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Home My WebLink About20230777.tiffHEARING CERTIFICATION DOCKET NO. 2023-21.B RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT, USR23-0005, FOR A SOLAR ENERGY FACILITY (SEF) OUTSIDE OF SUBDIVISIONS AND HISTORIC TOWNSITES IN THE A (AGRICULTURAL) ZONE DISTRICT - KENNETH HARRING, C/O CBEP SOLAR 6, LLC A public hearing was conducted on May 3, 2023, at 10:00 a.m., with the following present: Commissioner Mike Freeman, Chair Commissioner Perry L. Buck, Pro-Tem Commissioner Scott K. James Commissioner Kevin D. Ross Commissioner Lori Saine Also present: Acting Clerk to the Board, Jess Reid Assistant County Attorney, Karin McDougal Department of Planning Services representative, Kim Ogle Department of Public Health and Environment representative, Lauren Light The following business was transacted: Ei I hereby certify that pursuant to a notice dated February 15, 2023, and duly published February 17, 2023, in the Greeley Tribune, a public hearing was conducted on March 22, 2023, to consider the request of Kenneth Harring, do CBEP Solar 6, LLC, for a Site Specific Development Plan and Use by Special Review Permit, USR23-0005, for a Solar Energy Facility (SEF) outside of subdivisions and historic townsites in the A (Agricultural) Zone District. At said hearing the Board continued the matter to May 3, 2023, to allow the applicant adequate time to address the concerns of surrounding property owners. Karin McDougal, Assistant County Attorney, made this a matter of record. Kim Ogle, Department of Planning Services, presented the general location of the site, which is located within the three (3) mile referral area and the Coordinated Planning Agreement (CPA) area of the Town of Eaton, which did not return the Notice of Inquiry form or a referral response. He described the facility's proximity to the surrounding homes and indicated notice was sent to nine (9) surrounding property owners (SPOs), being within 500 feet of the solar facility footprint, and mentioned no correspondence was received in return. He stated the applicant had offered screening and landscaping options for those within 500 feet of the facility and shared, per the Development Review staff, the proposed access will be onto County Road (CR) 39, at an existing, unpermitted access point, which would require an access easement and permit. He provided traffic counts for this portion of CR 39, described the anticipated traffic associated with the proposed use, noted a Road Maintenance Agreement will be required, and confirmed the site meets a stormwater detention exception. Mr. Ogle explained the solar facility would be a part of Xcel Energy's Solar Rewards Community Program, provided details of the solar panel installation, indicated there would be grazing sheep on the land and relayed the land has no water rights. He referenced the Decommissioning and Reclamation Plans and entered the unfavorable c c : pi. ('rv/ww1Ko) 06/09/23 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 2 recommendation of the Planning Commission into the record, noting the Planning Commission (PC) cited Section 23-2-220.A.2 (Intent of the A [Agricultural] Zone District) and Section 23-2-220.A.3 (the uses which would be permitted will be compatible with the existing surrounding land uses) as reasons for their recommendation of denial and displayed images of the site and surrounding views. IE Lauren Light, Department of Public Health and Environment, relayed since there will be no on -site employees, screened, portable toilets are acceptable, during construction. She indicated sheep would be used to control the weeds, water would be provided by a water truck and Development Standards #13-#18 address environmental health items. Zach Brammer, Cloudbreak Energy Partners (Cloudbreak), represented the applicant and introduced other members of his team. He provided a PowerPoint presentation, which included information about himself, Cloudbreak and other parties involved in the application. He went on to discuss the community benefits of the solar facility, the facility's footprint, which was made smaller to address surrounding property owner (SPO) concerns, and details of the location analysis. Bobby Dishell, Moye White, LLP, reviewed slides regarding the Weld County Code requirements. Mr. Brammer discussed the water situation on the parcel, stating the property owner has shares of the For Far Lateral, but the ditch company only owns carrying rights, not water. Thus, he asserted, there is no water on this property. He stated a well has been approved for the watering of livestock and the irrigation of up to one (1) acre of landscape, and relayed water trucks will be