HomeMy WebLinkAbout20222907.tiffPlanner:
CHANGE OF ZONE
STAFF COMMENTS
Diana Aungst
Case Number: COZ22-0009
Owner: Fusaro, LLC do Donald J. Fetters
2114 E. 1-25 Frontage Road, Erie, CO 80516
Hearing Date: October 4, 2022
Representative: Western Engineering Consultants, Inc. LLC do Chadwin Cox
127 South Denver Avenue, Fort Lupton, CO 80621
Request: Change of Zone from the A (Agricultural) Zone District to the C-3 (Business Commercial)
Zone District
Legal Lot B of Recorded Exemption RE -85; being part of the N2SE4 of Section 2, Ti N, R67W
Description: of the 61h P.M., Weld County, Colorado
Location: South of and adjacent to State Highway 52 and west of and adjacent to CR 23
Parcel Size:
+/- 58.6 acres Parcel No. 1469-02-0-00-002
The criteria for review of this Change of Zone are listed in Section 23-2-30 of the Weld County Code.
The Department of Planning Services' staff has received referral responses with comments from the
following agencies:
V V V V V V \%
United Power, Inc., referral dated August 12, 2022
Fort Lupton Fire Protection District, referral dated August 12, 2022
New Brantner Extension Ditch Company, referral dated August 12, 2022
Weld County Oil and Gas Energy Department, referral dated August 22, 2022
Weld County Department of Public Health and Environment, referral dated July 29, 2022
Weld County Department of Planning Services — Code Compliance, referral dated July 26, 2022
Weld County Department of Planning Services — Development Review, referral dated July 28, 2022
The Department of Planning Services' staff has received referral responses without comments from the
following agencies:
V V V V V
City of Dacono, referral dated July 20, 2022
Town of Frederick, referral dated July 21, 2022
Colorado Parks and Wildlife, referral dated July 21, 2022
Weld County School District RE -8, referral dated July 28, 2022
Colorado Division of Water Resources, referral dated July 25, 2022
The Department of Planning Services' staff has not received responses from the following agencies:
▪ City of Fort Lupton
▪ Platte Valley Conservation District
▪ Kerr McGee Oil and Gas Onshore LP
▪ Colorado Department of Transportation
CASE SUMMARY:
COZ22-0009 I Fusaro, LLC
Page 1 of 8
The owner of Elevated Excavating Inc. is requesting to rezone a parcel of land from the A (Agricultural)
Zone District to the C-3 (Business Commercial) Zone District. This parcel is adjacent to the City of Fort
Lupton and State Highway 52. The City of Fort Lupton stated in the Notice of Inquiry form, dated July 6,
2022, that the City is interested in annexing the property. In discussions with the City the applicant stated
that they are not interested in annexing at this time and would look at annexation in the future. The site is
also located within the Weld County Opportunity Zone, as defined in the 2020 Weld County Comprehensive
Plan, being areas conducive for a Change of Zone request.
The owner of Elevated Excavating also owns the property just east of the site on the east side of County
Road 23. This site is about 2.5 acres in size and is zoned C-3 (Business Commercial) with a Site Plan
Review for a commercial business (SPR12-0005) which was Conditionally Approved on September 10,
2012 and recorded on July 3, 2013, under reception no. 3945408. Elevated Excavating is proposing to
purchase the site and submit a Site Plan Review application to expand the business onto the subject
property.
There is an existing building located on the northwest corner of the site and an oil & gas operation in the
southeastern area of the site.
There is an active Code Violation (ZCV22-00023) case on the site. This violation was initiated due to the
storage of multiple semi -trailers and cargo containers without first obtaining the appropriate land use
permits. This case has been forwarded to the County Attorney's Office. If this application is approved, and
once the applicant completes all Conditions of Approval and submission of the final and approved plat for
recording, only a portion of the code violation will be corrected. The applicant still needs to submit a
complete Site Plan Review (SPR) and complete all Conditions of Approval and record the final SPR map
before the Code Violation (ZCV22-00023) would be closed as compliant.
If this application is denied, the associated court case would proceed accordingly. At this time a court date
has not yet been assigned, however, staff is anticipating a court date in October or November 2022.
