HomeMy WebLinkAbout20220403.tiffINVENTORY OF ITEMS FOR CONSIDERATION
Applicant C & H Aggregate, LLC
Case Number 1MJUSR21-7B-298
Submitted or Prepared
Prior to At
Hearing Hearing
1 Letter from Fischer, Brown, Bartlett, Larsen & Irby, PC re: Pierce Lateral Ditch
Company's comments to application dated October 6, 2021
(4 -pages)
X
2 Electronic mail correspondence between C&H Excavation, LLC dba C&H
Solutions LLC and Occidental Petroleum Corporation re Mineral Estate dated
October 4, 2021 through October 19, 2021 (9 pages)
X
3 Evidence of Sign Planting dated November 22, 2021 (2 pages)
X
4 Memorandum - Applicant's request to modify Development Standard No. 7,
dated January 3, 2022 (2 pages)
X
5 Letter of Intent — Pierce Lateral Ditch Company dated January 3, 2022 (2
pages)
X
I hereby certify that the items identified herein were submitted to the Department of Planning Services at
or prior to the scheduled Planning Commissioners hearing.
Kim Jcite ❑ Planner
FISCHER, BROWN, BARTLETT, LARSEN & IRBY, PC
MARGARET A. (Meg) BROWN
DANIEL K. BROWN
BRENT A. BARTLETT
LISA A. LARSEN
SARA J.L. IRBY
TODD W. R0GERS
WHITNEY PHILLIPS
Weld County Planning Department
Attn: Kim Ogle, Planner
155 N. 17th Avenue
Greeley, CO 80631
ATTORNEYS AT LAW
1319 East Prospect Road
Fort Coffins, CO 80525
October 6, 2021
WARD H. FISCHER (1929-1996)
WILLIAM R. FISCHER (1956-2019)
WILLIAM H. BROWN (Of Counsel)
WILLIAM C. GUNN (Of Counsel)
DONALD E. FRICK (Of Counsel)
Phone: 970.407.9000
Fax: 970,407,1055
Website: www.hscherbrownlaw.eom
OCT 112021
Weld County Planning Dept
SENT VIA EMAIL AND REGULAR MAIL
RE: Pierce Lateral Ditch Company's Comments related to Case No. 1MJUSR21-76-
298, regarding,.a major amendment to the Site Specific Development Plan and
USR-298 by C&H'Aggregate, LLC for expansion of open mining operations in
Section 7, Township 8 North, Range 65 West of the 6th P.M. in Weld County,
Colorado for North Weld Gravel Pit.
Dear Mr. Ogle:
Please be advised that Fischer, Brown, Bartlett, Larsen & Irby, P.C., represents the Pierce
Lateral Ditch Company (the "Company"). This letter is being provided in response to C&H
Aggregate, I.,LC's (the "Applicant") application to amend to its site specific development plan
and USR-298 filed under Case No. 1 MJIISR21-76-298 (Application"). Applicant seeks to
expand the North Weld Gravel Pit operations from 80 acres to a total of 522 acres within Section
7, Township 8 North, Range 65 West of the 6tl' P.M. in Weld County, Colorado (the "Property).
The Company owns and operates the Pierce Lateral Ditch (the "Ditch"), which is located on land
adjacent to the Property along the southeast boundary of the proposed expanded open mining
site. Because Applicant's expansion of its mining operations has the potential of impacting the
Company's maintenance and access to the Ditch, and the historical drainage flow and quality of
water flowing from the Property, the Company provides the fi`7llowing comments.
EXHIBIT
t lisqiti-,i.
A. Maintenance and Use of Ditch and Ditch Easement
The Company has a valid and existing right-of-way and casement for the Ditch and
sufficient lands on each side of the Ditch to allow the Company to fully enjoy and utilize the
easement and right of way for access, maintenance, repair and replacement of the Ditch and its
other facilities and appurtenances (the "Ditch Easement"). Under Colorado law, the Company
has the right to reasonably maintain the Ditch, Ditch Easement and its related appurtenances.
