HomeMy WebLinkAbout20201976.tiffSUMMARY OF THE WELD COUNTY PLANNING COMMISSION MEETING
Tuesday, June 16, 2020
A regular meeting of the Weld County Planning Commission was held in the Weld County Administration
Building, Hearing Room, 1150 O Street, Greeley, Colorado. This meeting was called to order by Chair,
Michael Wailes, at 9:07 a.m.
Roll Call.
Present: Bruce Johnson, Dwaine Barclay, Gene Stille, Lonnie Ford, Michael Wailes, Richard Beck, Skip
Holland, Tom Cope.
Absent/Excused: Elijah Hatch
Also Present: Angela Snyder, Department of Planning Services; Lauren Light, Department of Health;
Melissa King, Public Works; Bob Choate, County Attorney, and Kris Ranslem, Secretary.
Motion: Approve the June 2, 2020 Weld County Planning Commission minutes, Moved by Tom Cope,
Seconded by Gene Stille. Motion passed unanimously.
CASE NUMBER:
APPLICANT:
PLANNER:
REQUEST:
LEGAL DESCRIPTION:
LOCATION:
COZ20-0004
GERRARD INVESTMENTS, LLC, C/O ROCK & RAIL, LLC
ANGELA SNYDER
CHANGE OF ZONE FROM THE A (AGRICULTURAL) ZONE DISTRICT TO THE
1-3 (HEAVY INDUSTRIAL) ZONE DISTRICT
LOT B REC EXEMPT RE -2803, BEING PART SW4 & PART SE4 AND A TRACT
BEING PART OF THE SW4; ALL IN SECTION 18, T5N, R67W OF THE 6TH P.M.,
WELD COUNTY, COLORADO.
EAST OF AND ADJACENT TO CR 13, NORTH OF AND ADJACENT TO CR 56
Bob Choate, County Attorney, stated that Planning Commissioner Elijah Hatch has recused himself as he
realized that his company does business with the applicant.
Angela Snyder, Planning Services, presented Case COZ20-0004, reading the recommendation and
comments into the record. Ms. Snyder provided a brief history regarding the previous land use permits and
subsequent civil actions regarding the site.
Ms. Snyder reviewed the five (5) criteria that the Planning Commission needs to consider when reviewing
the proposed change of zone application. Additionally, she provided explanations on how the proposed
project is consistent with the Industrial Goals listed in Chapter 22 of the Comprehensive Plan.
Ms. Snyder noted that the applicant was encouraged to consider annexation to the Town of Johnson
through the pre -application process in accordance with the Intergovernmental Agreement. The Town of
Johnstown, in their notice of inquiry response dated March 2, 2020, indicated that the applicant was
approached by the municipality in pursuit of a potential annexation, however, the property owner was not
interested in annexation at this time. She added that it is the County's current position to encourage but
not force annexation so as not to preclude private property rights.
Ms. Snyder provided visual slides of the expected growth management area for the Town of Windsor and
the City of Greeley. Additionally, she pointed out the future land use plans for the Towns of Johnstown,
Milliken, Windsor and the City of Greeley.
Ms. Snyder stated that multiple letters from surrounding property owners were received expressing
concerns related to dust and noise pollution and the impact of the industrial development on residential life.
She added that there were some letters of support from a few property owners siting the need for industrial
locations to meet the demand of regional growth and further added that the worst noise pollution was
coming from Highway 34 and from through trains on the adjacent Union Pacific and Great Western rail
lines.
The current landscaping on site blends the industrial development in with surrounding properties and
presents a positive image of the area from the highway.
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The Department of Planning Services recommends approval of this application with the attached conditions
of approval.
Melissa King, Public Works, reported on the existing traffic, access to the site and drainage conditions for
the site. She added that, at the site planning stage, the existing Improvements and Road Maintenance
Agreement be reviewed for any needed updates and revisions.
Lauren Light, Environmental Health, reviewed the public water and sanitary sewer requirements. Ms. Light
provided the noise levels for the industrial zone district, the fugitive dust and emissions regulations that will
be reviewed in the Site Plan Review process.
The Chair called a recess at 9:46 a.m. and reconvened the hearing at 9:57 a.m.
Brian Connolly, Otten Johnson Robinson Neff and Ragonetti, P.C., 950 17th Street, Denver, Colorado,
stated that the request is to change the zoning from agricultural to heavy industrial. He stated the change
of zone application is unique in that the application has been filed by a railroad. Typically, you don't see
applications filed by railroads because they are generally regulated under federal law. The application is
also unique since they know what is on the site, who the user is and what the plans for the build -out of the
site are.
Mr. Connolly said that it is a 133 -acre rail -served site in close proximity to major highway infrastructure and
other rail infrastructure including the Union Pacific mainline. The property is currently developed with a
spur track, a transload yard and a concrete mixing facility. They would like to align the zoning on the site
with the site's actual use. He added that Weld County Code and Federal Law exempt railroads from local
regulation, which includes the rail spur and the transloading operations on the site. Federal Law also allows
a local government and a railroad to agree that certain aspects of the operations on the site could be made
subject to local regulation. Therefore, Rock and Rail seeks to place its concrete mixing facility as well as
the other elements of its build out of this site under local regulation so that Weld County would have
regulatory authority over those improvements.