The subject property is identified as 'a portion of Lot B' of RE -85 which was recorded on October 19, 1973,
under reception no. 1623319. The subject property was divided along the ditch boundary and a portion of
Lot B was conveyed to the property owner on the west side of the ditch. This was an illegal division of land
and in order to create a legal lot the applicant is required to vacate Lot B of RE -85. This RE vacation request
is a Condition of Approval.
THE DEPARTMENT OF PLANNING SERVICES' STAFF RECOMMENDS THAT THIS REQUEST BE
APPROVED FOR THE FOLLOWING REASONS:
1. The submitted materials are in compliance with the application requirements of Section 23-2-50 of
the Weld County Code.
2. The submitted materials are in compliance with Section 23-2-30 of the Weld County Code, as follows:
A. Section 23-2-30.A.1. — That the proposal is consistent with Chapter 22 of the Weld County.
Section 22-4-10.A.1, the Comprehensive Plan Map section, refers to one of the two main
components for siting preference of rezonings and subdivisions. Specifically, that areas of
opportunity for commercial and industrial development are logically developed based on
transportation infrastructure of roads and railroads.
A dependable transportation corridor allows businesses to receive and transport goods in an
efficient manner which allows companies to lower transportation costs and increase
productivity and profits. The site is adjacent to State Highway 52 which is a dependable
transportation corridor and by rezoning the property to C-3 (Business Commercial), a larger
variety of anticipated future uses may benefit from the nearby Highway.
COZ22-0009 I Fusaro, LLC
Page 2 of 8
Section 22-4-10.B.1, being the Weld County Opportunity Zone criteria, states that zone
changes to commercial and industrial are preferred in select areas of the County. Specifically,
within one-half mile of US highways.
This property is located within the one-half mile buffer surrounding State Highway 52, therefore,
is classified as being located within a Weld County Opportunity Zone. As such, the
Comprehensive Plan supports a zone change in this area.
B. 23-2-30.A.2. — The uses which would be allowed on the subject property by granting the
Change of Zone will be compatible with the surrounding land uses.
The surrounding land uses are a mix of agricultural, oil and gas, rural residential, and
commercial and industrial uses. The majority of the adjacent surrounding properties are zoned
A (Agricultural) with one property zoned C-3 (Business Commercial) and this property is owned
by Elevated Excavating (the buyer of the subject property).
The Use by Special Review permits within one (1) mile of the site include, USR19-0034 for
semi -truck parking, USR-671 for farm equipment repair located east of the site. USR-695 and
AMUSR-1259 for mining operations are located east and southeast of the site. USR-1608 and
MUSR14-0020 for concrete batch plants are located southeast of the site. USR-401 (USR-401)
for oil tanks and trucking facility is located northwest of the site and 1M USR18-89-870 for an
agricultural service establishment is located northeast of the site.
There is one (1) Site Plan Review just east of the site, SPR12-0005. This site is owned by
Elevated Excavating (the buyer of the subject property).
The City of Fort Lupton has annexed and zoned about ninety-six (96) acres north of and
adjacent to State Highway 52 (north of the site). The City zoning districts include about thirty
(30) acres of AG (Agricultural), 1.17 acres of C-2 (Heavy Commercial) and 65 acres of PUD
(Planned Unit Development). The PUD includes: C-1 (General Commercial), C-2 (Heavy
Commercial), R -O (Residential and Office), and AG (Agricultural). This City of Fort Lupton PUD
was previously permitted by Weld County as a construction office and shop via USR-1375.
The Department of Planning Services sent notice to fourteen (14) surrounding property owners
within 500 -feet of the subject parcel. One letter was received on September 26, 2022 stating
that the land should remain agricultural. The letter also states that they do not agree with the
Change of zone and they do not know what kind of business will be established on the site.
The site is located within the three (3) mile referral area for the Cities of Fort Lupton and Dacono
and the Town of Frederick. The City of Dacono's and the Town of Frederick's referral agency
comments dated July 20, 2022, and July 21, 2022, respectively indicated no concerns. The
City of Fort Lupton did not return referral agency comments.
The subject site is located within the City of Fort Lupton's Coordinated Planning Agreement
(CPA) boundary. As part of the pre -application process the City was sent a Notice of Inquiry
(NOI). The Cities returned the NOI form dated June 6, 2022, that stated, "The City is interested
in annexation of the property, however, the property owner's representatives have indicated
that the property owner is not interested in annexation at this time but would look at annexation
in the future. The City will review any referral provided concerning this property for land use
application submitted to Weld County for review and provide comments at that time."
