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Home My WebLink About20211163.tiffHEARING CERTIFICATION DOCKET NO. 2019-48.E RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT, USR18-0130, FOR A GREATER THAN 16 -INCH RAW DOMESTIC WATER PIPELINE (PERMANENT 42 -INCH PIPELINE AND ASSOCIATED APPURTENANCES, INCLUDING, BUT NOT LIMITED TO: 1 -MILLION GALLON WATER TANK, TWO PUMP STATIONS, BURIED VALVE ASSEMBLIES, ACCESS MANWAYS, FIBER OPTIC CABLE AND TEMPORARY CONSTRUCTION EASEMENTS) IN THE E (ESTATE) ZONE DISTRICT, THE 1-3 (HEAVY INDUSTRIAL) ZONE DISTRICT, AND THE A (AGRICULTURAL) ZONE DISTRICT - CITY OF THORNTON A public hearing was conducted on May 5, 2021, at 10:00 a.m., with the following present: Commissioner Steve Moreno, Chair Commissioner Scott K. James, Pro -Tern Commissioner Perry L. Buck Commissioner Mike Freeman Commissioner Lori Saine Also present: Acting Clerk to the Board, Jess Reid Assistant County Attorney, Bob Choate Planning Services Department representative, Diana Aungst Public Works Department representative, Mike McRoberts Health Department representative, Lauren Light The following business was transacted: I hereby certify that pursuant to a notice dated April 30, 2019, and duly published May 3, 2019, in the Greeley Tribune, a public hearing was conducted on July 10, 2019, at which time the matter was continued to July 15, 2020, to allow the applicant adequate time to work on obtaining all the necessary easements. On July 15, 2020, the matter was continued to August 26, 2020, to allow adequate time for a supplemental application to be reviewed by the Planning Commission at a hearing scheduled for July 21, 2020. I further certify that pursuant to a notice dated June 24, 2020, and duly published July 1, 2020, in the Greeley Tribune, a public hearing was conducted on August 26, 2020, at which time the matter was continued to September 16, 2020, to allow the City of Thornton adequate time to speak with the Department of Public Works about the feasibility of moving portions of the pipeline into Weld County right-of-way. On September 16, 2020, a public hearing was conducted, at which time the matter was continued to May 5, 2021, to allow the City of Thornton adequate time to continue working with Weld County staff and property owners on relocating the pipeline into County right-of-way, where feasible. On May 5, 2021, a public hearing was conducted to consider the request of the City of Thornton, for a Site Specific Development Plan and Use by Special Review Permit, USR18-0130, for a greater than 16 -inch raw domestic water pipeline (permanent 42 -inch pipeline and associated appurtenances, including but not limited to: 1 -million gallon water tank, two pump stations, buried valve assemblies, access manways, fiber optic cable and temporary construction easements) in the E (Estate) Zone District, CC : PLCDA / TP), PwCc"m' EF-lCLL), CAC P7P>/9C) OCo(O3l DI 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 2 the A (Agricultural) Zone District and the RUA (Regional Urbanized Area) Zone District. Bob Choate, Assistant County Attorney, made this a matter of record. Cl Diana Aungst, Department of Planning Services, presented a summary of the proposal, the general location of the pipeline route, stated 109 referrals were sent out and 38 agencies responded. She provided the history of the project, including the recommendation of denial from the Planning Commission (PC) on July 21, 2020, and indicated on February 24, 2021, the City of Thornton submitted a revised application with minor route changes. She explained the pipeline will be used as a delivery system to transport water through Weld County to the City of Thornton for municipal use and includes appurtenances such as buried fiber optic cable, buried water pipeline structures, valve vaults, water tank, and two pump stations. She relayed the pipeline will be able to deliver 14,000 acre-feet of water annually, which is sufficient to meet the municipal and industrial demands of the City of Thornton's water customers through 2065. She stated criteria used for developing the pipeline location included minimizing impacts to agricultural uses and working with property owners to determine the location of the pipeline, which best met the property owner's reasonable preferences. Ms. Aungst stated the City of Thornton conducted outreach meetings with local governments and agencies that could have potentially been impacted by the pipeline and collected feedback to determine preferences and potential problems with the proposed location of the pipeline. She indicated there would be approximately 34 miles of buried pipeline in Weld County, buried at a minimum of four (4) feet below grade, consisting of a 50 -foot permanent easement and a 40 -foot temporary easement for construction. She provided the details of the buried cable, water tank, pump stations, access, parking and the fence to be constructed. She discussed the intent to construct the pipeline in phases, the number of