Mr. Connolly stated that the railroad is regulated by ICCTA (Interstate Commercia Commission Termination
Act). The federal case moving through the District Court confirms that transloading is rail transportation
under ICCTA. Rock and Rail has been operating this site under the jurisdiction of the Surface
Transportation Board since 2018. He added that Rock and Rail is voluntarily agreeing to place its concrete
and future asphalt operations under the Weld County Code, while the rail operations would remain exempt
from local regulation.
David Hagerman, Rock and Rail Vice President, 501 South 9th Street, Canyon City, Colorado, stated that
Rock and Rail is a Class II common carrier railroad and has been serving Colorado since 1998. He added
that they interchange with BNSF and UPRR and they are regulated by the Surface Transportation Board
as well as the Federal Railroad Administration.
Mr. Hagerman said that this Highway 34 Terminal is a loop -track that is capable of holding 116 car unit train
and has a siting track for additional transloading activities. Currently the site transloads construction
aggregate for sales to local customers and providing transloading through their concrete mixing plant. They
will be adding sand and cement in the near future.
Mr. Hagerman said that this site allows for consolidation of activities which reduce the impacts on local
infrastructure and improves environmental performance. Each train removes 400 trucks from roadways
along with attendant traffic and environmental impacts. He added that nearly every building or infrastructure
project uses a combination of stone, concrete, and asphalt. He provided a list of projects supported by the
Highway 34 Terminal.
Tom Haren, AGPROfessionals, 3050 67th Avenue, Greeley, Colorado, provided growth maps for the area
including Johnstown, Windsor, Greeley and Weld County. He added that all the future growth plans outline
some sort of mixed -use between commercial, retail, industrial and some residential. Mr. Haren said that
the surrounding towns want a piece of the action and added that this area has been a hotbed of growth and
development for the past couple of decades.
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Mr. Haren stated that infrastructure drives growth and provided a visual slide of the nearby infrastructure.
He added that there are several rail lines, a major highway, a county arterial roadway and significant water,
power and gravity for sewer in the area. It has so much infrastructure that it qualifies as an urban
development node in the Weld County Code. Mr. Haren provided a visual slide on the existing surrounding
land uses for the commercial, industrial, and mixed uses in the area. He added that there are a lot of
different land uses on the map and it shows him that they can co -exist, and they are finding a way to be
compatible.
Mr. Connolly referred to the approval criteria and mentioned that the fifth criteria really doesn't apply in this
case. He added that the third and fourth criteria have been met in that there is adequate water and sewer
service as well as adequate street and road infrastructure available to the property.
With regard to criteria 1, Mr. Connolly said that the proposed rezoning is compatible with the Weld County
Comprehensive Plan in that industrial uses should be located along major infrastructure, railroad
infrastructure and where adequate services are available. He added that the industrial provisions of the
County's Comprehensive Plan indicate that industrial uses should meet state and federal regulations. He
said that the Surface Transportation Board regulates the railroad operations and CDPHE regulates air
quality and stormwater quality on this site and the County regulates noise. He said that this facility has no
violations of any of these permits. He added that the only complaint that the County has been forced to
respond to was an incident on the site due to a faulty shut-off valve which resulted in some fly ash emissions
leaving the property to the north. It was identified by a county staff member and Rock and Rail immediately
responded to it and shut down the facility and there was no violation issued on that particular incident.
Mr. Connolly said that the plan supports the individual landowner rights under Section 22-2-20 Policy 7.2
and 7.3 . He noted that a municipality's adopted comprehensive plan should be considered but should not
determine the appropriateness of such conversion.
Rock and Rail currently complies with the noise standards and is prepared to continue to comply with the
County's noise standards through the build -out of this site.
Mr. Connolly said that the County Code does require them to demonstrate that there will be compatibility
with all the uses permitted under the 1-3 Zone District and the surrounding residential properties. He said
that compatibility between uses is a function of a lot of factors that go beyond just the use of the property,
such as the property size, distance between residential and industrial land uses, the site layout and any
buffering and berming that is provided, architectural design and mitigation of odors, dust and noise.
Mr. Connolly provided some mitigation measures. He said that the concrete plant was designed with input
from neighboring property owners and was designed to look like an agrarian building. Additionally, there is
a truck underpass which goes under the rail loop and significant separation distances between residential
activities and the site itself. He said that it is 770 feet from nearest home to the rail loop, 750 feet from the
residential property line to the rail loop and 1440 feet between residential properties and the concrete plant.