This area is designated as "Commercial Transition" and "Agriculture and Rural Residential" on
the City of Fort Lupton's Future Land Use Map adopted May of 2018. The "Commercial
Transition" designation identifies potential growth areas for commercial development outside
the municipal boundaries or primary commercial districts of Fort Lupton. These areas should
support gradual, long-term commercial investment outward from the City's urban core,
including incremental transitioning of agricultural uses to commercial development.
COZ22-0009 I Fusaro, LLC
Page 3 of 8
The "Agriculture & Rural Residential" designation allows for agricultural and related uses as
well as low density residential on the periphery of the planning area, intended to preserve a
generally rural character. This also includes a variety of miscellaneous uses, such as isolated
industrial businesses and semi -rural properties located under Estate Zoning. Given the
availability of viable land for development in more appropriate districts, commercial or
residential investment within agricultural areas should be discouraged. This will help limit
unnecessary loss of agricultural lands and reduce the potential of suburban sprawl.
Future commercial uses will have to be approved through a Site Plan Review or Use by
Special Review process. Site Plan Review and Use by Special Review applications are sent
to referral agencies and surrounding property owner for comments. The Conditions of
Approval and Development Standards applied to both this Change of Zone and any future
Site Plan Reviews or Use by Special Review permits will adequately address and mitigate
potential impacts. Based on the existing uses in the vicinity, a Change of Zone to C-3
(Business Commercial) is compatible with the surrounding land uses.
C. 23-2-30.A.3. — That adequate water and sewer service can be made available to the site to
serve the uses permitted within the proposed zone district.
The COZ application materials included a copy of an approved industrial, irrigation and
commercial water well permit #87088-F issued on June 14, 2022.
A new septic system is proposed for the new building.
D. Section 23-2-30.A.4. - Street or highway facilities providing access to the property are
adequate in size to meet the requirements of the proposed zone districts.
The site is south of and adjacent to State Highway 52 which provides opportunities for
commercial and industrial uses due to efficient access to a regional transportation corridor. The
site has an existing access onto State Highway 52 that is shown on the State Highway 52
Access Control Plan (ACP) as restricted access changing from full access.
This portion of State Highway 52 has been annexed into the City of Fort Lupton, but the
Colorado Department of Transportation (CDOT) has jurisdiction over all accesses to state
highways. CDOT submitted an email dated, June 14, 2022, that stated that the access will be
required to correlate with the access defined by the State Highway 52 Access Control Plan and
a traffic impact study completed by a licensed traffic engineer must be submitted to CDOT for
review and approval. CDOT also stated that any access along State Highway 52 will require a
new access permit application. This includes traffic increases by 20% or greater at city street
and county road intersections along State Highway 52.
Additionally, the site is west of and adjacent to County Road 23, which is classified as a
collector road on the Weld County Functional Classification Map. There are currently two oil
and gas access points onto County Road 23. The most southern one is permitted as AP17-
00330.
The subject property is identified as 'a portion of Lot B' of RE -85 which was recorded on
October 19, 1973, under reception no. 1623319. The subject property was divided along the
ditch boundary and a portion of Lot B was conveyed to the property owner on the west side of
the ditch. This was an illegal division of land and in order to create a legal lot the applicant is
required to vacate Lot B of RE -85. This vacation request is a Condition of Approval.
E. Section 23-2-30.A.5. — In those instances where the following characteristics are applicable to
the rezoning request, the applicant has demonstrated compliance with the applicable
standards:
1) Section 23-2-30.A.5.a. — If the proposed Change of Zone is located within any Overlay
District identified by maps officially adopted by the County, that the applicant has
demonstrated compliance with the County regulations concerning Overlay Districts.
COZ22-0009 I Fusaro, LLC
Page 4 of 8
Compliance may be demonstrated in a previous public hearing or in the hearing concerning
the rezoning application.
The proposed Change of Zone (COZ) site is not within any overlay district officially adopted
by the County, including A -P (Airport) Overlay District, 1-25 Overlay District, Geologic
Hazard Overlay District, Municipal Separate Storm Sewer System area (MS4), Special
Flood Hazard Area, Historic Townsites Overlay District, or Agricultural Heritage Overlay
District.