Such maintenance includes having sufficient space on each side of the Ditch to be able to access
the Ditch, use heavy equipment for Ditch repairs and to remove obstructions from the Ditch, and
to meet other maintenance obligations, including burning the Ditch in the spring prior to the start
of the irrigation season. All of this historical maintenance of the Ditch and the land needed to
perform such maintenance is imperative for the Company's use, operation and maintenance of
the Ditch and Ditch Easement. In response to these concerns, Applicant indicates the following
in Item 11 of the Application:
There are no ditches or irrigation on the property itself. However, the Pierce
Lateral runs along the southeast border of the mine, C&H Aggregate received
approval from the Pierce Lateral Ditch Company to bring the edge of the mined
land within 50 feel of the ditch batik."
The Company has no recollection of approving a setback of 50 -feet from the ditch bank. Rather,
the County's approval of the Application shall be conditioned upon the edge of the mined land
being no less than eighty (80) feet from the centerline of the Ditch. Further, the County shall
condition its approval of the Application upon the Applicant including a notation on the final
plat/amended site specific development plan recognizing that eighty (80) foot setback from the
centerline of the Pierce Lateral Ditch.
B. Drainage Report and Water Quality
In addition to preserving the Company's right to maintain and access the Ditch, the
Applicant's Drainage Report provided as Item 16 in the Application does not provide sufficient
information and engineering related to whether the expanded mining site will result in any
significant change in the quality of water running off the Property. Given that the site will be
used for sand and gravel operations, which will involve processing of minerals, fueling for
equipment, and other possible hazardous substances, Applicant should ensure that there will be
no contamination of the water flowing or seeping into the Ditch or Lone Tree Creek from the
Property.
Under Colorado law, a property owner cannot unilaterally alter historical drainage
patterns and drainage structures on the property without permission from structure owners,
including ditch companies, and down -gradient landowners. Specifically, "natural drainage
conditions can be altered by an upper [landowner] provided the water is not sent down in a
manner or quantity to do more harm than formerly." Hankins v. Borland, 431 P.2d 1007 (Colo.
1967)(Emphasis added); see also Docheff v. Broomfield, 623 P.2d 69,71(Colo. 1980) (finding
discharge of water that results in harm to lower landowner is a continuing trespass). Further,
pursuant to Weld County's drainage law, "use of irrigation ditches for collection and transport of
either initial or major storm runoff should be prohibited unless specifically provided in the Weld
County master plans or approved by Weld County and the ditch owner."
The Company is under no duty to begin accepting storm water and runoff from the
expanded mining site, which, undoubtedly, will be of a quality that could compromise the
shareholders' water. The Pierce Lateral is obligated to protect the Ditch, its shareholders, and
the public from any harm or injury resulting from use of the Ditch. Before the County approves
the Application, Applicant needs to ensure that the quality of water, including storm water and
runoff, draining from the Property or seeping from the unlined gravel pits into the groundwater
meets or exceeds any current water quality standard, regulation or criteria, including but not
limited to the United States Environmental Protection Agency, the United States Corps of
Engineers, and the Colorado Department of Public Health, Water Quality Control Commission,
or its Division. Additionally, the drainage water that makes its way to the Ditch through
surface water or groundwater shall at all times comply with the most stringent of the following:
(1) any and all water quality standards and criteria for that segment of the South Platte River or
tributaries thereto, including Lone Tree Creek, to which the Ditch discharges; (2) any and all
water quality standards and criteria for that stretch of the river or tributaries thereto from which
the Ditch receives its water; or (3) any and all water quality standards or criteria imposed upon
the Ditch itself by any governmental authority, either now or in the future.
The Company cannot fully comment on Applicant's proposal and request any conditions
of approval to address this concern until Applicant provides additional information and
engineering analysis setting forth how water quality will be managed and how contamination
from Applicant's mining operations will be mitigated so that any water flowing off of the
Property or seeping from the unlined gravel pits will be of the same or better quality that
currently exists.