He added that there has been berming, buffering and landscaping provided on site to mitigate views of the
facility from the adjacent residential area. Noise mitigation measures include both operational limits by
trying to limit the amount of time the plant is operating and also physical improvements including sound
walls and berms around the site. Dust mitigation is done through a dust mitigation plan which includes
running a watering truck on days when it is particularly dry and locating stockpiles in a manner that limits
dust transmission. The applicant is committed to continuing to mitigate any impacts to ensure compatibility.
In conclusion, Mr. Connolly said that they have unique application given the issues with Federal Law and
what the site looks like and is designed to be. He added that Weld County's Comprehensive Plan provides
strong support for the rezoning of this property and respectfully requests approval of this application.
Commissioner Holland referred to the diversification map and asked what it would look like outside of that
map. Mr. Connolly said that as you would go north of the site you would get into the more central part of
the Town of Windsor and have a mix of residential and some commercial uses. If you go east into Greeley,
there is commercial development and west you head into Loveland which is the McWhinney development
which has significant commercial, industrial and residential development. He added that as you go south
you head further towards Johnstown.
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Commissioner Holland asked the applicant to explain the federal lawsuit. Mr. Connolly provided an
explanation of the challenge to the USR approval and the suit filed up to the Colorado Court of Appeals.
Rock and Rail acquired the property and then filed a declaratory judgement action in federal court, and they
are seeking a declaration from the federal court that the entire site falls within the ICCTA and is subject to
regulation by the Surface Transportation Board.
Commissioner Cope asked if this application receives approval will the federal lawsuit disappear. Mr.
Connolly said that it does not necessarily disappear as some of the other claims involved in the federal
lawsuit is that the neighbors are seeking to reinstate the development standards that were tied to the original
USR. He clarified that there is a claim that those development standards should still apply to the site, even
though the USR has been terminated. Mr. Cope asked if the people that were fighting the USR may have
realized that some of the things that were put in place by the USR are beneficial. Mr. Connolly didn't want
to speculate what they were thinking.
Commissioner Beck asked what the neighbors wish to accomplish. Mr. Connolly said that they understand
that they would like the facility to go away completely. One of the factual arguments in the federal litigation
is whether the concrete mixing facility qualifies as railroad transportation. However, if federal court were to
say that concrete mixing does not fall within the operations of a railroad you would still have a rail spur
track, railyard and a transloading facility and they would still have the ability to conduct transportation and
transloading on that property. He added that the buffering and berming were requirements of the USR
approval and so given that those have gone away, if another rail operator came to use this site they could
build the railyard right up next to the Indianhead neighborhood without any type of setback and could have
much more impact.
Commissioner Wailes referred to Mr. Hagerman's presentation with one (1) train equivalent to 400 trucks
and added that he understands that this isn't probably an exact number but asked what the size of the truck
is to arrive at that number. He added that obviously the train brings material in and that removes the trucks
in bringing material in; however, there is still material going out which includes truck and asked if that is
included in the calculation. Mr. Connolly said that the 400 trucks does not include the trucks taking the
material out to a construction job. He said that the calculation is based on a 25 -ton truck and the train
brings aggregate down from a quarry in Wyoming.
Commissioner Stille asked how many cars are on a train and how many times it comes during the week.
Mr. Connolly said that there are 116 cars per train and it comes two to three times per week. Mr. Stille said
that there is a significant number of trucks being removed from the highways.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
Kim Meyer, Town of Johnstown Planning and Development Director, 450 South Parish Avenue, stated that
they support private property rights of all the property owners. In terms of the change of zone discussion,
they are talking about a change of zone overall and not just a specific use. She said that the Town of
Johnstown is concerned with the range of heavy industrial uses as this is within their growth management
area. She added that the Johnstown Comprehensive Plan does show this area as conservation ag and
large lot residential with some employment in commercial nearby along Highway 34. They feel the 1-3 Zone
is too intense and has too wide a range of uses for this property.
Commissioner Cope asked if Johnstown now has 1-3 zone areas. Ms. Meyer said that they don't have the
1-3 zone that is comparable to Weld County's 1-3; however, they do have an industrial zone and also mixed
uses. Mr. Cope asked what the cities are using for criteria to allow industrial zone in that area. Ms. Meyer
said that the way Johnstown has developed a lot of PUDMU which is their mixed -use zone which
acknowledges that there are a balance of land uses that light industrial and commercial and residential can
co -exist. Mr. Cope asked if they are generally along transportation corridors and railroads. Ms. Meyer said
that Johnstown didn't initially start that way, but they look at transportation and impacts and what is existing
around it.
Commissioner Ford asked how they would like to see this zoned if the railroad is not going away. Ms.
Meyer said that their Comp Plan says it would be more appropriate for stepping down in intensity from the
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Highway 34 corridor with employment and commercial and step down to residential. Mr. Ford asked how
she would look at it for residential with the railroad on site. Ms. Meyer said that the existing use is industrial.
She said that it isn't that a railroad can't co -exist and added that she doesn't believe there is a base
incompatibility and is more of the uses that come with that.
