HomeMy WebLinkAbout20202645.tiffHEARING CERTIFICATION
DOCKET NO. 2019-48.C
RE: 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, AND FIBER OPTIC
CABLE AND TEMPORARY CONSTRUCTION EASEMENTS) IN THE E (ESTATE) ZONE
DISTRICT, THE A (AGRICULTURAL) ZONE DISTRICT, AND THE RUA (REGIONAL
URBANIZED AREA) ZONE DISTRICT - CITY OF THORNTON
A public hearing was conducted on August 26, 2020, at 10:00 a.m., with the following present:
Commissioner Mike Freeman, Chair
Commissioner Steve Moreno, Chair Pro -Tern
Commissioner Scott K. James
Commissioner Barbara Kirkmeyer
Commissioner Kevin D. Ross
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:
IR I hereby 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 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, and fiber optic cable and temporary
construction easements) in the E (Estate) Zone District, the A (Agricultural) Zone District, and the
RUA (Regional Urbanized Area) Zone District. On July 10, 2019, 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. Bob Choate, Assistant County Attorney, made this a matter of record.
ICI Diana Aungst, Department of Planning Services, stated the applicant requested a
continuance and referenced Exhibits F and I (continuance request letters).
Mark Koleber, applicant representative, outlined the progress made since the last hearing
and stated they have been working with property owners to obtain easements. He indicated they
need to acquire 143 easements from 170 property owners, across 35 miles in unincorporated
1JI PL(w4-rP), PW(vv vx1DK4) , (u-)
18 /202%)
2020-2645
PL2657
HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130)
PAGE 2
Weld County, and have, thus far, acquired 94 easements, totaling approximately 23 miles. He
explained the process for contacting property owners to discuss easement negotiations and
stated they use eminent domain only as a last resort. He requested a continuance, to
December 16, 2020, to allow the City of Thornton time to obtain additional easements, prior to
presenting the application to the Board.
Ei Chair Freeman opened the hearing to public input regarding the continuance, and in response
to a member of the public, clarified the continuance process.
• Abe Sauer, Weld County resident, questioned whether the applicant is intending to continue
the eminent domain proceedings, as well as the Board hearing. In response to
Commissioner Kirkmeyer, he stated his support or opposition to a continuance is dependent on
whether the applicant intends to continue the pending eminent domain court cases as well,
clarifying he is opposed to a continuance if the intent is to allow the legal cases to be finalized
prior to the Board hearing.
e Stewart Olive, March and Olive, LLC, represented the Eugene F. Snyder Trust and
Margaret Snyder Trust. He stated the court hearing granting the immediate possession of the
Snyder Trust property took place on August 14, 2020, indicated the City of Thornton's closing
argument in the case is due on August 28, 2020, and his closing argument is due September 11,
2020. He stated his opposition to the continuance and asserted, if it is granted the court case will
proceed, resulting in a 'fait accompli, meaning the matter will already be decided and they will
have no option but to accept it. He explained the Snyders are not opposed to the pipeline, rather,
the proposed location of the pipeline on their property and in response to Commissioner Ross,
Mr. Olive repeated who he represented. In response to Commissioner Kirkmeyer, he confirmed
the Snyder's objection was to the location of the pipeline on their property and reiterated the court
case is for eminent domain and immediate possession.
CI Rebecca Hicks represented her daughter who owns a farm in Johnstown, and stated the
court case for immediate possession of her daughter's property is set for September 16, 2020.
She noted the costly legal fees associated with defending their property and stated, the Planning
Commissioners, at their July 21, 2020 hearing, made it clear there are alternative routes in place,
such as public utility easements in the County's right-of-way, and she questioned why private
property is being condemned to accommodate the pipeline. She referenced the Planning
Commission's (PC) vote of 7-0 in opposition of the application and responding to Chair Freeman,
stated she opposed the continuance.
e Tom Binder represented Binder Family Farms, and stated the City of Thornton served him
with condemnation papers, while they were in negotiations with each other. He questioned why
the applicant served eminent domain papers if they were requesting a continuance.
• Don Garner, Weld County resident, asserted the City of Thornton wants to condemn his
property so they can report to the Board they have more easements obtained. He questioned how
the court can condemn a property without the Board's approval of the project and stated he is
opposed to a continuance.
2020-2645
PL2657
HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130)
PAGE 3
e Janet Ross, Weld County resident, stated she is opposed to a continuance and asserted she
received notice of condemnation on July 14, 2020. She relayed the City of Thornton presented
her with and unsigned Return Receipt, claiming that was proof of delivery of previous notification
and explained the applicant has determined September 11, 2020, will be the deadline to conclude
further negotiations.
e Garrett Varra, Varra Companies, stated he supported the continuance and hoped to work
with the City of Thornton and Weld County to put the pipeline in the County right-of-way. He
explained Varra Companies could lose millions of dollars in reserve, in an unpermitted farm field
that has sand and gravel reserves in it. He relayed he has been working with the City of Thornton
for two (2) years on a solution, affirmed his land is not under condemnation at this point, but
expects that could happen at any time.
