly made and seconded, by the following vote on the 23rd day of July, A.D., 2025: Perry L. Buck, Chair: Aye Scott K. James, Pro-Tem: Aye Jason S. Maxey: Aye Lynette Peppier: Aye Kevin D. Ross: Aye Approved as to Form: Bruce Barker, County Attorney Attest: Esther E. Gesick, Clerk to the Board cc : pL(sE/MN/Do/KA0, cA(Be/KM) 0`6/06/25 2025-2105 PL2503 BOARD OF COUNTY COMMISSIONERS PASS -AROUND REVIEW PASS -AROUND TITLE: Extension Agreement for Remand Proceedings DEPARTMENT: County Attorney DATE: July 8, 2025 PERSON REQUESTING: Karin McDougal Brief description of the problem/issue: In 2018, the BOCC approved a USR for a proposed asphalt batch plant facility for Simon Contractors and Cactus Hill Ranch Company. The approval was challenged in a Rule 106 Appeal and was remanded back to the BOCC for further findings. However, the 106 case was stayed while other legal issues between the applicants and other parties were litigated. The outside litigation is now resolved, so the case would be ripe to come back before the BOCC. However, because of the long passage of time, it would have to be treated as almost a new case and require a new hearing as none of the current commissioners were on the Board during the original hearing. The applicant has also been presented an opportunity to annex into Severance and is pursuing that option to see if it is a viable answer. In order to preserve the applicants' rights from the original USR approval, we are asking the BOCC to enter into this "standstill" agreement to preserve the applicants right from the original USR. This would come into play if the annexation process is not successful, and the case will then be remanded back to the County for processing and continuation of the County case. What options exist for the Board? Approve or disapprove the agreement Consequences: If the Board doesn't approve the agreement, the applicants would have to pursue both options simultaneously, requiring unnecessary work for staff and the applicant. Impacts: Costs (Current Fiscal Year / Ongoing or Subsequent Fiscal Years): none Recommendation: Approve the agreement to be placed on agenda for Board consideration. Support Recommendation Schedule Place on BOCC Agenda Work Session Other/Comments: Perry L. Buck Scott K. James Jason S. Maxey Lynette Peppier Kevin D. Ross -7/Z3 ,-49/ 2025-2105 pL Z505 LOCAL GOVERNMENT LAND USE TIMELINE EXTENSION AGREEMENT BETWEEN THE COUNTY OF WELD, COLORADO AND CACTUS HILL RANCH COMPANY and SIMON CONTRACTORS, INC USR17-0043 REMAND PROCEEDINGS INTRODUCTION The County of Weld, Colorado (the "County") and Cactus Hill Ranch Company ("Cactus Hill") and Simon Contractors ("Simon Contractors") (each individually a "Party," or collectively the "Parties") hereby enter into this Timeline Extension Agreement (the "Agreement") to define the applicable deadlines for review and final action by the County on the remand proceedings concerning USR17-0043 (the "Remand"). ARTICLE I. BACKGROUND Section 1.01. Cactus Hill Ranch Company and Simon Contractors applied for USR17-0043 on June 21, 2017, and the USE was approved by the Weld County Board of County Commissioners (the "Board") on February 5, 2018. The subject matter of USR17-0043 is a proposed asphalt batch plant facility (the "Project") within the County's jurisdiction in unincorporated Weld County. Section 1.02. Cactus Hill and Sunon Contractors began to take initial steps to commence work on their project shortly after the Approval Resolution, including constructing initial landscape improvements required by the USR17-0043 Section 1.03. Thomas Moore, K&l,I Company, LLLP, and The Water Supply and Storage Company (WSSC) appealed the approval of USR17-0043 under C.R.C.P. 106 in The water siopii Storage Company o. Board of Connty Commissioners of 'Veld Count, Colorado, Weld County District Court Case No. 2018 CV 30196 (the "Rule 106 Appeal"). Section 1.04. On May 1, 2018, Cactus Hill Ranch Company and Simon Contractors Bled a lawsuit against The Water Supply and Storage Company for declaratory judgment concerning Cactus Hill's right to construct stormwater drainage crossings under the Canal in a lawsuit captioned, Simon Contractors; and Cactus Hill Bauch Corrrpary The lf/uter Srpp(y and Storage Company, Weld County District Court Case No. 2018 CV 30402 (the "Declaratory Judgment" case). Section 1.05. On January 23, 2019 the District Court found that "...the Board abused its discretion when it did not allow further public continent after substantial changes were made to the application and by not relying on competent evidence regarding required Operational Standards." This order requires the Board (and staff) to reconsider USR17-0043 (the "Remand Order"). The required proceedings following the Remand Order are referred to herein as the "Remand Proceedings". Section 1.06. The Rule 106 Appeal and Declaratory Judgment were interrelated proceedings dealing with the interrelated subject matter of USR17-0043 and the Project. Because the Declaratory Judgment action was still pending at the time of the Remand Order, the County agreed to hold permitting requirements and conditions in abeyance pending the remand proceedings and resolution of the Declaratory Judgment Action. Section 1.07. The Declaratory Judgment action was resolved in favor of Cactus Hill Ranch Company, granting it a right of way for the stormwater drainage crossings by its Findings of Fact and Conclusions of Law dated September 2, 2022. WSSC appealed that ruling to the Colorado Court of Appeals, which affirmed the District Court's