used to establish vegetation in the pasture. Mr. Dishell addressed Section 23-2-220.A.2 and the Planning Commission's concern of prime agricultural farmland being taken out of production by reiterating the property has no water, therefore, it cannot be farmed. With regard to Section 23-2-220.A.3, Mr. Brammer addressed noise concerns, indicating the inverters only produce noise when the sun is shining, and displayed an exhibit from the Noise Study, which showed the anticipated noise impact falls within Weld County's required noise limits. With regard to Electro-Magnetic Interference (EMI), he stated inverters emit a very low frequency of EMI and confirmed all homes are more than 150 feet away from the inverters. Mr. Brammer discussed the Drainage Study, which indicated there would not be drainage issues, noted the site meets an exception for stormwater detention and mentioned they are going to add a grass swale to the south side of the site as an extra precaution. He stated the Toxic Characteristic Leaching Procedure, performed in September of 2022, indicated no lead was detected in the solar panels, relayed the risk of damage to the panels in the event of extreme weather is low and noted the site is continually, remotely monitored for issues. Lastly, he addressed the concern of wildlife safety, and stated they consulted Colorado Parks and Wildlife (CPW), who indicated the site was located outside of CPW's High Priority Habitats, therefore, they are planning to use all of CPW's recommendations, which include wildlife friendly fencing, cameras to monitor wildlife, no security lighting and pre -construction nesting surveys. Mr. Brammer addressed concerns from SPOs, which had been brought up at the PC hearing and/or the community meeting regarding property values, by citing a study that indicated the solar facility will not adversely impact surrounding home values. Discussing visual impacts, he 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 3 reiterated, for homes within 500 feet of the facility, they will use trees for screening, and showed the location of the proposed trees, as well as a 3-D visual analysis from several viewpoints around the facility. He asserted the glare from the panels would be eliminated by installing the panels at a five (5) degree angle, reiterated the use of a well and water trucks for irrigation water and outlined the benefits of grazing sheep on the land. He addressed manure management by stating they will implement rotational grazing to evenly spread the manure and mentioned the possible use of a harrowing machine and/or off -site composting, if necessary. He cited a study from Germany, which showed the risk of fire from the solar panels is lower than the risk of fire from a household cooking incident and explained there are automatic, and manual shut down features installed. Mr. Brammer discussed the heat island effect and asserted that vegetation will help mitigate this, opposed to having gravel on the ground. He described the limited traffic associated with the site, project clean-up, and grid reliability. He addressed the concern of sheep spreading Catarrhal Fever to nearby cattle, and asserted the disease is carried primarily by pregnant or young sheep, neither of which will be grazing the solar facility property, and lastly, he noted they decreased the facility's footprint by 25% from the original plan. El In response to Commissioner James, Mr. Brammer asserted the hum/vibration created by inverters is similar to that of an AC compressor, and in response to Commissioner Ross, he confirmed there will be 23 acres of grass that will be served by water trucks until the native dry mixture grass is established, and one (1) acre of trees that will be watered by the well. Mr. Dishell described the water had been severed from the land at least ten (10) years prior and that the previous farmer/tenants leased water for their crops. Mr. Brammer confirmed the land is currently irrigated crop land, using leased water. Chair Freeman called for a short recess before public comment began. The Board reconvened and Randy Miller, SPO, stated the site is agricultural land that has been irrigated since at least 2014, when he moved in. He expressed concerns regarding the spread of Catarrhal Fever from the sheep and property values being negatively impacted. Brenda Fisher, SPO, asserted the project continues to change and confirmed the community meeting was held last Thursday. She displayed a copy of the Well Permit, which is categorized as residential, and referenced the petition of those in opposition, containing 17 signatures (Exhibit K). IE Sharon Miller, SPO, referenced the Noise Study and described usual noises heard in the neighborhood, such as wildlife sounds. She expressed concerns about the constant humming noise, glare, heat island, property values, and the applicant's ability to provide enough water to establish vegetation. Delbert Sullivan, SPO, discussed drainage and asserted water can be leased to farm the land. Doug Morrow, SPO, expressed concern with diminished property values and the visual impacts of the solar facility. 