Seepage from Ditch
Applicant notes in Item 1 of the Application that the gravel pits will be unlined because
"C&H Aggregates does not anticipate mining into the groundwater table." Applicant has not
provided information on how Applicant will address any seepage that accrues in the unlined pits
from the Ditch, which is also unlined. In no event shall the Company be required to mitigate any
water from the Ditch accruing in the pits. As a condition of approval, Applicant shall be required
to work with the Company to enter into a written agreement or such other instrument to address
these concerns and management of the same, which shall include the Company being released
from any liability or responsibility resulting from such circumstances or the Company's
historical operations and delivery of water.
Conclusion
For the aforementioned reasons, the Company reserves the right to make additional
comments as this project moves forward and following review of the final plat/site plan noting
the eighty (80) foot setback from the centerline of the Ditch. The Company may also make
additional comments after reviewing any additional engineering related to the storm flows from
the Property, including water quality management, and following further discussions between the
Applicant and Company to address the concerns related to any water from the Ditch accruing in
the pits. The Company also requests that it is put on notice and receives copies of such
documentation to ensure that the Ditch is protected.
Thank you. Should you have any questions or concerns, please do not hesitate to contact
me.
S inceLy,
Sara J.L. Irby
cc: Board of Directors of Pierce Lateral Ditch Company
From: Derek Daniels
Sent: Tuesday, October 19, 2021 1:30 PM
To: 'Rader, Anthony' <Anthony Rader ox..com>
Cc: Jobe, Don <Don Jobe@oxy.com>; Cliff Simpson <cliff@chexcavation.com>
Subject: RE; Weld County USR
Anthony,
I appreciate your fast response on this and thank you for the clarifications. Our reclamation plan shows
the mine will be reclaimed in tandem with the excavation & mine phasing.
Since there are no immediate plans for oil and gas development at the North Weld Gravel Pit site, I
believe we have the answers we need.
I understand you have a right to claim the oil & gas on the site, however I believe this can be handled
between Oxy & the Land Owner at the time of development.
Since we have missed the timeline for the waiver, October 5`h will be the start of your 30 day notice.
Best,
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 97O-834-2247
Mobile: 970-590-1688
Fax: 97O -834-22O9
■
SOLUTIONS
EXHIBIT
i rn�-11.-v13
t
From: Rader, Anthony <Anthony Rader@oxy.com>
Sent: Tuesday, October 19, 2021 12:34 PM
To: Derek Daniels <derek@chexcavation.com>
Cc: Jobe, Don <Don Jobe@oxy.com>; Cliff Simpson <cl€ff@chexcayation .coi n>
Subject: RE: Weld County USR
Derek,
Please see a response to your questions below. Please let me know if you would like to schedule a
phone call.
Regards,
Anthony
From: Derek Daniels <derek@chexcayation.com>
Sent: Tuesday, October 19, 2021 9:31 AM
To: Rader, Anthony <Anthony Rader@oxv.cam>
Cc: Jobe, Don <Don Jobe@oxy.com>; Cliff Simpson <cliff@chexcavation.com>
Subject: [EXTERNAL] RE: Weld County USR
WARNING - This message is from an EXTERNAL SENDER - be CAUTIOUS,
particularly with links and attachments.
Anthony,
After further investigation of the oil and gas development in the area, I have discovered there is very
little oil and gas development surrounding the North Weld Gravel Pit.
A few questions & comments:
1. What are your plans for developing oil and gas within the gravel pit boundary? Anadarko does
not have a current plan for developing its minerals within the gravel pit boundary.
2. Can you provide a site plan to establish a surface use agreement with the land owner? This
could take several weeks to establish a potential size and location on the property.
3. I feel the subsurface easement you sent may be a little to broad without a site plan attached.
The subsurface easement would provide an alternative to a Surface Use Agreement rather than
trying to negotiate something that restricts the ability to mine the gravel deposits and may not
end up being the ideal location for oil and gas development. It would cover the entire property
to allow us greater flexibility for use and development from off the property during the term of
your mining operations.