Commissioner Beck asked if they don't have enough knowledge of our zoning system to suggest a way
that this would be zoned. Ms. Meyer said that from a planning standpoint she looked at the application for
an 1-3 Zone District and added that the USR process gives you the ability to mitigate some of those impacts
of individual uses and more control of what can happen there. She said that she doesn't know the Weld
County Code well enough to provide a suggestion for a zone district.
Commissioner Holland wished to clarify if the applicants applied for annexation into Johnstown. Ms. Meyer
said that they have not applied for annexation to Johnstown. She said that they chatted with the applicant
about what are some of the other possibilities that they could look at and added that Johnstown would like
to have some local control with what happens in this area. She asked them if they would be interested in
annexing into Johnstown, however, the applicant did not wish to entertain annexation.
Matt Lecerf, Johnstown Town Manager, 450 South Parish Avenue, referred to a letter provided by Mr. Gary
Gerrard dated May 14, 2020 in the application packet. He read a letter from the Town of Johnstown and
provided a hard copy to enter into the record. The letter provided an explanation of the conversations and
meetings with Mr. Gerrard and the Town Council. The letter stated that after conferral and consideration
with the Town Council, the Town of Johnstown declined to pursue annexation of property containing a
heavy industrial use.
Commissioner Ford clarified that if the applicant would try to pursue annexation to Johnstown, they wouldn't
be successful. Mr. Lecerf said that because of the current use of the property under the USR the Town is
not receptive to annexation. He clarified that if the use actually did not exist currently as it is, they would
be receptive to annexation.
The Chair called a recess for lunch 11:14 a.m. and reconvened at 12:15 p.m.
The Chair asked if there was anyone in the audience who wished to speak for or against this application.
Dave Kisker, 6681 Apache Road, stated that they represent 50 people in the group CLR34, and provided
a list of the people for the record.
Ellen Kisker, 6681 Apache Road, stated that 45 years ago Weld County did not approve of the lndianhead
development and added that the Colorado Court of Appeals ruled that the Weld County Commissioners
had been arbitrary and capricious in denying it. She said it is understandable that the Commissioners were
not happy with that ruling but saying now that it should never have been allowed as a justification for a
change of zone really can't be taken into account. Ms. Kisker reviewed the USR applied for in 2015 and
provided a timeline of the county approval, construction of the facility, and the Court of Appeals rulings. In
2018 Martin Marietta withdrew their USR application and sold the facility to Rock and Rail. She said that
today the applicants are applying for a change of zone, arguably to get around key elements of the county
code.
Commissioner Beck asked when the rail line went in. Dave Kisker, 6681 Apache Road, said that the train
loop on site was built in 2016 and 2017, however the Union Pacific railroad has been there for decades.
Mr. Beck asked if they ever sought an injunction against the applicant to cease building their facility until a
court made a decision. Mr. Kisker said that they did not seek an injunction but relied on their letter that they
would stop operating.
Mr. Kisker compared the criteria, enforcement, mitigation requirements and compatibility for Change of
Zoning versus a Use by Special Review (USR). He argued that in Chapter 22 it states the uses which
would be allowed by granting the change of zone will be compatible with the surrounding land use; however,
it doesn't say potential future land uses, which means it has to be compatible today. Mr. Kisker referred
to COZ20-0002 which was heard a few weeks back and stated that planning staff said that the existence
of a few industrial and commercial uses around the site that was attempting 1-2 rezoning was not a sufficient
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reason to ensure compatibility. He said that should apply in this case as well and added that the consistency
in those requirements seems to be lacking.
Mr. Kisker said that good planning practices typically use something like a compatibility matrix which is
looking at various areas uses and consider how compatible they are with each other. Some things can be
mitigated; however, heavy industrial is nearly never able to be mitigated when it is next to residential. So,
as a result they have hierarchical zoning where there are transitions from one zone district to another.
John Cummings, 26700 CR 13, Johnstown, Colorado, stated that he lives 1000 feet from the facility and
added that he is also a member of the Reorganized Farmer's Ditch Company. Mr. Cummings said that if
the facility is approved, the ditch system could be exposed to aerial emissions, but the greatest concern
are the contaminants that move off the site through stormwater ditches, underground drains and
groundwater. Mr. Cummings expressed concern regarding the detention pond for the facility and the
concern for contaminants. He requested that the detention pond has a release control valve that should
be used to hold stormwater until a chemical analysis can be done. Additionally, they would request to pipe
the stormwater directly to the Big Thompson River and work with the surrounding ditch companies,
landowners and farmers and have the applicant enter into an agreement with them on how they will maintain
the water quality before it leaves their facility.
Commissioner Stille said it is a concern in regard to the quality of water that goes into the ditch. He thought
that even though they didn't reach out to the ditch he would think the ditch would have reached out to them
to talk about analysis and mitigating it. He asked what kind of chemical analysis and filtering they would
like to see. Mr. Cummings said that they CSU could do the analysis and if there are harmful chemicals it
is the responsibility of Martin Marietta's Rock and Rail to mitigate those issues.