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 4 Jim Gies, SPO, stated drainage to the south will affect his property, the proposed use is an eyesore, and asserted solar facilities lead to the loss of farmland. He relayed a solar facility will be destructive to the surrounding eco system, including wildlife in the area and expressed his concern about decreased property values. El Rob Johnson, SPO, stated he shares the Gale Lateral with the subject site, has been involved in other solar projects with Cloudbreak and described them as a standup company. He relayed he participated in input for the County's Solar Code and asserted Cloudbreak is following the Code, as written. He noted leased water is difficult to obtain and requested any crossings of the Gale Lateral be done underground and with the proper permits and fees. Mr. Johnson explained he does not see solar facilities as lasting forever and compared them to oil and gas facilities, which have seen major changes over the years. Lastly, he mentioned he uses solar energy on his personal farms, he has not experienced a glare from the panels and the only noise he hears is when he is standing by the inverter. El As a point of order, Commissioner Saine requested the hearing be held to traditional decorum with regards to people impugning the motives of the audience, applicant, or the Board. CI Janine Mederos, SPO, expressed concern regarding animals being subjected to the noise of vibration, decreased property values, and the precedent of having a commercial enterprise on half of the land. She stated, at the community meeting, Cloudbreak relayed their plan is to sell the solar facility to another company and retain the ground under it and mentioned, if the ground is not irrigated it will produce tumbleweeds. IR Mickey Hatchell, SPO, stated Cloudbreak's plan has changed since the community meeting. He asserted the studies done by CPW are not accurate, described the wildlife that he has seen crossing his property and relayed the nest of bald eagles nearby will be impacted. IE In response to Commissioner James, Mr. Ogle confirmed the USR Permit stays with the land, regardless of ownership. Leon Cozzens represented the Gale and For Far Ditches and stated there are not crossing or easement agreements in place. '` Francisco Botello, SPO, expressed his support of the proposed solar facility and asserted there could be worse things there, such as a huge housing development. He stated the project will provide electricity for many people and relayed another neighbor, who could not be present, feels the same way. El Bruce Johnson, SPO, commended the Commissioners for being strong proponents of property rights and asserted that compatibility is subjective, based on who is asked. He referred to the Planning Staff as professional and described his positive experience with Cloudbreak. He relayed he took part in helping create the current Solar Facility Code, which he believes needs to be upheld. 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 5 Craig Murrant, SPO, expressed his opinion about the best use for the land, property values, and the issue of living by asolar facility. Mr. Dishell requested a short break to in order to prepare a response, which Chair Freeman granted. ▪ The Board reconvened and Jamie Schlangen, TRC, discussed the results of the Drainage Study, reiterated the swale on south side of the site and displayed a map showing the solar facility is distanced from the bald eagle habitats. ▪ Mr. Dishell stated all of the commitments made to the community are written in contracts, which are recorded, and reiterated the ownership of the solar panels will be sold, not the land on which they are installed. Dylan Reitenbach, Green Street Power Partners, confirmed their company will obtain ownership of the solar panels, he will be the contact for concerns, all contractual obligations will be upheld, and they will be good neighbors. Mr. Dishell stated the Board cannot force them to rent water in order to maintain the land as agricultural and explained the Colorado Division of Water Resources permit is classified as residential because it was the best permit for the proposed use, allowing them to water livestock and up to one (1) acre of land. He relayed they were told by Larimer