2) Section 23-2-30.A.5.b. - That the proposed rezoning will not permit the use of any area
known to contain a commercial mineral deposit in a manner which would interfere with the
present or future extraction of such deposit by an extractor to any greater extent than under
the present zoning of the property.
The Geologic Hazards and Mineral Extraction Report from Earth Engineering Consultants,
LLC., dated June 30, 2022, submitted in the application materials, indicates that no
significant sand and gravel deposits are expected on the subject property.
3) Section 23-2-30.A.5.c. - If soil conditions on the site are such that they present moderate
or severe limitations to the construction of structures or facilities proposed for the site,
that such limitations can be overcome and that the limitations will be addressed by the
applicant and/or the applicant's successors or assigns prior to the development of the
property.
The Natural Resources Conservation Services (NRCS) Soil Survey, dated May 5, 2022,
submitted with the application, indicates that the property contains low slope (1-3%) Olney
fine sandy loam soils and that this type of soil does not limit the construction of dwellings
or small commercial buildings. This soil type is classified as ""Prime Farmland if Irrigated
(Soils Erodibility)" and is considered well -drained soil.
This recommendation is based, in part, upon a review of the application materials submitted by the
applicant, other relevant information regarding the request, and responses from referral entities.
THE CHANGE OF ZONE FROM THE A (AGRICULTURAL) ZONE DISTRICT TO THE C-3 (COMMERCIAL
BUSINESS) ZONE DISTRICT IS CONDITIONAL UPON THE FOLLOWING:
1. Prior to recording the plat:
A. The applicant shall submit a letter requesting vacation of Recorded Exemption of RE -85.
(Department of Planning Services)
B. The applicant shall submit a complete Site Plan Review (SPR) application and related fee
within thirty (30) days of the COZ22-0009 being approved by the Board of County
Commissioners. (Department of Planning Services)
C. The applicant shall provide to the Weld County Department of Planning Services a copy of
the access permit issued by the Colorado Department of Transportation (CDOT).
(Department of Planning Services)
D. The applicant shall address the requirements of the Colorado Department of
Transportation (CDOT) as stated in an email dated June 14, 2022. Evidence of such shall
be submitted in writing to the Weld County Department of Planning Services. (Department
of Planning Services)
E. The applicant shall acknowledge the referral comments from the Fort Lupton Fire
Protection District, dated August 12, 2022. Evidence of such shall be submitted in writing
to the Weld County Department of Planning Services. (Department of Planning Services)
F. The applicant shall acknowledge the referral comments from The New Brantner Extension
COZ22-0009 I Fusaro, LLC
Page 5 of 8
Ditch Company, dated August 1, 2022. Evidence of such shall be submitted in writing to
the Weld County Department of Planning Services. (Department of Planning Services)
G. The applicant shall acknowledge the referral comments from United Power, Inc., dated
August 12, 2022. Evidence of such shall be submitted in writing to the Weld County
Department of Planning Services. (Department of Planning Services)
H. The applicant shall acknowledge the referral comments from the Weld County Oil and Gas
Energy Department, as stated in the referral response dated August 22, 2022. Evidence of
such shall be submitted in writing to the Weld County Department of Planning Services.
(Department of Planning Services)
I. The Change of Zone plat shall delineate the following:
1. All sheets of the plat shall be labeled COZ22-0009. (Department of Planning Services)
2. The plat shall adhere to Section 23-2-50.D. of the Weld County Code. (Department of
Planning Services)
3. All recorded easements and rights -of -way shall be delineated on the plat by book and
page number or reception number. (Department of Planning Services)
4. County Road 23 is a paved road and is designated on the Weld County Functional
Classification Map (Code Ordinance 2017-01) as a collector road, which requires 80
feet of right-of-way at full buildout. The applicant shall delineate and label on the plat
the future and existing right-of-way (along with the documents creating the existing
right-of-way) and the physical location of the road. If the existing right-of-way cannot
be verified it shall be dedicated. The applicant shall also delineate the physical location
of the roadway. Pursuant to the definition of setback in the Weld County Code Sec.