Commissioner Beck said that it would seem it could be the landowner's option to test the water on the north
and test the water on the south and then you could say with some degree of certainty what you think is
going on.
Commissioner Cope said that some of these issues could have been resolved if they would have allowed
Martin Marietta to continue using their USR but now with a change of zone these things are out of the
Planning Commission's control. He added that they are strictly looking at a change of zone and there are
no development standards. Bob Choate, County Attorney, said that there are design operation standards
in the Code that they will have to meet but there are no development standards that you would be putting
onto a change of zone.
Gary Oplinger, 27687 Hopi Trail, Johnstown, Colorado said that they live about 800 feet from the railroad
track. He said that the applicant has identified five (5) USRs in their application as being evidence of
compatibility. Each one of these uses have noise requirements with having the residential limit or
equivalent. Mr. Oplinger provided visual slides of the noise levels taken from his deck when the facility is
operating and when the trains are arriving and departing. He stated that berms do nothing to reduce noise
and added that all of the homes in Indianhead are above the berms. Mr. Oplinger said that this rezoning
must be denied as it is fundamentally unlawful, and it is incompatible.
Commissioner Stille said that some subdivisions and municipalities have had some kind of contract
mitigating railroad horns and asked if they have considered that. Mr. Oplinger said that it is a legal issue
and they don't want to pursue that.
Chris Friede 6943 CR 56, Johnstown, Colorado, stated that she is the owner of the Rockin' S Ranch that
was approved on June 17, 2015 for her wedding venue. She expressed concern regarding dust, noise and
the impact to her business. She said that what she promotes as a rural setting could now be an industrial
setting. She added that ceremonies are interrupted by train screeching and loud crashing noises and said
that there has been no attempt to mitigate the issues from the applicant.
Dave Kisker, 6681 Apache Road, addressed Commissioner Stille's question of a quiet zone from the
railroad and they raised that question with the working group, however, Martin Marietta said that they
couldn't do it. Mr. Kisker referred to Commissioner Cope's reference to the leaving the development
standards stay in place it would be okay, but not all of the development standards were ever met. He
referred to the previous USR development standard where the applicant was supposed to supply a sound
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mitigation and measurement scheme and they explicitly said in one of the working group meetings that they
have no intention of doing that.
Mr. Kisker showed some photos of dust and visual concerns from the facility. He argued that they could
have a concrete or asphalt plant under the I-1 Zone District through a USR and there would be development
standards so the idea that they couldn't have had a compromise that protected everyone it doesn't fly. He
said that there is no other heavy industrial in the area and all of the other uses are either light industrial or
are USRs on ag land.
Mr. Kisker referred to the few complaints received and added that after the Court of Appeals overturned the
approval on November 22, 2017 activity at the site essentially stopped so there was no reason to complain.
He said that they have not met the requirements of the Comprehensive Plan and the mitigation obligations
that was required under the USR. He added that approval of this case would be spot zoning.
The Chair called a recess at 1:54 pm and reconvened at 2:08 pm.
Pete Straub, 27793 Hopi Drive, stated that their home is located on the far west edge of the neighborhood
and their backyard views are now impacted by Martin Marietta. He expressed concern regarding dust,
noise, traffic and trains of Martin Marietta.
Rich Werner, President and CEO of Upstate Colorado Economic Development, 822 7th Street, Greeley,
Colorado, stated that the Highway 34 corridor area is projected to double in population by 2040. He referred
to Weld County Code Section 22-6-20 regarding the encouragement of expanding existing businesses and
the location of new industries that will provide employment opportunities to the County. He added that
industrial vacancy rates is 2.1 percent so it is very difficult to find locations of operation to help promote this
primary job sector. Mr. Werner recommended support for this project and asked them to look at how the
County has met the criteria.
Janet Ross, 6248 CR 56, Loveland, Colorado, requested denial of this case. She stated that in 2015 a
USR was proposed on the corner of Highway 34 and County Road 13 that was denied as an 1-2 use
incompatible with the neighborhood. She added that now Rock and Rail is proposing 1-3 uses and it is has
already been proven that 1-2 is incompatible. Ms. Ross said that she is directly south of the facility and
added that her farm is certified organic and is concerned with the dust mitigation that might contaminate
the land. She also expressed concern over the noise of the trains as it disrupts her sleep.
Trina Bogart, 6645 Apache Road, stated that this site is noisy, unsightly and an injustice to their
neighborhood. She said that the health of the community is also a concern and provided pictures over the
last few years documenting the dust issues. She said that particulates are the most harmful form of air
pollution due to the ability to penetrate deep into the lungs and the blood stream unfiltered. She added that
has had recent lung and breathing problems.
Melanie Schlotter, 27700 Hopi Trail, Johnstown, Colorado, requested denial of this application. She
expressed health concerns since the Martin Marietta Rock and Rail has commenced full-time operations.