employees, hours of construction, anticipated timeline, and the number of employees associated with the pipeline's operation. She relayed the Department of Planning Services received many phone calls and letters/emails from interested parties and surrounding property owners (SPO) regarding the pipeline alignment, who expressed concerns with the pipeline crossing their property and negotiations with the City of Thornton. She explained several towns and cities were notified of the proposal and were sent a Notice of Inquiry (NOI), read several of the NOI responses and reiterated the PC's recommendation of denial. In response to Commissioner James, Ms. Aungst confirmed Planning Staff was not aware the City of Thornton did not intend to move any of the pipeline into the County right-of-way until December 21, 2020, and she displayed maps showing the pipeline route. Ei Mike McRoberts, Department of Public Works (PW), stated access for the pipeline construction would utilize up to 60 existing accesses, 40 new accesses would need to be obtained, and identified access locations for the pump stations and the water tank. He indicated the pipeline project will be crossing multiple County, state and municipal roadways, outlined the types of roads that will be crossed, according to the Weld County Functional Classification Map, and named the specific state highways the pipeline will cross. He explained pipeline construction is estimated to take four (4) to ten (10) weeks for each mile of pipeline, not including revegetation activities, the water tank is expected to take one (1) year and the pump stations will take approximately two (2) years. He described the types of vehicles, daily roundtrips and number of employees associated with construction and provided the post -construction traffic information. He stated PW is requiring permanent tracking control for all permanent accesses, temporary tracking control for accesses used for construction only, a Road Maintenance Agreement, required during construction only, and presented the drainage and grading requirements. 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 3 Lauren Light, Department of Public Health and Environment (EH), stated screened, portable toilets are acceptable along the construction route and will need to be removed once construction is complete. She indicated an Air Pollutant Emissions Notice (APEN) Permit would be required during construction, the water tank will have an emergency shut down control system and relayed Development Standards (DS) #19-25 address EH items, Mark Koleber, Thornton Water Project Director for the City of Thornton, provided a PowerPoint presentation (Exhibit X) explaining the background of the project, how the water was acquired, as well as how it has been managed. He described open houses and outreach meetings with ditch, oil and gas, utility and fire companies and iterated the supplemental application submitted in February 2021, addresses the Board's requests from the previous hearing. He provided an update on construction and permitting in Weld County, stating, six (6) miles of pipeline have been installed in Johnstown and Windsor, which will wrap up by early July 2021. He went on to explain the Larimer County Commissioners denied the City of Thornton's application in March 2019, the City of Thornton appealed the decision and in February 2021, the Larimer District Court ruled the Larimer Commissioners exceeded their jurisdiction on a number of the criteria, when denying the application. He mentioned the Court ruled in the City of Thornton's favor on several issues, but noted they also upheld the Larimer Commissioner's ruling on three (3) of the criteria. He indicated the City of Thornton has appealed the District Court ruling, is hoping to work with the Larimer Commissioners to reach a solution, and stated the City of Thornton believes they will receive a permit for the pipeline in Larimer County, through the 1041 process or the courts. He provided the number of easements acquired so far, amount paid to acquire said easements, explained the purpose and need for the additional water supply by 2025, and stated the Thornton Water Project will meet the projected municipal needs of the City of Thornton through 2065. He stated the water will be moved by two (2) ditch companies from the Poudre River, northwest of Fort Collins, to Thornton, provided the details of the proposed infrastructure and summarized the general location of the pipeline. = Mr. Koleber went on to explain how he believed the application met the approval requirements of the Weld County Code. Referring to the Comprehensive Plan, he outlined the measures they have taken to ensure private property rights are protected, including working with property owners on pipeline location, minimizing impacts, communicating, and negotiating. In respecting Weld County's agriculture tradition, he indicated there will be no surface impacts, the pipeline will be buried below plow depth, agricultural uses can continue