23-1-90, the required setback is measured from the future right-of-way line. This road
is maintained by Weld County. (Development Review)
5. Show the Colorado Department of Transportation (CDOT) right-of-way on the plat
along with the documents creating the right-of-way. (Development Review)
6. Show the approved Colorado Department of Transportation (CDOT) access point on
the plat and label with the approved access permit number if applicable. (Development
Review)
7. Show and label the access points onto CR 23 and the usage types. Development
Review will review access locations as part of the plat submittal. (Development
Review)
2. The following notes shall be delineated on the Change of Zone plat:
1) Change of Zone, COZ22-0009, allows for C-3 (Business Commercial) Zone District uses
which shall comply with the requirements set forth in Chapter 23, Article III, Division 3 of
the Weld County Code. (Department of Planning Services)
2) Any future structures or uses on site may be required to obtain approval through a Site
Plan Review or Use by Special Review and the appropriate zoning and building permits.
(Department of Planning Services)
3) The operation shall comply with all applicable rules and regulations of the State and
Federal agencies and the Weld County Code. (Department of Planning Services)
4) The property owner or operator shall be responsible for controlling noxious weeds on the
site, pursuant to Chapter 15, Article I and II, of the Weld County Code. (Development
Review)
COZ22-0009 I Fusaro, LLC
Page 6 of 8
5) Access on the site shall be maintained to mitigate any impacts to the public road including
damages and/or offsite tracking. (Development Review)
6) Weld County will not replace overlapping easements located within existing right-of-way or
pay to relocate existing utilities within the existing County right-of-way. (Development
Review)
7) Any work that may occupy and or encroach upon any County rights -of -way or easement
shall acquire an approved Right -of -Way Use Permit prior to commencement.
(Development Review)
8) The historical flow patterns and runoff amounts will be maintained on the site.
(Development Review)
9) Water service may be obtained from an appropriately permitted well. (Department of Public
Health and Environment)
10) The parcel is currently not served by a municipal sanitary sewer system. Sewage disposal
may be by an on -site wastewater treatment system designed in accordance with the
regulations of the Colorado Department of Public Health and Environment, Water Quality
Control Division, and the Weld County Code in effect at the time of construction, repair,
replacement, or modification of the system. (Department of Public Health and Environment)
11) Activity or use on the surface of the ground over any part of the OWTS must be restricted
to that which shall allow the system to function as designed and which shall not contribute
to compaction of the soil or to structural loading detrimental to the structural integrity or
capability of the component to function as designed. (Department of Public Health and
Environment)
12) Building permits may be required, for any new construction or set up manufactured
structure, per Section 29-3-10 of the Weld County Code. Buildings and structures shall
conform to the requirements of the various codes adopted at the time of permit application.
Currently the following has been adopted by Weld County: 2018 International Building
Codes; 2018 International Energy Code; 2020 National Electrical Code; and Chapter 29 of
the Weld County Code. A Building Permit Application must be completed and two (2)
complete sets of engineered plans bearing the wet stamp of a Colorado registered architect
or engineer must be submitted for review. A Geotechnical Engineering Report, performed
by a Colorado registered engineer, shall be required or an Open Hole Inspection. A building
permit must be issued prior to the start of construction. (Department of Building Inspection)
13) Building Permits issued on the proposed lots will be required to adhere to the fee structure
of the County -Wide Road Fee Impact Program and the County Facility Fee and Drainage
Impact Fee Programs. (Department of Planning Services)
14) Necessary personnel from the Weld County Departments of Planning Services, Public
Works, and Public Health and Environment shall be granted access onto the property at
any reasonable time in order to ensure the activities carried out on the property comply
with the Conditions of Approval and Development Standards stated herein and all
applicable Weld County regulations. (Department of Planning Services)
15) RIGHT TO EXTRACT MINERAL RESOURCES STATEMENT: Weld County has some of
the most abundant mineral resources, including, but not limited to, sand and gravel, oil,
natural gas, and coal. Under title 34 of the Colorado Revised Statutes, minerals are vital
resources because (a) the State's commercial mineral deposits are essential to the State's
economy; (b) the populous counties of the state face a critical shortage of such deposits;
and (c) such deposits should be extracted according to a rational plan, calculated to avoid
waste of such deposits and cause the least practicable disruption of the ecology and quality
of life of the citizens of the populous counties of the state.