e Dave Mallory, Weld County resident, indicated the location of his property and stated he is
opposed to the continuance. He explained there is an existing three (3) inch gas line, in a
ten (10) foot easement, along County Road (CR) 17, which the City of Thornton could use to
co -locate the pipeline. He relayed they, instead, want to place the pipeline 80 feet into his field,
and when he questioned the location, he was told it was just easier to put it there. He stated the
City of Thornton cannot be trusted to do what they say they are doing.
e Steve McLain, Weld County resident, expressed his opposition to the continuance, stating
the City of Thornton is asking for more time so they can condemn more properties. He explained
he was provided with an offer, a final offer, and then condemnation papers and relayed there had
been no 'good faith' negotiations. There being no further comments, Chair Freeman closed public
testimony.
e Mr. Koleber reiterated they have been working with property owners by moving alignments
and adjusting the location of the pipeline, when necessary, and provided examples of requests
they were unable to accommodate. Referencing Ms. Ross' testimony, he explained they were not
able to make a connection with her in the early stages of the project, so they filed for eminent
domain to make sure the project can be completed by 2025. He stated most of the properties for
which they filed eminent domain were due to the amount of money offered, and speculated
property owners expected the same amount for the water pipeline easement as they had received
for easements from oil and gas and other for-profit companies. He indicated those companies do
not have condemnation power, forcing them to pay more for easements and relayed the City of
Thornton was trying to be a good steward of their rate payors' money. He expressed most of the
easements were obtained through negotiations, but the ones that have gone through eminent
domain have stipulated to immediate possession, with the value still undetermined.
El In response to Commissioner Moreno, Mr. Koleber confirmed the upcoming court cases will
proceed, regardless of whether a continuance of the USR hearing is granted. Responding to
Commissioner Kirkmeyer, Mr. Koleber stated the court hearing in Larimer County is scheduled
for September 9, 2020, he is not sure when the court will rule on the case, and the City of Thornton
will file an appeal if the case is denied. He explained the City of Thornton's constitutional right to
build the pipeline and described how they would convey water out of Larimer County, and into
Weld County, if the case is denied in Larimer County. In response to Commissioner Ross, he
2020-2645
PL2657
HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130)
PAGE 4
stated he did not know what portion of the 94 easements they had obtained were through
negotiations, versus condemnation, and elaborated on his statement about for-profit companies
being able to pay more for easements than public utility companies, asserting the City of Thornton
is paying fair market value for the easements. Responding to Commissioner Ross, Mr. Choate
explained the use of County right-of-way for public utilities has previously been allowed, in certain
circumstances, but noted the Department of Public Works (PW) prefers public utilities not locate
within the right-of-way, citing the possibility that they may have to be moved to accommodate
future road projects. Commissioner Kirkmeyer clarified there is a policy about not having oil/fuel
lines in the County right-of-way, due to safety, indicated utility lines can statutorily be in the
right-of-way, but asserted the proposed water line is more of a transmission line than a utility line.
There was discussion among the Board about previous direction provided to the applicant, during
the 2019 hearing and Mr. Choate explained, if the alignment of the pipeline were to change from
what is currently being proposed, notice would need to be sent to the property owners impacted
by the change.
e Commissioner James expressed his frustration with eminent domain and stated he would like
to empower staff to have conversations about how to adequately locate the pipeline within the
right-of-way, while ensuring taxpayers are properly compensated, Commissioner Kirkmeyer
agreed and provided examples of 'good faith' negotiations, which took place to construct CR 49.
Commissioner Ross referenced the September 11, 2020, negotiation deadline, stating the City of
Thornton has owned the water rights for decades, giving them ample opportunity to purchase land
and right-of-way for the pipeline, and indicated he did not believe every option was being
exhausted by the applicant, to work with landowners. There was additional discussion about what
was relayed by the Board and what was understood by the applicant, during the 2019 hearing.
Mr. Koleber asked the Board for direction on how to handle situations where property owners
have stipulated to immediate possession, but have not yet been compensated, and
Commissioner Kirkmeyer stated the Board cannot provide direction, at the risk of prejudicing
themselves with regard to the pending hearing process. Commissioner Kirkmeyer suggested
continuing the case for three (3) weeks to allow the applicant time to discuss the possibility of
using County right-of-way, with PW staff, and Commissioners Freeman and Ross expressed
concern with that short of a timeframe, citing the extensive scope of work that will need to be done
to determine feasibility. Commissioner Kirkmeyer clarified, the hearing in three (3) weeks would
not be to consider the application, rather to hear whether it is feasible to use the right-of-way, and
at that point the hearing could be continued until a date certain to hear the application. Mr. Choate
stated it is within the Board's discretion to hear or continue the case in three (3) weeks, based on
the feedback they receive from PW, and in response to Chair Freeman, Mr. Koleber estimated
25 percent (25%) of the pipeline might be able to locate within existing County right-of-way. After
discussion among the Board, they agreed to continue the hearing to September 16, 2020, at that
time determine an appropriate timeframe for a continuance to hear the application, and
Mr. Choate confirmed the County would send notice to surrounding property owners (SPOs), with
the new hearing date.