post construction, and efforts will be made to minimize impacts to crops. Recognizing Weld County's diversity, he stated the project is compatible with agriculture, the energy industry, low-density/Estate Residential and open space. Concerning economic growth, he asserted the easement acquisition and construction will contribute money to the local economy, there will be no negative impact on growth and government services and the alignment has been coordinated with local governments and property owners. He displayed images of the construction completed in Johnstown and Windsor and stated, although they are only required to meet the criteria of the 2009 Comprehensive Plan, they meet the criteria of the current Comprehensive Plan as well. In response to Commissioner Saine, when asked what points the District Court agreed with the Larimer County Commissioners on, Mr. Koleber deferred to Joanne Herlihy, City of Thornton, Senior Assistant City Attorney. Ms. Herlihy stated there were three (3) criteria in which the District Court sided with the Larimer County Commissioners. She was unable to recall two (2) of the criteria but relayed the third was a lack of consistency with Larimer County's Master Plan. She 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 4 relayed, due to the City of Thornton proposing a corridor approach in Larimer County, opposed to a specific pipeline route, the Larimer County Commissioners were unable to assess the impacts of the pipeline. She confirmed for Commissioner Saine there is no legal definition of "last resort", referring to Mr. Koleber's previous statement, "the City of Thornton only uses eminent domain as a last resort." Mr. Koleber outlined the Approval Standards and Conditions in Section 23-2-480.A.1-8 of the Weld County Code, which apply to USR permits for pipelines and explained how the application satisfies each criteria. = In response to Commissioner James, Mr. Koleber asserted the impacts to use the right-of-way are much higher than the impacts of using private land, specifically citing the traffic impact. He defined "feasible" as weighing what is more/less impactful and weighing if something makes more/less sense, acknowledging, anything is possible, but that does not make it a sound decision, in his opinion. Regarding compliance with the new/revised Comprehensive Plan, he stated he didn't believe the pipeline had an impact on Opportunity Zones and Ms. Aungst confirmed Planning Staff did not verify the pipeline would not be in an Opportunity Zone, but relayed she would review that. Responding to Commissioner Saine, Mr. Koleber explained in more detail the impacts of using the public right-of-way, stating the traveling public would be impacted due to road closures and maintenance activities, and assured alternative accesses would be provided to private landowners whose land is impacted by the pipeline construction. In response to Commissioner James, Mr. Koleber stated, once constructed, agricultural uses, parking, trail setbacks and landscaping can be placed on the easement, and things such as buildings and permanent structures cannot be placed on the easement. Commissioner James cited Section 23-2-400.B (The facility will not have an undue adverse effect on existing and future development of the surrounding area as set forth in applicable Master Plans) and stated certain property owners would not be able to use the land for future development, to which Mr. Koleber agreed and replied that is taken into consideration when compensating the property owners for easements. He indicated the percentage of easements obtained voluntarily, versus through eminent domain, was 29 percent (°/0), on a property owner basis. Mr. Koleber summarized his presentation by reiterating the application is consistent the Weld County Comprehensive Plan, meets the Approval Standards, will mitigate or avoid impacts, and addresses requests made by the Board, in the 2019 and 2020 hearings. In response to Chair Moreno, Mr. Koleber confirmed six (6) miles of pipeline, thus far, have been constructed within Weld County municipal boundaries, responding to Commissioner James, he provided a breakdown of the types of agreements the City of Thornton has with surrounding municipalities and Ms. Aungst confirmed, having said agreements in place is not a Condition of Approval. In response to Commissioner Saine, Mr. Koleber confirmed there is no pipeline yet constructed in unincorporated Weld County and responding to Commissioner Buck's question regarding Phase 3 of the project (a parallel pipe), he relayed that is a plan which was established in the 1980s, decreed by the court, and there are no plans for a Phase 3 anytime soon. He stated if/when they choose to implement that part of the plan they will look at the regulations in place at that time, and stated it is an option, but not mandatory. He explained to Commissioner Freeman how the water need, through 2065, was determined and clarified there is not a moratorium on growth in the City of Thornton, but the water supply is not guaranteed, at this point, for new developments. Chair Moreno recessed the hearing for a short break. 