4. Our reclamation plan with the DRMS is putting the property back to range land. What is the
estimated timeline when you would expect the pits are backfllled and reclaimed?
Best,
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-590-1688
Fax: 970-834-2209
From: Rader, Anthony <Anthony Radef@oxy,com>
Sent: Wednesday, October 13, 20217:14 AM
To: Derek Daniels <derek@chexcavation.com>
Cc: Jobe, Don <Don Jobe(c oxy.com>; Cliff Simpson <cliff@chexcayation.com>
Subject: RE: Weld County USR
Derek,
I've reviewed the application. It appears as though the expansion of the mine is rather significant.
Currently, Anadarko doesn't have any immediate plans for oil and gas development in this area, but the
expansion is rendering the majority of a section undevelopable for siting an oil and gas location on the
surface of the ground for an indefinite period of time.
Would the surface owner be willing to grant the attached subsurface easement on the property in lieu
of negotiating a surface use agreement or relinquishment from Anadarko? If so, we could provide the
notice waiver. Otherwise, we need to evaluate and better understand if a Surface Use Agreement is
appropriate for this property in order to preserve the ability to develop these minerals in the future.
Regards,
Anthony Rader
Team Lead Land
r�
OXV
s
1099 18th Street, Suite 700, Denver, CC 80202
720-929-3033 (w), 570-220-3139 (c)
From: Derek Daniels <derekPchexcavation.corn>
Sent: Wednesday, October 6, 2021 1:39 PM
To: Rader, Anthony <Anthony Rader@oxy.corn>
Cc: Jobe, Don <Don Joke Eoxy.com>; Cliff Simpson <cliff@chexcavation.com>
Subject: [EXTERNAL] RE: Weld County USR
WARNING - This message is from an EXTERNAL SENDER - be CAUTIOUS,
particularly with links and attachments.
Good afternoon Anthony,
Just reaching out to see if you had any questions or concerns about the notice.
Thanks again for your help with this!
Best
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-590-1688
Fax: 970-834-2209
SOLUTIONS
From: Derek Daniels
Sent: Tuesday, October 5, 20217:21 AM
To: Rader, Anthony <Anthony Rader@o .com>
Cc: Jobe, Don <Don Jobe@oxy.com>; Cliff Simpson <cliff@chexcavation.corn>
Subject: RE: Weld County USR
Good morning,
Please see notice below:
The Weld County Planning Department has received a Planning Major Amendment to USR application,
case # 1MJUSR21-76-298, in which your agency may have an interest. Planning staff requests you review
the application materials, and return the Referral Form to Kim Ogle by the date specified on the Referral
Form attached in the online permitting center. To view application materials, visit https://accela-
aca.co.weld.co.us/CitizenAccess/Default.aspx or navigate to weldgov.com > departments > planning and
zoning > online e -permitting. Then,
* Click on "Planning" tab on the menu bar
* Under General Search, type case# 1MJUSR21-76-298, into the Record Number box and search
* Click on the "Record Info" arrow drop -down menu
* Click on "Attachments" to review the application materials
If you have any questions, please contact your assigned planner: Kim Ogle at 970-400-6100
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-59o-1688
Fax: 970-834-2209
From: Derek Daniels
Sent: Monday, October 4, 2021 2:51 PM
To: Rader, Anthony <Anthony Rader@oxy.com>
Cc: Jobe, Don <Don Jobe@oxy..com>; Cliff Simpson <cliff@u. chexcauation.earn>
Subject: RE: Weld County USR
Anthony,
I apologize for the delayed response. I have requested a copy of the notice from the Weld County
Planner. Once I get it I will send it over. Thank you!