She added that the noise is an issue, but the constant dust is an issue and covers her windows, landscape
and patio living area. Ms. Schlotter said that these rail lines were historically used for agricultural use and
added that the Great Western rail line was built to transport the sugar beets during harvest.
Vicki Wilson, 27790 Hopi Trail, agreed with the comments from CLR34. She expressed concern regarding
the noise and dust particulates and added that she has a grandson who has asthma and requires a
nebulizer treatment after visiting.
Joanne Fenton, 6720 Apache Road, expressed frustration with the process over the last couple of years.
She stated that the compliancy of this project has not existed. She believes she has a right to a fair, honest
and factual process. She agreed with all of the previous comments.
Mr. Connolly said that the focus of the public comment was on the criteria of considering compatibility of l-
3 uses with surrounding uses, noise, dust, views, and stormwater. He referred to Ms. Myers's comment to
what was here first. He said that the Union Pacific main line was constructed sometime in the late 1800's
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so that was here first and added that the loop was built in 2016. The County's Comprehensive Plan says
that industrial uses should be located along railroads.
With regard to stormwater, Mr. Connolly said that the facility has three (3) stormwater detention ponds on
site and they all have water quality treatment and detention structures. He added that there is a channel
that has been dug around the eastern edge of the site that takes water from the north and transports it
around the site and releases it to the south. Regarding the water quality, he has a copy of the CDPHE
Stormwater Permit and noted that it contains a monitoring plan so things that are monitored on the property
include things like hydrocarbon tanks, secondary containment, detention pond (monitored daily),
containment devices, general plant conditions, erosion, etc. Mr. Connolly stated that Rock and Rail would
be happy to work with neighboring landowners and ditch owners to ensure that any runoff that comes off
of this site is not contaminated.
Mr. Connolly referred to noise graphs provided by Mr. Oplinger. He said that they have some questions
about the accuracy of the data collection, given that it doesn't isolate noises, so they don't know whether
spikes are created by a bird flying by or noises that come from new homes in the neighborhood. The
baseline that they provided was taken during the middle of the night so that is when ambient noise is very
light. According to the data in the presentation, it shows that Rock and Rail operates well within the
industrial noise limits within the County and close to the residential noise limits. He pointed out that currently
no noise producing activity is regulated by the County Code. He clarified that what they are applying for is
to subject the future concrete operation and the rest of the build out of the site to the County's noise
standards.
With regard to the photos submitted with dust, he noted that there were no photos showing dust actually in
lndianhead or being transmitted over to lndianhead. Mr. Connolly said that they have onsite cameras and
they show that there is not a dust problem on the property. He noted that when the County has followed
up on complaints, they could only verify one (1) complaint due to a faulty shut-off valve. He added that
nothing has been logged with the State, which has the authority to enforce dust complaints.
Mr. Connolly referred to Ms. Friede's visual impacts. He pointed out that in one of the wedding photos on
the property it showed in the background an industrial facility that is the Canyon Backhouse facility that Ms.
Meyer referred to as a heavy manufacturing facility. He added that this area is already impacted by views
of industrial facilities. The view is dotted with agrarian structures, oil and gas operations and feedlots. Mr.
Connolly stated that as part of the original USR approval, Martin Marietta agreed to contribute $100,000 to
a landscaping fund to help neighbors who believes that their views were negatively impacted. He
understands that Ms. Friede took some of that money and had the opportunity to mitigate those views and
it is unclear if she has done that.
Mr. Connolly said that the market might be the best determinant of compatibility and referred to Exhibit 96
which shows the real estate report. He added that since this project was approved, real estate values have
in the immediate area surrounding the facility have increased by 41%. He said that if this facility is so
incompatible with surrounding areas, why are the property values of these homes increasing and also noted
that new homes have been built along the western boundary of Indianhead in clear view of the Rock and
Rail facility since the facility commenced operation.
Mr. Connolly referred to the case mentioned by Mr. Oplinger of Clark vs. City of Boulder which is a 1961
Colorado Supreme Court Case. He said that it is the Colorado case on spot zoning. He read the following
quote "In determining whether spot zoning is involved, the test is whether the change in question was made
with the purpose of furthering a comprehensive zoning plan or designed merely to relieve a particular
property from the restrictions of the zoning regulations". Mr. Connolly said that this does further the
County's Comprehensive Plan and is locating industrial uses along railroad. He added that it is not only
designed to relieve a property from the restrictions of zoning regulations, it is actually seeking to impose
zoning regulations on the property.
Mr. Connolly said that there was an inaccuracy raised on the Court of Appeals decision. He said that they
made the argument that the Court of Appeals found that this facility was incompatible with the surrounding
uses. He said that this is a misreading of the Court of Appeals decision and clarified that the reason the
USR was overturned was that in the hearing before the County Commissioners, Martin Marietta produced
a noise model that showed what noise might look like once this facility was built. At the same time, Martin
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Marietta agreed to comply with the residential noise standards. The Board of County Commissioners found
that because of the addition of the residential noise standards and noise model that it was compatible with
surrounding uses. However, the noise model showed the sound coming from the facility would actually be
higher than the residential noise standard. So, the Court of Appeals found that the County Commissioners
had erred in finding that that noise model itself showed compatibility, even though Martin Marietta had
agreed that it was going to subject itself to the residential noise standards. He clarified that the Court of
Appeals did not find that the facility is incompatible with surrounding uses, but it found that there was a
technical error in the Board's evaluation of that noise model.