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 5 Chair Moreno reconvened the hearing and explained the expectations of the public comment period. El Rebecca Hicks represented her daughter Seychelle Hicks, owner of a 50 -acre Legacy Farm along the pipeline route. Ms. Hicks read a prepared statement (Exhibit AB) regarding her daughter's interactions with the City of Thornton and included supporting exhibits. Commissioner James cited Section 23-2-490.F (All reasonable alternatives to the proposal have been adequately assessed, and the proposed action is consistent with the best interests of the people of the County and represents a balanced use of resources in the affected area), Section 23-2-490.A (All reasonable efforts have been made to avoid irrigated cropland or to minimize the negative impacts on agricultural Uses and lands) and Section 23-2-490.B (The Pipeline - Domestic Water will not have an undue adverse effect on existing and future Development of the surrounding area as set forth in applicable Master Plans), and asked Ms. Hicks if she felt the City of Thornton had met the above listed criteria, with regard to her daughter's property. She explained the City of Thornton chose to run the pipeline through her daughter's property, opposed to an adjacent property owned by RF Holdings, LLC, because it would be too costly for RF Holdings, LLC, to move their mulch piles. She expressed they should use an existing oil and gas easement that runs parallel to her daughter's property and asserted the City of Thornton did not explore using the easement. She indicated the pipeline would have a negative impact on agricultural operations by interfering with flow irrigation on the land and the pipeline would have an undo adverse effect on the future development of the site, as the land is designated for potential future residential use in Johnstown's Growth Management Area (GMA). In response to Commissioner Saine, Ms. Hicks relayed there are other easements in the area in which the pipeline could go and expressed concern for the permanent easement width of 50 feet. Ei Mr. Choate cited Section 23-2-490.F, and clarified it is within the Board's purview to consider the application as it relates to the location of the pipeline, but any financial agreements or whether a property is being/has been condemned, is between the City of Thornton and the individual landowners, and is out of the purview of the Board's consideration. He indicated the financial aspect associated with the pipeline is the court's decision. En Kathleen Weinmeister, Zeiler Farms, Inc., provided a map of Zeiler Farms (Exhibit AC), which showed the proposed route of the pipeline through the Zeiler Farms property. She stated Zeiler Farms, Inc., requested the pipeline go straight along County Road (CR) 13 rather than zig zag through the property. In response to Commissioner James regarding Sections 22-2-490.F, 23-2-490.A and 23-2-490.B, Ms. Weinmeister stated they have been in ongoing negotiations with the City of Thornton regarding the location of the pipeline, but she had not seen any effort by the City of Thornton to consider the route preference of Zeiler Farms, Inc. She indicated the pipeline probably would not have a negative impact on agriculture on their land, once constructed and stated, although the land is currently being farmed by a tenant farmer, there is an arrangement in which the Town of Windsor will eventually take over the land and the pipeline will adversely affect a marketable corner of the property, in the future. Randy Fabrizius, Weld County resident, stated his mother owns land along the proposed route and relayed, in 1985, he heard rumors of two pipelines, one to carry water back to Thornton and one to carry treated sewage water back. He went on to say the City of Thornton has a "take 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 6 it or leave it" attitude and they want to run the pipeline through the center of the farm, where the best future building sites are. In responding to Commissioner James, Mr. Fabrizius stated his mother's farm is located across the road from Dyecrest Dairy, near CR 13, and responding to Commissioner James' questions regarding Sections 22-2-490.F, 23-2-490.A and 23-2-490.B, Mr. Fabrizius stated the pipeline is not proposed to be located where the family's reasonable preference is, the pipeline will not have negative impact on agricultural, once completed, but it will have an undo adverse effect on the future development of the property. CI John Howard, Weld County landowner, stated he hopes Weld County is properly compensated for the pipeline crossings and indicated he has given up immediate possession of his land but is in the condemnation process. He stated the City of Thornton agreed to pay for an appraisal on his land and did not, and in response to Commissioner James regarding