Best,
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-590-1688
Fax: 970-834-2209
From: Rader, Anthony <Anthony Rader@oxy.com>
Sent: Monday, October 4, 2021 1218 PM
To: Derek Daniels <derek chexcavation.com>
Cc: Jobe, Don <Don Jobe@oxy.com>; Cliff Simpson <clif@chexcavation.com>
Subject: RE: Weld County USR
Derek,
Can you provide is with the notification so we can review?
Regards,
Anthony
From: Derek Daniels <derek@chexcavation.com>
Sent: Monday, October 4, 2021 12:15 PM
To: Rader, Anthony <Anthonay Rader Woxy,com>
Cc: Jobe, Don <Don Jobe@..xy.com>; Cliff Simpson <cliff@clhexcavation.com>
Subject: [EXTERNAL] Weld County USR
WARNING - This message is from an EXTERNAL SENDER - be CAUTIOUS,
particularly with links and attachments.
Gentleman,
My name is Derek Daniels from C&H Excavation. We are currently working on a land use permit on
Parcel Number 0551070000019, Section 7 Township 8N Range 65W. Located in Weld County Colorado.
This is a railroad section that Oxy/Anadarko is the current lease holder on. The land use under review, is
a sand and gravel operation that has been in place since the early 70's, and we are applying for further
use of the property.
The reason for this email is to request a written approval to negate the 30 day public notice protocol for
a review date on November 2nd 2021.
Due to the current atmosphere at Weld County Planning & Zoning, they have been able to advance our
USR hearing to the 2nd of November which does not give us 30 calendar days for your notice to age.
As this has been a two year process I hope you can understand our appreciation in any help you may
give us.
Please reach out if you have any questions or concerns.
Thank you,
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-590-1688
Fax: 970-834-2209
so urn Otis
PLANNING COMMISSION AND BOARD OF COUNTY
COMMISSIONERS' SIGN POSTING CERTIFICATE
The last day to post the sign is December 22, 2021 the sign shall be posted adjacent to and
visible from a publicly maintained road right-of-way. In the event the property being
considered for a special review is not adjacent to a publicly maintained road right-of-way,
the department of planning services shall post one sign in the most prominent place on the
property and post a second sign at the point at which the driveway (access drive) intersects
a publicly maintained road right-of-way.
I, Kim Ogle, hereby certify under penalties of perjury that the sign was posted on the
property at least ten days before the Planning Commissioners hearing and the Board of
Commissioners hearing for:
A Major Amendment to a Site Specific Development Plan and Special Review Permit, SUP -
298, for open mining (sand, gravel and stone) and processing of minerals, importation of
aggregate (sand, gravel and stone) from off site, mine office with scale house and scale, a
fueling/lubricating station, portable generators, mobile mining equipment parking and
storage, and employee and vendor parking, and up to ten (10) conex containers for storage
of products and equipment associated with operations outside of subdivisions and historic
townsites in the A (Agricultural) Zone District
KIM OGLE
Name of Person Posting Sign
ii
SignSigr�p of Person Posting Sign
STATE OF COLORADO )
) ss.
COUNTY OF WELD )
The foregoing instrument was subscribed and sworn to me this _ day of a 2021
WITNESS my hand and official seal.
KRISTINE RANSLEMi
NOTARY PUBLIC
Notary Public STATE OF COLORADO
NOTARY 1D 20124034827
MY COMMISSION EXPIRES JUNE 05, 2024
My Commission Expires: 1� �� Y
EXHIBIT
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Piabko k 3 ' og tt*is'Propet ° •wnn be -nand Ueei e fl +?
CAUJtty PffliTig.' fl
WELD COUNTY ADMINISTRATION
1150 O" Street • Greeley CU
MEMORANDUM
TO: Planning Commissioners
DATE: January 4, 2022
FROM: Kim Ogle, Planning Services
SUBJECT: Applicant's request to modify Development Standard No. 7
Draft Resolution
Development Standard No. 7 currently states:
The number of on -site company employees shall be up to up to twelve (12)
The
applicant's
requested modification to Development
Standard No. 7 states:
The
number of
on -site company employees shall be up
to up to eighteen (18)
EXHIBIT
2
From: Derek Daniels <derek@chexcavation,com>
Sent: Monday, January 3, 2022 4:07 PM
To: Kim Ogle <kogle@weldgov,com>
Cc: Cliff Simpson <cliff@chexcavation.com>; Jared Dains <jareddains@applegategroup.com>
Subject: RE: PC Agenda
Caution: This email originated from outside of Weld County Government. Do not click links or open attachments
unless you recognize the sender and know the content is safe.
