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Home My WebLink About20202123.tiffINVENTORY OF ITEMS FOR CONSIDERATION Applicant Gerrard Industries, LLC Item Case Number COZ20-0004 Submitted or Prepared Pnor to Hearing At Heanng 1 SPO Response - Kisker — email conversation — dated April 17 — April 29, 2020 X 2 SPO Response - Balich — letter — received April 28, 2020 X 3 SPO Response - Oplinger — letter — received April 28, 2020 X 4 SPO Response - Bogart — letter — received May 1, 2020 X 5 SPO Response - Fenton — letter — received May 1, 2020 X 6 SPO Response - Hopp — letter — received May 1, 2020 X 7 SPO Response — Bartolomei — letter - received May 4, 2020 X 8 SPO Response — Groff — letter — received May 4, 2020 X 9 SPO Response — Powis — email — dated May 5, 2020 X 10 SPO Response — Dirks — letter — received May 5, 2020 X 11 SPO Response — Tennal — letter — received May 5, 2020 X 12 SPO 2nd Response — Oplinger — letter — received May 5, 2020 X 13 SPO Response — Piraino — letter — received May 5, 2020 X 14 SPO Response — Suppes — email — dated May 7, 2020 X 15 SPO Response — Leinweber — letter — received May 7, 2020 X 16 SPO Response — Quam — letter — received May 7, 2020 X 17 SPO 2nd Response — Powis — email — received May 7, 2020 X 18 SPO Response — Nisly — letter — received May 8, 2020 X 19 SPO Response — Lord — letter — received May 8, 2020 X 20 SPO Response — Casey — letter — received May 8, 2020 X 21 SPO Response — Keck — letter — received May 8, 2020 X 22 SPO Response — Cummings — email — dated May 8, 2020 X 23 Legal Correspondence — Ireland Stapleton — email dated May 8, 2020 X Page 1 of 4 Item Pnor to At Heanng Heanng 24 SPO Response — Richardson — email — dated May 11, 2020 X 25 SPO Response — Smith — letter— received May 11, 2020 X 26 SPO Response — Markus — letter — received May 11, 2020 X 27 SPO Response — Boeddeker — letter — received May 11, 2020 X 28 SPO Response — Robertson — email — dated May 11, 2020 X 29 SPO Response — Cummings — email — dated May 11, 2020 X 30 SPO 2nd Response — Robertson — email May 11, 2020 X 31 SPO Response — Fnede — email — dated May 12, 2020 X 32 SPO Response — Straub — email — dated May 12, 2020 X 33 SPO Response - Straub — email — dated May 12, 2020 X 34 SPO Response — Wallace — letter — received May 13, 2020 X 35 SPO Response — Peters — letter — received May 13, 2020 X 36 SPO Duplicate Response — Suppes — letter — received May 13, 2020 X 37 SPO Response — Schlotter — letter — received May 13, 2020 X 38 SPO Response — Leinweber — letter — received May 13, 2020 X 39 SPO Response — Cooper — letter — received May 13, 2020 X 40 SPO Response — Cooper — letter — received May 13, 2020 X 41 SPO Response — Liggon — letter — received May 13, 2020 X 42 SPO Response — Sipes — letter — received May 13, 2020 X 43 SPO Response — Kisker — letter — received May 13, 2020 X 44 SPO Response — Anderson — letter — received May 13, 2020 X 45 SPO 3rd Response — Oplinger — letter — received May 13, 2020 X 46 SPO Response — Corner — email — dated May 13, 2020 X 47 SPO 3rd Response — Cummings — email — dated May 13, 2020 X 48 Public Response — Burns — email — dated May 13, 2020 X Page 2 of 4 Item Pnor to At Hearing Heanng 49 Public Response — Cresset Community Farm — email — dated May 13, 2020 X 50 Public Response — Burns — email — dated May 13, 2020 X 51 SPO 3rd Response Kisker — email — dated May 13, 2020 X 52 SPO Response — Brown — email — dated May 14, 2020 X 53 Public Response — Bole — email — dated May 14, 2020 X 54 SPO Response — Rosenquist — email — dated May 12, 2020 X 55 SPO Response — Ross — email — dated May 14, 2020 X 56 SPO Response — Ross — email — dated May 14, 2020 X 57 SPO Response — Bickling — email — dated May 14, 2020 X 58 SPO Response — Rhoades — letter — received May 15, 2020 X 59 SPO 4t Response — Robertson — duplicate letter — received May 15, 2020 X 60 SPO 5d' Response — Robertson — duplicate letter — received May 15, 2020 X 61 SPO Response — Kupec — letter — received May 15, 2020 X 62 SPO Response — Worrell — letter received May 15, 2020 X 63 SPO 4th Response — Oplinger — letter — received May 15, 2020 X 64 SPO 4th Response — Kisker — letter — received May 15, 2020 • X 65 SPO 2nd Response — Piraino — letter — received May 15, 2020 X 66 SPO 3'd Response — Straub — letter — received May 15, 2020 X 67 SPO 4th Response — Straub — letter — received May 15 2020 X 68 SPO Response — Meusch — letter — received May 15, 2020 X 69 SPO 2nd Response — Rosenquist — letter — received May 19, 2020 X 70 Property Owner Response to Johnstown Referral — email — dated May 26, 2020 X 71 Surrounding Resident Support Letter — email dated May 26, 2020 X 72 Public Support Response — NAI Affinity — email — dated May 27, 2020 X 73 Applicant Response to Reorganized Farmers Ditch Company — email — dated May 28, 2020 X Page 3 of 4 Item Prior to At Hearing Hearing 74 Applicant 2020 Response to Hill and Brush Ditch Company - email - dated May 28, X 75 Applicant Response to Referral Comments — email — dated May 28, 2020 X 76 Applicant Summary of DPHE Complaints — email — dated May 28. 2020 X 77 Johnstown Land Use Framework Plan X 78 Windsor Growth Framework Strategy . X 79 Greeley Land Use Guidance Map . X 80 North Front Range MPO Land Use Allocation Model X 81 Federal Highway Administration Freight and Land Use Handbook X 82 AECOM Noise Analysis 3-26-2015 X 83 Findings and Resolution Concerning Indianhead Subdivision Plat 12-20-1972 X 84 Resolution — Approval of Indianhead Subdivision 1-20-1976 X . 85 Property email — dated Owner June Response 3, 2020 to Reorganized Farms Ditch Company Referral - X 86 Public Support Response — Holman — email — dated June 4, 2020 X 87 Interladco v. Billings. submitted by Oplinger — email — dated June 6. 2020 X 88 SPO Support Response — Anonymous — email — dated June 6. 2020 X 89 SPO 5th Response — Straub — email — dated June 8. 2020 X 90 SPO Support Response — Jackson email — dated June 9, 2020 X — 91 Public Support Response — Kraemer — email June 9, 2020 X —dated I hereby certify that the ninety-one items identified herein was submitted to the Department of Planning Services at or prior to the scheduled Planning Commissioners hearing. Angela n Y �er. Planner/II 9 Page 4 of 4 Angela Snyder From: Sent: To: Cc: Subject: Dave Kisker <dave.kisker@gmail.com> Friday, April 17, 2020 9:34 AM Angela Snyder Tom Parko Jr.; James Silvestro, Ireland -Stapleton Re: COZ20-0004 referrals EXHIBIT Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Ms. Snyder, Thanks for your response. I have reviewed that information. There appears to be an error. In fact, that site IS currently in violation of the Weld County zoning code. There is no valid USR on the site, having been first invalidated by the Colorado Court of Appeals, and secondly, the application having been withdrawn by Martin Marietta Materials. The concrete batch plant is not an allowed use on AG zoned land. Furthermore, the issue of possible ICCTA preemption is currently being contested and is pending before the U.S. District Court. It has no relevance to the question of the Weld County zoning code violation. Therefore, there is clearly a zoning violation. Please correct the record. Thanks, Dave Kisker On Fri, Apr 17, 2020, 9:19 AM Angela Snyder <asnyder@weldgov.com>wrote: Mr. Kisker, You are able to view all referral agencies and status' of referral review on our E -Permit Center: https://accela-aca.co.weld.co.us/citizenaccess/Default.aspx No login is required, simply search Planning Applications and use the case number for the Record No. Case No. COZ20-0004 Once in the case record, scroll to the bottom and expand the "More Details" option and then expand "Application Information Table." This is a complete list of the referral agencies notified of the Change of Zone Application. Regards, Angela Angela Snyder, CFM Planner II 1555 N 17th Ave 1 Greeley, CO 80631 asnyder@weldgov.com PHONE: (970) 400-3525 FAX: (970) 304-6498 Confidentiality Notice: This electronic transmission and any attached documents or other writings are intended only for the person or entity to which it is addressed and may contain information that is privileged, confidential or otherwise protected from disclosure. If you have received this communication in error, please immediately notify sender by return e-mail and destroy the communication. Any disclosure, copying, distribution or the taking of any action concerning the contents of this communication or any attachments by anyone other than the named recipient is strictly prohibited. Original Message From: Dave Kisker <dave.kisker@gmail.com> Sent: Thursday, April 16, 2020 4:39 PM To: Angela Snyder <asnyder@weldgov.com> Subject: COZ20-0004 referrals Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Ms. Snyder, I see that you have sent referrals to the four nearby communities: Johnstown, Milliken, Windsor and Greeley regarding the above listed rezoning application. Are there other referrals that you plan to send? Thanks, Dave Kisker 2 From: To: Subject: Date: Attachments: Dave Kisker Angela Snyder; Tom Parko ..r. Another error (sorry...details matter) Friday, April 17, 2020 1:48:52 PM enikaiplibaihia.ong Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Ms. Snyder, In continuing to review the file for COZ20-0004, I have discovered another problem. The incorrect Fire District is identified. Instead of Windsor Severance, it's Front Range Fire Rescue. See the tax record below. Please confirm that a referral has been/will be sent to this organization. Dave Kisker Tax Authorities Account R8945992 Parcel 095718300050 Space Account Type Tax Year Industrial 2020 Buildings Actual Value Assessed Value 4 4.839.494 1,403,460 S Tax Area 2371 2371 2371 2371 2371 2371 2371 2371 2371 Total tr District ID 0700 1203 0510 1050 0306 0301 0205 0901 0100 District Name AIMS JUNIOR COLLEGE BIG THOMPSON CONSERVATION FRONT R tJGE FIRE RESCUE FIRE PROTECTION DISTRICT HIGH PLAINS LIBRARY LITTLE THOMPSON WATER (LPN) NORTHERN COLORADO WATER (NC i SCHOOL DIST RE5J-JOHNSTO WN THOMPSON RIVER REC WELD COUNTY Current Mill Leery 6.354 0.000 11.491 3.217 0.000 1.000 24.000 3.594 15.038 64.694 From: Dave Kisker To: Angela Snyder Cc: Tom Parko Jr.; John Cummings; Mark E. Lacis; James Silvestro. Ireland -Stapleton; k.me endez@comcast.net Subject: Re: Weld County Planning Case COZ20-0004 Date: Wednesday, April 29, 2020 4:04:42 PM <<u t inn : This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Ms. Snyder, I have now been informed that both ditch companies have received the referral request within the last 3 days, so you may disregard that portion of the message. The remaining issues still need to be addressed. Dave Kisker, President CLR-34 Neighborhoods Assn. On 4/29/2020 3:06 PM, Dave Kisker wrote: PLEASE ADD THIS INFORMATION TO THE RECORD FOR COZ20- 0004 Ms. Snyder, On April 16, 2020, I sent a request to you asking you to confirm the organizations to whom referrals were going to be sent regarding the Weld County Planning case COZ20-0004. Your response directed me to the Weld County E -permit center. At that location, reference is made indicating that referrals are to be sent to two ditch companies, the Reorganized Farmers Ditch Company, and the Hill and Brush Ditch Company. However, as of the end of last week, neither ditch company had received the referral request, as per my communication with Mr. Cummings. I would like to confirm with this email that in fact the County does intend to seek referral comments from these two organizations without delay, and that both ditch companies will be given adequate time to consider the referral request, given this delay. In particular, the current deadline of May 14, 2020 is not appropriate. On a separate topic, it is my understanding that the Town of Windsor has sent communication to Weld County that Windsor does NOT support this rezoning request, but, as of today, that communication from Windsor does not appear to be present in the record for this case. I would like to confirm that you have received that communication and that it will be added to the case record forthwith. I also wish to follow up on my earlier email to which I have gotten no response, which documented the fact that the current use is NOT in compliance with the current Weld County Code since a concrete plant is not an allowed use in the agricultural zone district. Any assertion by the applicant that their concrete manufacturing operation is pre-empted under the ICCTA must be considered to be invalid since that matter is in litigation with a trial date scheduled for late August I would like a response regarding these issues at your earliest convenience Regards, Dave Kisker, President CLR-34 Neighborhoods Assn Weld County Department of Planning Services 1555 N 17'h Ave Greeley, Colorado 80631 R E : Case # COZ20-0004 Attn: Angela Snyder Ms. Snyder, k4 ExHale 2 Ink ty APR 28 2020 