Commissioner Ford said the biggest concern is the noise and added that he doesn't see how the train can
meet the noise standard. Mr. Connolly said that the train is exempt from noise standards under Federal
Law and the Weld County Code. The rail operations will remain and nothing about this application will
change the rail operations. The noise that comes from the concrete operations and the other operations
on the site, the noise standard in the County Code is a performance standard and if they don't meet the
standard the County can come out and take enforcement action. Mr. Connolly stated that they are agreeing
that they will meet the noise standard.
Commissioner Beck asked if the unloading of the railroad cars is exempt under Federal Law. Mr. Connolly
replied that is true and added that Rock and Rail has taken measures to reduce that noise from the banging
of the cars and squealing.
Commissioner Barclay asked how many heavy industrial zones are located next to residential areas
currently. Mr. Connolly said that he would have to defer to the County to answer that. Mr. Barclay said that
it seems to him that compatibility just automatically defaulting to a residential location adjacent to a heavy
industrial is almost impossible. Mr. Connolly said that the County does not have a definition of compatibility
in it's Code. The American Planning Association publishes a book called the Planners Dictionary and it
identifies three definitions of land use compatibility. One of the definitions is from the City of Loveland's
Code and said it reads "The characteristics of different uses or activities or design which allow them to be
located near or adjacent to each other in harmony. Some elements affecting compatibility, include height,
scale, mass and bulk of structures. Other characteristics include pedestrian or vehicular traffic, circulation,
access and parking impacts. Other important characteristics that affect compatibility are landscaping,
lighting, noise, odor and architecture. Compatibility does not mean the same as, rather compatibility refers
to the sensitivity of development proposals in maintaining the character of existing development". Mr.
Connolly said that measuring compatibility on a certain use to use level is really difficult. He added that
uses can be compatible based on the mitigation measures taken.
Commissioner Cope asked how close some things could be to the residences. Mr. Connolly said that the
asphalt batch plant would go to the south of the concrete plant and would be further away from the
residential area. He added that Rock and Rail plans to keep the buffer area between the Indianhead
subdivision.
Commissioner Cope asked if they considered installing a sound barrier similar to oil and gas sound barriers.
Mr. Connolly said that they are looking at other mitigation options within the property that would help screen
some of the sound from the batch plant area.
Commissioner Beck asked how much was spent from the $100,000 set aside for mitigation. Mr. Connolly
corrected his previous statement and said that the money that was given to Rockin' S Ranch did not come
out of the $100,000 fund. He said that $35,000 was given to Rockin' S Ranch. Mr. Connolly said that all
of the development standards in the USR approval have been fulfilled. There were ongoing obligations in
the form of requiring a community working group that was required to meet regularly and the landscaping
fund would be dished out after the plant commenced operation. Many members of that community working
group were plaintiffs in the original action that sought to overturn the USR so eventually the working group
discussions broke down and ultimately the $100,000 landscaping fund was not created. Mr. Beck said that
it seems some of the legal ramifications have slid along and kept the applicant from accomplishing some
things on behalf of the neighbors that they needed to do and yet production kept going on.
David Hagerman said that the $100,000 fund was offered up from day one and the way the funds were to
work is the request was to go through the Homeowners Association. The Homeowners Association would
select how they wanted to spend that money and then Martin Marietta would then cut the check for those
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projects. He added that they reminded them at numerous community meetings, but the majority of the
responses were that they wanted to wait until the facility was built, and no requests were put forward from
the Homeowners Association.
Commissioner Wailes noted that his family owns the reservoir and the farm ground to the south of this
facility and does have some concern with the water quality from the plant. He asked how that will be
managed with the Reorganized Farmer's Ditch Company, Koenig Reservoir, the laterals and the tile drains.
Mr. Connolly said it is Rock and Rails continued adherence to its Stormwater Management Plan registered
with CDPHE and although some of the conditions suggested by Mr. Cummings are not ones that you see
at the rezoning stage, but if they are reasonable conditions that involve monitoring they would be open to
a discussion about them.
Commissioner Ford said that one of the things they require around waste treatment facilities is groundwater
monitoring wells and asked if they considered putting wells in to check for water quality. Mr. Connolly said
that they don't presently have groundwater monitoring on the site, but they are governed by CDPHE
regulations and added that they are committed to doing that.
James Sham, 1627 Cole Boulevard, Lakewood, Colorado, said that the main components of an asphalt
plant is rock, asphalt cement and a little bit of lime. He explained how the stormwater was designed for the
site, what they have to test for and the frequency of the testing.