Kim,
For future growth, I would like to change the proposed North Weld Gravel Pit personnel from 12 to 18
employees at any given time.
Thank you for your consideration & sorry for any inconvenience this may cause. See you tomorrow sir.
Best,
Derek Daniels
General Manager
C&H Excavation, LLC
dba: C&H Solutions, LLC
Office: 970-834-2247
Mobile: 970-590-1688
Fax: 970-834-2209
SOLUTIONS
Pierce Lateral Ditch Company
20378 WCR 86
Ault, Colorado 80610
January 3, 2022
Mr. Cliff Simpson
C&H Aggregates, LLC
46335 C.R. 39
Nunn, CO 80648
SENT VIA EMAIL
Subject: Letter of Intent re: Case Number 1 MJUSR21-298-
Pierce Lateral Ditch Company Comments Letter and Referral Form re: C&H
Aggregate's Application
Dear Mr. Simpson:
This letter is to acknowledge the current understanding between C&H Aggregates, LLC
("C&H") and the Pierce Lateral Ditch Company (the "Company") concerning C&H's
application to amend its site specific development plan and USR-298 filed under Case No.
1MJUSR21-76-298 ("Application"), whereby C&H seeks to expand the North Weld Gravel Pit
operations from 80 acres to 522 acres Section 7, Township 8 North, Range 65 West of the Gtr,
P.M. in Weld County, Colorado (the "Property). The Company owns and operates the Pierce
Lateral Ditch (the "Ditch'), which is located on land adjacent to the Property along the southeast
boundary of the proposed expanded open mining site. Because of this, the Company provided
comments to the Weld County Planning Department in a letter dated October 6, 2021
("Comments Letter").
Through discussions between C&H and the Company, and, by this letter, the Company
confirms acceptance of C&H's plans showing the edge of the mined land being located within
fifty (50') feet of the ditch bank of the Ditch. Accordingly, the Company is no longer requesting
C&H to increase the setback to eighty (80') feet from the centerline of the Ditch.
Additionally, the Company further confirms that C&H has satisfied the Company's
concerns related to any drainage or water quality concerns outlined in the Company's Comments
Letter.
By their signatures below, the Parties acknowledge that they have been discussing in
good faith the Company's remaining concern related to seepage from the Ditch and having the
Parties enter into a Structure Agreement to memorialize their mutual understanding. To date, the
Parties have reached an understanding on a majority of the terms and conditions of the Structure
EXHIBIT
5
98
---. . L �/
Agreement, including terms and conditions to address the Company's concerns related to
potential seepage from the Ditch accruing to the unlined pits, management of the same, and the
Company being released from liability or responsibility resulting from such circumstances or the
Company's historical operations. The Parties intend on working in good faith to finalize a
Structure Agreement, which they reasonably believe will be reached within the next month.
This Letter of Intent sets forth the Parties' current understanding of the Company's
remaining concerns as outlined above, but nothing contained herein shall be deemed to create
any legally binding obligation on either C&H's or the Company's part. Both Parties
acknowledge that there shall be no binding agreement between the Parties until such time as both
Parties have fully executed a mutually acceptable written Structure Agreement. Any changes to
this Letter of Intent may be made upon mutual consent of the Parties.
If you have any questions or need anything else from us at this time, please let me know.
We took forward to working with you to complete this transaction.
Sincerely,
PIERCE LATERAL DITCH COMPANY
Brian Foss
Board hoe bar
Date:
C&H AGGREGATES, LLC
Acknowledged and Agreed:
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