COZ22-0009 I Fusaro, LLC
Page 7 of 8
Mineral resource locations are widespread throughout the County and people moving into
these areas must recognize the various impacts associated with this development. Often
times, mineral resource sites are fixed to their geographical and geophysical locations.
Moreover, these resources are protected property rights and mineral owners should be
afforded the opportunity to extract the mineral resource.
3. Upon completion of Conditions of Approval 1. And 2. above, the applicant shall submit one (1)
electronic copy (.pdf) of the plat for preliminary approval to the Weld County Department of
Planning Services. Upon approval of the plat the applicant shall submit a Mylar plat along with
all other documentation required as Conditions of Approval. The Mylar plat shall be recorded
in the office of the Weld County Clerk and Recorder by Department of Planning Services' Staff.
The plat shall be prepared in accordance with the requirements of Section 23-2-50.C. and D.
of the Weld County Code. The Mylar plat and additional requirements shall be submitted within
one -hundred -twenty (120) days from the date of the Board of County Commissioners
resolution. The applicant shall be responsible for paying the recording fee.
4. If a plat has not been recorded within one hundred twenty (120) days of the date of the approval
of the Change of Zone (COZ), or within a date specified by the Board of County
Commissioners, the Board may require the landowner to appear before it and present evidence
substantiating that the COZ has not been abandoned and that the applicant possesses the
willingness and ability to record the plat. The Board of County Commissioners may extend the
date for recording the plat. If the Board determines that conditions supporting the original
approval of the COZ cannot be met, the Board may, after a public hearing, revoke the COZ.
5. In accordance with Appendix 5-J of the Weld County Code, should the Change of Zone plat
not be recorded within the specified timeline from the date of the Board of County
Commissioners Resolution, a $50.00 recording continuance fee shall be added for each
additional 3 -month period.
6. Any approved amendments to the Official Zoning Map shall be effective immediately upon
approval by the Board of County Commissioners unless otherwise specified by the approving
resolution of the Board of County Commissioners. However, no building permit shall be issued,
and no use shall commence on the property until the plat is recorded.
COZ22-0009 I Fusaro, LLC
Page 8 of 8
August 25, 2022
DEPARTMENT OF PLANNING SERVICES
1555 N 17th AVE
GREELEY, CO 80631
WEBSITE: www.weldgov.com
E-MAIL: daungst@co.weld.co.us
PHONE: (970) 400-3524
FAX: (970) 304-6498
Chadwin Cox
127 S. Denver Ave
Fort Lupton, CO 80621
Subject: COZ22-0009 - Change of Zone from the A (Agricultural) Zone District to the C-3 (Business
Commercial) Zone District.
On parcel(s) of land described as:
PT LOT B RE -85; PT N2SE4 SECTION 2, TIN, R67W of the 6th P.M., Weld County, Colorado.
Dear Applicants:
I have scheduled a meeting with the Weld County Planning Commission on October 04, 2022 at 12:30
p.m. A subsequent hearing with the Board of County Commissioners will be held on October 26, 2022
at 10:00 a.m. Both hearings will be held in the Hearing Room, Weld County Administration Building,
1150 O Street, Greeley, Colorado. The property owner and/or authorized agent must be in attendance
to answer any questions the Planning Commission members or Board of County Commissioners may
have.
Colorado Revised Statute, C.R.S.24-65.5-103 (adopted as part of H.B.01-1088) requires notification of
all mineral estate owners 30 days prior to any public hearing. The applicant needs to provide the
Weld County Planning Department with written certification indicating the above requirement has
been met.
A representative from the Department of Planning Services will be out to the property a minimum of
ten days prior to the hearing to post a sign, adjacent to and visible from a publicly maintained road
right-of-way which identifies the hearing time, date, and location. In the event the property is not
adjacent to a publicly maintained road right-of-way, one sign will be posted in the most prominent
place on the property and a second sign posted at the point at which the driveway (access drive)
intersects a publicly maintained road right-of-way.
The Department of Planning Services' staff will make a recommendation concerning this application
to the Weld County Planning Commission and will be included in the staff report one week prior to
the scheduled Planning Commission hearing. You may view the staff report at https://accela-
aca.co.weld.co.us/CitizenAccess
Respectfully,
alV14-P4-j
Diana Aunust
Planner
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