The Chair asked if there are any changes to the PC Resolution. Ms. Snyder referred to the notes on the
plat and stated that the mineral resource statement is shown as Numbers 19 and 20 and said that it should
all be under one number (19). She requested removing the numeral 20.
Motion: Remove numeral 20, as requested by Staff, Moved by Tom Cope, Seconded by Skip Holland.
Motion carried unanimously.
The Chair asked the applicant if they have read through the amended Conditions of Approval and if they
are in agreement with those. The applicant replied that they are in agreement.
Motion: Forward Case COZ20-0004 to the Board of County Commissioners along with the Conditions of
Approval with the Planning Commission's recommendation of denial, Moved by Skip Holland on the basis
that it is incompatible with the existing uses. He said that he is stunned by a statement that was made and
reported in one of the presentations by Congressman Ken Buck. He added that he is shocked by the air
pollution and not suggesting that it is directly related to this plant, but he thinks it is unavoidable that they
are involved. Richard Beck seconded the motion.
Commissioner Cope said that he has mixed feelings on the whole compatibility use, and he does
understand that you should be looking at compatibility uses as it stands today. However, he also
understands that if they look at that there will never be any changes to any zoning, period. He added that
they have to be proactive and look at what makes sense and how has transportation changed that now
allows more vehicles to come in and how rail systems come in to allow them to take more transportation
off the roads. He said that he is debating whether he considers this compatible or not as it is not fully
compatible with what is there but at the same time he thinks it is compatible with how changes have to be
made with the land uses and have to take into account what is there and what needs to be there. He said
that the need for aggregate is so great and that is why the State has basically said that aggregate mining
is required if it is underneath your property and added that we are running out of aggregate.
Commissioner Johnson said that he voted in support of the original USR because he believed that there
isn't a better location for the northern front range for this type of operation. He said in looking at all the
transportation issues, the proximity to what is going on and the need unfortunately it is an industrial type
activity. What he has problems with is there are a lot of things that we are having growing pains is to how
do we deal with this. He agreed with Staffs comments but thinks the problem is with the good neighbor
and who was here first. He added that the new kid on the block has the responsibility to adapt to what is
going on and that is where he is struggling with the compatibility issue although he believes the site is
located exactly where it needs to be.
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Kristine Ranslem
Secretary
Commissioner Beck agreed with Commissioner Cope and objectively when you look at just what Staff has
done and what this operation is and where it is located, he can't find a lot of fault with it. However, when
he gets subjective about it and look at the people it influences other than, just the dollar figures to the
economy, he has to decide that it is not the time and place for it.
Commissioner Wailes said it is close to him and is in agreement with the things that Commissioner Cope
said. From his back deck it is three-quarters of a mile away and he can see it. He added that the impact
has been fairly minimal for him and the train bisects his property twice. He is concerned about the intensity
of an 1-3 zone district. He added that the property just to the north of this was proposed for a zone change
and was denied for 1-2 uses and rightfully so because it is completely adjacent to Indianhead subdivision
where there is a little bit of offset here.
The Chair called for the vote:
Vote: Motion failed (summary: Yes = 4, No = 4, Abstain = 0).
Yes: Bruce Johnson, Skip Holland, Gene Stille, Richard Beck.
No: Dwaine Barclay, Lonnie Ford, Tom Cope, Michael Wailes.
Commissioner Ford said that he agrees with people that live around there and added that this is not a good
deal for them dealing with the noise, dust, and groundwater. He said that this is probably an ideal location
for this because of the railroad. He said that he agreed with Staff and voted against the motion.
Commissioner Stille said that he is concerned for the residents for the quality of life, health, safety and
welfare and doesn't think some of the issues has been mitigated or even an effort to do so. He doesn't
agree with the 1-3 zoning in this area but probably a lesser industrial use. He doesn't believe that the
applicant is compatible with the surrounding uses, however with regards to the economic wellbeing of the
County it would be well suited to have it there but there has to be something more than a dollar sign. He
added that there are too many questions left open.
Bob Choate, County Attorney, stated that in the past we have said that if a motion to approve fails then
that's how it would go forward, so he recommended asking if anyone wants to make a motion to approve
and give them that opportunity. He added that it seems clear as everyone provided good comments in
support of their votes one way or the other.
Commissioner Beck said that it is redundant with a 50/50 vote. No one from the Planning Commission
wished to make a different motion.
The Chair asked the public if there were other items of business that they would like to discuss. No one
wished to speak.
The Chair asked the Planning Commission members if there was any new business to discuss.
Commissioner Cope complimented Staff for putting the criteria on the back of the agenda for them.
Commissioner Johnson said that he was impressed with the way Staff presented this information. He
added that he is not comfortable with approving something of this magnitude without the details. He said
that with a USR they have the details. Commissioner Cope said the USR process was more of the spot
zoning mentality but then they did know and hold all the parties to development standards.
Meeting adjourned at 3:55 pm.
Respectfully submitted,
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