IP Commissioner Kirkmeyer moved to continue 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, and fiber optic cable and temporary construction easements) in
2020-2645
PL2657
HEARING CERTIFICATION - CITY OF THORNTON (USR18-0130)
PAGE 5
the E (Estate) Zone District, the A (Agricultural) Zone District, and the RUA (Regional Urbanized
Area) Zone District, to September 16, 2020, at 10:00 a.m., 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. The motion was seconded by Commissioner James, and
it carried unanimously. There being no further discussion, the hearing was completed at
11:09 a.m.
This Certification was approved on the 31st day of August, 2020.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: ditiL uC.ita•e1
Weld County Clerk to the Board
BY: i Z
eputy Clerk to the Board
Mike Freeman, Chair
Steve Moreno, Pro-Tem
Stitt K. James
Kevin D. Ross
2020-2645
PL2657
C
ATTENDANCE LIST
�- LQ- z02v
NAME - PLEASE PRINT LEGIBLY
ADDRESS (CITY, STATE ZIP)
EMAIL
COUNTY OF
RESIDENCE
SPEAKING
(Y/N)?
�s ,/
Rekcca_ j44
3.1444 0 . vei.v& SJ' 1d
E- er ee,T, ('o J0(7135'
s'ecjk/%a Ar,7,ea/P7
J 44 dd '
)7
e6 77 Z?2c1 2/ /3,,;‘,,,,z, -)a.,
/�
p
J y41, nu/ or,/'
��-
all ex s- .2e ego
�/ -
}d
osyW
pc- /YY 1)0
s��s 30c--
&/J
AN /� 1 �
l<P4CPC co (6oS30
\ u)
► e•ak,X\0Wo lie
t1-4-59 to 0.S GI'1-. (kr
‘,Cre9
Ike-yin,4
9
4/ij 46:67V/7.o f
qo LiP/c), Ce-der- ib„,
e,fr4,-.,-,4-eriloz-A/.:56,L,,fgy,
.-(-
Ke-v ) v. W cp O S
1i 4 ,
I<ev1 r), (ND ( 61 it
i �^,�
NI
ii\ejk fil4Ak.+-
11 61 it �r
JJ rI
ecacs
✓ 1d
I
Ai
1�rrtyrohn
��
/1 r�
J , PomyA K.C _ ) `
"9-d9Pg-IK
//�� �/
l Yt 4± Vc�r-r-,
$(2c, ,y - e St *'ezcs')`C �•,
c.r2 8 e.�i�
( :rr� .� i4e-r,.,4p-ion , •-e- • (--dJ —
I
(NIi! I
/-f4 t_ •
Neizik_6` �J c V ` . e•7
F-4-. /---,.....p-CO-7k lfj
.
J '�F 6-S 4) a.c.\ , eGZ44
(A9
tik-(6z 6C
lytr z' Lc
L
'f-/e,3z e )3 6• ('//,`,�s ges-,2y
KM, ®reL.I--e y
iAJ2A�
r
pf
1 0 /
>�t% 7 �� TJ' t
go,
7"
✓� y
~
�(JCJx
;7
Q r fir-
-6
tt
f4qtAdzivpr
W
')e..,,ati ,....de.R
9271 ,crr41- fi,11;►cc ,c
IA, e/eii
I -,•,., 8 ;',,, Je-A
1.4d CA' 1{G, '`/. er-&o
+tie/e/
Y.
?t2-4(')/er/ie:(7));61ariW2
/ .gyp /
/a n�;7 17 1.0 Anti- CO
/ d
�i9
1
-���\-fv-t� g T y\kk\wketikr
✓
r`1c-f Saca+iaw ►� \.,a4e �
�.�•\\� '1(�C`msh.c�
1.-•0.rN;1ARr
°I
1
s ,err 19e
its/1- L..</e/ P j= 7- S4v/i, r.'•<� &_ 4,e 45 c®�
1,i 1 P
' 9:1 .,,
tom-
J
L7/5- �ci,,t, roj 56 s-Uc 5kyLct . COe--�
Uc 1
iyts-
ATTENDANCE LIST
2
NAME - PLEASE PRINT LEGIBLY
ADDRESS (CITY, STATE ZIP)
EMAIL
COUNTY OF
RESIDENCE
SPEAKING
(Y/N)?
yr 1 14 u� iP
.SOt
.640 1 C . .SO If/VSTD wr/,
d Co o'cs3ct
G ►'tc ji s .S'Ky m . t,rr-
c '
�lV L -D
IN/
DOW /197,friVIR
/.i1CX 1-3 6-e X��°ll ,L s
06- (iN 1-A943MZ ,C2a-vi.
I,/l��/c
K
1",1 cz l-4 V 11 e r 5
i git,i c<2,47.(1,1-- / 9 fi7C-0/60,
Pt594 rd a y -e ft/ 1{ g fr� 0
hero. --
Y
f eJi w
e7G' < y It�(ilPi 14 0, YIbiFMr1J `�
t YU r'(!� �i YC l
Ad
V
\
CrA_ u G O-- -v,
-2-7≤ t wee �� Lo'r,.,,6-
®,_6'6 Y
t/t.e foe
(-.
Hello