and Weld Ditch Companies to wait until after the permitting process to discuss ditch crossings/easements and indicated they have sent weekly correspondence trying to set a meeting, which is included in Exhibit H. ▪ Mr. Brammer addressed comments from public input, including visual impacts, confirming they have changed since the neighborhood meeting, in order to address SPO concerns, therefore, they do not have new 3-D visualization. He reiterated the land does not have water rights, discussed Catarrhal Fever, and clarified the findings of the property value study. He further discussed the Noise Study, which was done roughly six (6) weeks ago, the Glare Study, reiterating the angling of panels will help mitigate glare, and cited a study on the effects of noise on livestock. He mentioned communication with the two (2) nearest neighbors about the most recent changes to the plan, noted the property to the south is now one-half (1/2) mile away from the nearest solar panels and reiterated that CPW stated the proposed facility will not be destructive to the ecosystem. El In response to Commissioner James, Mr. Dishell confirmed a crossing agreement has not been obtained. Responding to Commissioner Ross, Mr. Brammer displayed a map and indicated the facility is over 500 feet away from the Miller residence and Mr. Reitenbach relayed it will take two (2) to three (3) trucks of water, after seeded, to establish the dry land grass. Mr. Brammer explained they will verify the ages and pregnancy status of the sheep and noted they have the right to graze animals there. ▪ In response to Commissioner Saine, Mr. Ogle explained the Natural Resources Conservation Service's (NRCS) designation of "prime farmland", and Chair Freeman noted those designations 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 6 were established in the 1970s and have not been re-evaluated since. Commissioner Saine asserted "prime farmland" may have been taken out of production in order to build the nearby subdivision(s) and clarified the Right to Farm statement does not mean they are forced to farm or forced to lease water, only that they have the right to do so. Commissioner Ross cited lack of compatibility with surrounding uses, the land being irrigable, the residential Well Permit, and the risk of Catarrhal Fever as reasons he is not in favor of the proposed use. Commissioner James read Code Sections 23-2-230.B.1 through 23-2-230.B.7, summarizing, the outstanding issues were compatibility and the welfare of the inhabitants of the neighborhood. Commissioner Buck stated that Weld County is agricultural and questioned the compatibility, and Commissioner Ross asserted that solar facilities can compatible when the neighbors support it. Chair Freeman stated, in the past, he has been in favor of several solar projects where SPOs were not opposed and reiterated Commissioner Ross' statement that compatibility is determined by the SPO's support of it. Commissioner James asserted people do not want to look at a solar facility, due to its industrial look, and Commissioner Saine relayed viewsheds are not guaranteed, per the Constitution or County Code, and cited Section 23-2-230.B.3 (the uses which will be permitted will be compatible with the existing surrounding land uses), noting the electricity produced from the solar facility will be used for residential use, and reiterated her previous statement that the Board cannot force landowners to farm, or buy water. Chair Freeman polled the Board to gage if it was necessary to go through the Conditions of Approval and Development Standards, and determined it was not. He mentioned that, to date, only one (1) solar facility had been denied due to lack of compatibility. Commissioner Ross moved to deny the request of Kenneth Harring, do CBEP Solar 6, LLC, for a Site Specific Development Plan and Use by Special Review Permit, USR23-0005, for a Solar Energy Facility (SEF) outside of subdivisions and historic townsites in the A (Agricultural) Zone District, based on the recommendation of the Planning Commission, and recited his previously stated reasons, including the potential spread of Catarrhal Fever, the proposed use of a Residential Well Permit, the land being irrigable and lack of compatibility with surrounding land uses. The motion was seconded by Commissioner Buck, and passed on a vote of three (3) to two (2), with Commissioners James and Saine voting no. There being no further discussion, the hearing was completed at 12:29 p.m. 2023-0777 PL2862 HEARING CERTIFICATION - KENNETH HARRING, C/O CBEP SOLAR 6, LLC (USR23-0005) PAGE 7 This Certification was approved on the 17th day of May, 2023. 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