Sections 22-2-490.F, 23-2-490.A and 23-2-490.B, Mr. Howard indicated the City of Thornton did ask about their preference for the location of the pipeline, there would not be a negative impact on agriculture, but it would negatively impact the future development and confirmed he is not in a GMA. Gary Howard, Weld County landowner and president of the Big Dry Creek Ditch and Reservoir Company, stated he only communicated with the City of Thornton twice and they were not willing negotiate the compensation for the easement, but they did change the location of the pipeline to the Howard's preferred location. He relayed the City of Thornton told him they would "cut" the ditch, which is contrary to a statement made by Mr. Koleber, in his presentation, that they would bore under the ditch. Mr. Howard questioned whether they could plant trees on the easement and in response to Commissioner James, confirmed he was an owner of the same property as John Howard. Kathleen Benedict, Weld County resident, asked the Board to deny the application until the City of Thornton offers "just market value" to Weld County landowners and indicated the offer she was provided was not accompanied by an appraisal. She stated her land is in the Timnath GMA, listed as `Estate Residential' and indicated the pipeline would negatively impact agricultural operations by cutting off access to the gate they use to get hay to the property. She relayed she has spent a significant amount of money dealing with the City of Thornton and they ultimately instituted eminent domain. Responding to Commissioner James regarding Sections 22-2-490.F, 23-2-490.A and 23-2-490.B, she confirmed the location of the pipeline hinders agricultural operations, confirmed she is in the Timnath GMA and stated the future development of her property would be greatly impacted by the proposed location of the pipeline. ki Steve Teets, Greeley resident, questioned why the City of Thornton was not obtaining water from the Platte River or the Poudre River further south than the proposed location and suggested the Board ask for the comments gathered during community outreach, relating to the location of the pipeline. CI Chair Moreno recessed the hearing for a lunch break. CI Chair Moreno reconvened the hearing. 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 7 Mr. Koleber confirmed the Sections which Commissioner James referred to during public comment and Commissioner James agreed. Mr. Koleber asserted the standards of "landowner satisfaction", "reasonable efforts" and "good faith negotiations" are subjective and indicated there is no definition for those phrases in the Weld County Code. He outlined the six (6) areas the Board asked them to look at to see if placing the pipeline in the right-of-way was feasible, stated two (2) of the areas were on a County Line Road shared with Larimer County, therefore, not feasible and noted they came to voluntary agreements on three (3) out of the four (4) remaining easements. He displayed a supplemental PowerPoint presentation (Exhibit AE) and went on address comments made during the public comment period, starting with the parcel owned by Nanda Devi, LLC (Seychelle Hicks). He explained the proposed configuration across her property is due to the mulch piles on the RF Holdings, LLC, property, to the west, indicating the mulch piles would never be able to be placed on the easement. He noted the agreement with Nanda Devi, LLC, is settled and paid and they agreed the land grades and irrigation ditches will be put back when construction is complete and temporary facilities will be installed to pump or re-route irrigation water during construction, if necessary. In response to Commissioner James, Mr. Koleber acknowledged the land is within the GMA of the Town of Johnstown, is slated as Residential and confirmed the City of Thornton has not discussed the situation with the Town of Johnstown. Responding to Commissioner Saine, Mr. Koleber clarified the Standards of the Weld County Code are not subjective, but phrases such as the ones he stated previously are. Referring to a statement made by Ms. Hicks during public comment, he defined that a non-exclusive easement means the landowner can assign another easement over the top of the pipeline easement, as long as it doesn't impact the pipeline easement, and clarified the City of Thornton does not have the ability to grant additional easements. He explained the assignability piece of the agreement keeps the easement intact if the City of Thornton were to ever change to a different entity name and relayed the easement is limited to use of what is specified in the application. Mr. Koleber addressed an email written to Ms. Hicks (Seychelle Hicks), which Ms. Hicks (Rebecca Hicks) claimed was blackmail, confirmed the email was sent from a City of Thornton attorney, clarified the language in the email was not agreed to and does not show up in any documents, and reiterated the easement acquisition on that property is settled. Moving