decision in favor of Cactus Hill Ranch Company on November 22, 2023. WSSC again appealed to the Colorado Supreme Court, which declined to hear that appeal and denied certiorari on August 19, 2024. Section 1.00. Cactus Hill and Suwon Contractors desire to seek annexation of the property that is the subject of USR17-0043 into the Town of Severance and zoning for the Project ("Annexation and Zoning Application"). If successful, the Annexation and Zoning Applications will render moot the Remand Proceedings on USR17-0043. Section 1.09. The Parties agree that substantial duplication of effort and expenditure of resources would occur if the Remand Proceedings, and the Annexation and Zoning Application into the Town of Severance, both moved forward, because substantially the same information would need to be reviewed and considered. Section 1.10. The Board desires to preserve the resources of County taxpayers and County Staff that would result from duplicative proceedings in Weld County and the Town of Severance. Cactus Hill and Simon Contractors likewise desire to avoid duplicative expenditure of both public and private resources. Section 1.11. The parties therefore desire to enter into an agreement under C.R.S. § 24-68- 104(2) and otherwise under Colorado law and the Weld County Code to stay the Remand Proceedings, and to keep open Cactus Hill Ranch and Simon Contractor's vested property rights in USR17-0043 until such time as the Annexation and Zoning Petition is either denied (and not subject to further appeal), approved, or withdrawn. ARTICLE II. TERMS OF AGREEMENT The Parties stipulate and agree to an alternative review and local government action timeline as described below. Section 2.01. The County, acting through the Board, hereby agrees to stay any Remand 2 Proceedings, pending the Annexation and Zoning Application by Cactus Hill and Simon to the Town of Severance. Section 2.02. Simon Contractors and Cactus Hill's property rights associated with USR17- 0043 shall remain vested for one hundred and eighty (180) days following the denial of the Annexation and Zoning Application (and exhaustion of any available appeals) or withdrawal of the Annexation and Zoning Application or for five (5) years from the date of this Agreement, whichever is earlier. Section 2.03. The Parties agree that this agreement to standstill any Remand Proceedings dating the pending Annexation and Zoning Application by Cactus Hill and Simon to the Town of Severance is in the interests of the County, will preserve County resources, and is fair to the County and to the Parties. Section 2.04. The County has considered all relevant circumstances, including but not limited to, the size and phasing of the development, economic cycles, market conditions, and all other relevant circumstances including those recited herein, and finds that this agreement is warranted under the circumstances. ARTICLE III. MISCELLANEOUS Section 3.01 Other than the waiver of the Deadlines, by entering into this Agreement neither party waives any rights or obligations contained within the applicable Code to the Project and the Remand Proceedings. Section 3,02 The undersigned representatives of Cactus Hill Ranch Company and Simon Contractors are each, respectively authorized to enter into this Agreement on behalf of Cactus Hill Ranch Company and Simon Contractors and has full corporate power and authority to carry out its obligations hereunder and consummate the transactions contemplated hereby. Section 3.02 This Agreement has been duly executed and delivered by the County, by Cactus Hill, and by Simon Contractors and constitutes a legal, valid, and binding obligation of each of theta, and is enforceable against each of them and their respective successors and assigns in accordance with its terms. 3 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered as of the date set fords below. CACTUS HILL RANCH COMPANY By: '114 11 - Name: Nels Nelson Title: Presid .o DATE: eQ(� (_ 2 4 COUNTY OF WELD, COLORADO JUL 2 3 2025 Date: _ Attest:` % etD;dA Weld �ouaty Clerk of thyBoard By:Jl Deputy Cler z of the Board a'/.11/1e011:414,e- By Name: Karin McDougal Title: Deputy Weld County Attorney Name: Perry Buck Title: Chair, Board of Weld County Conunissioae Doti: JUL 2 3 2025 JUL 2 3 2025 Date: a 207,5-210S Houstan Aragon From: Sent: To: Cc: Subject: Karin McDougal Monday, July 21, 2025 2:12 PM Houstan Aragon CTB; Bruce Barker RE: SIGNATURE AUTHORITY This is good to go and yes, you may stamp my signature. Thanks. Karin Karin McDougal Deputy County Attorney Weld County Attorney's Office 1150 "0" Street Greeley, CO 80631 970-400-4396 STATEMENT OF CONFIDENTIALITY & DISCLAIMER: The information contained in this email message is attorney privileged and confidential, intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this email is strictly prohibited. If you have received this email in error, please notify us immediately by replying and celete the message. Thank you. From: Houstan Aragon <haragon@weld.gov> Sent: Monday, July 21, 2025 1:54 PM To: Karin McDougal <kmcdougal@weld.gov> Cc: CTB <CTB@co.weld.co.us>; Bruce Barker <bbarker@weld.gov> Subject: SIGNATURE AUTHORITY Importance: High Good afternoon, Karin, In preparation of the attached, pursuant to your request for placement on Wednesday, July 23, 2025, Agenda, please review and grant authority to CTB to stamp your name as to approval of form. Kindly, CoUNTY, CO l-1 Houstan Aragon Deputy Clerk to the Board Desk: 970-400-4224 P.O. 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