on, Mr. Koleber focused on the Zeiler Farms, Inc., property and stated it is already annexed into the Town of Windsor, therefore, not subject to the permit application. In response to Commissioner James, Ms. Aungst confirmed the property had been annexed into the Town of Windsor. Regarding the property mentioned by Mr. Fabrizius, owned by the Eugene F. Schneider Family Trust, Mr. Koleber explained the pipeline route follows the property line on the west side of the property and mentioned the City of Thornton voluntarily acquired easements to the north and south, on the western property line. He iterated there is a disagreement about the value and impact of this particular easement and stated the issue is in court right now to evaluate the appropriate compensation. Regarding the property owned by John and Gary Howard, Mr. Koleber stated the City of Thornton is working to settle those easement acquisitions outright and valuation hearings are scheduled. With regard to crossing the Big Dry Creek Ditch and Reservoir Company's ditch, he noted the City of Thornton is open to whatever the ditch company requires. He indicated the City of Thornton has been working on a settlement with the Benedicts, but there was a disagreement as to whether the easement creates an unusable parcel and that issue is for the court to decide. He noted, if the court awards the Benedicts the cost of the appraisal, it will be paid at that time. 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 8 Jumping back to a comment made by Mr. Howard (Gary), Mr. Koleber stated deep rooted trees will not be allowed on the easement, but things such as shrubs, grass, curb/gutter and fences are allowed. Referring to a comment made by Ms. Benedict, he clarified there was no Geotechnical drilling done on the property. In response to Commissioner James, Ms. Aungst stated the pipeline does intersect with Opportunity Zones and Commissioner James expressed the Zones were established to assist with future development by providing an opportunity for landowners to more conveniently change the Zoning and cited Section 23-2-490.B, with regard to the impact to future development. In response to Chair Moreno, Mr. Koleber requested the USR maps be accepted in segments, opposed to all maps being required prior to any construction. Ei Commissioner James cited Sections 23-2-490 and 22-4-10.B (Weld County Opportunity Zones), asserting the application is not consistent with the Comprehensive Plan. He went on to state the application does not meet Section 23-2-490.A, as the pipeline would negatively impact agricultural uses, 23-2-490.B, as it prohibits future development as outlined in surrounding municipal Master Plans. Furthermore, the application is not compatible with Section 22-2-40.B(UD.Goal 2) (Strive to establish an Intergovernmental Agreement concerning urban growth areas with each municipality in the County), as sections of the pipeline are proposed in GMAs and 23-2-490.F, as the pipeline is not in best interest of the people of Weld County, as expressed by numerous SPOs who were opposed to the pipeline placement due to the impact on agricultural operations and/or plans for future development of their properties. El Commissioner James moved to deny the request of the City of Thornton for a Site Specific Development Plan and Use by Special Review Permit, USR18-0130, for a greater than 16 -inch raw domestic water pipeline (permanent 42 -inch pipeline and associated appurtenances, including, but not limited to: 1 -million gallon water tank, two pump stations, buried valve assemblies, access manways, fiber optic cable and temporary construction easements) in the E (Estate) Zone District, the 1-3 (Heavy Industrial) Zone District, and the A (Agricultural) Zone District, based on the findings stated above, and the motion was seconded by Commissioner Buck. Commissioner Saine cited Sections 23-2-490.B and 23-2-490.F and asserted the project would violate both of these criteria and Commissioner Freeman stated, although a difficult decision, he agrees with Commissioner James that the application does not meet compliance with Sections 23-2-490.A, 23-2-490.B or 23-2-490.F. Chair Moreno thanked the applicants and the constituents for their input, acknowledged the City of Thornton's right to move their water, but relayed it is the responsibility of the Board to follow the Code, and agreed with findings made the Planning Commission and Commissioner James. Commissioner James recognized the rights of the City of Thornton to access their water, and expressed his decision was not impacted by negotiations with landowners or the use of eminent domain, rather, it was based strictly on criteria in the Weld County Code. The motion carried unanimously and there being no further discussion, the hearing was completed at 1:52 p.m. 2021-1163 PL2657 HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130) PAGE 9 This Certification was approved on the 10th day of May, 2021. 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