ti`��.Itl Lo !qty I ldtn 1s GREELEY O> t-1CE We received a postcard informing us that you are reviewing an application from Gerrard Investments, LLC c/o Rock & Rail, LLC to change the zone from the Agricultural Zone District to the 1-3 (Heavy Industrial) Zone District and that we were allowed to provide feedback due to it being within 500 feet of my property. We have reviewed the proposed plan for a batch/transloading facility and do have many questions, as from what we can already observe and hear it seems that they are already doing this activity at that site. Consistent noise levels and occasional dust coming from that area are already very disruptive. We are opposed to the current activity and the idea of any additional activity due to the noise level and potential that they will add more structures and increase activity closer to unused portion of their property, that is even closer to our property. The level of noise is already disruptive to what was a relatively quiet area when we first purchased our house and moved to this area. I also worry about my own health issues (asthma) being exacerbated by an increase in dust levels. Finally, we are obviously worried about the value of our property being impacted by this activity so close to our house. It may be difficult to get fair market value or even find a future buyer if we ever decided to sell our property due industrial activity so close to our property. It may be helpful if Rock & Rail were actually talking to people in the residential areas that are and will be impacted by their activity and trying to work together with the residential communities to find a middle ground that is acceptable/fair for all parties impacted. Personally, we support any job creating industry and could be more open to having a facility, such as theirs, within such a close proximity to our property if there were some efforts on their part to work with us. We obviously can't speak for any of our other neighbors, but we personally are very open to more dialogue about this matter. Respectfully, lk Robert and Ling Balich 27627 Hopi Trail Loveland, CO 80534 307-760-2203 f3Jc1k P 27687 Hopi Trail Johnstown, CO 80534 25 April 2020 Re: Case COZ20-0004 Dear Ms. Snyder: EXHIBIT 3 k 4%.4 APR n emln LULU ' r Li r As a resident of the Indianhead Estates subdivision near the corner of US 34 and County road 15, I want to express my strongest possible opposition to the proposed rezoning of the nearby unlawful Martin Marietta Materials/Rock & Rail (MMM/R&R) facility. As you may know, the County Commissioners approved a USR for MMM to construct this facility in 2015 over the objection of the neighborhood, surrounding municipalities, the Planning Staff, and the Planning Commission. A number of neighbors, including myself, promptly filed an appeal. In 2017 the Colorado Court of Appeals reversed this approval, citing the County's failure to demonstrate compatibility because of unsupported evidence that the facility met noise requirements. The Court called the approval an Abuse of Discretion. While the appeal was pending, the County allowed MMM to begin construction of its facility on agriculturally zoned land. With the Court's decision, the USR was terminated and the facility became unlawful. Yet Weld County made no effort to remedy this condition. In September 2018 MMM advised the County that Rock & Rail, a rail subsidiary, had acquired the leasehold and ownership of the facility and would commence operation, claiming preemption under the Interstate Commerce Commission Termination Act. The Merriam -Webster Dictionary gives this definition of preemption: 3a : a doctrine in law according to which federal law supersedes state law when federal law is in conflict with a state law. b : a doctrine in law according to which the legislation of a superior government (such as a state government) supersedes that of an inferior government (such as a municipal government) in conflicts of law. Clearly, preemption allows the federal government to override state and local law, not to void it. This is further clarified in a 2001 opinion by the 11th U.S. Circuit Court of Appeals, Florida East Coast Railway v. City of West Palm Beach: The ICCTA pre-emption provision does not preclude the application of "all other law." Cf. 49 U.S.C. § 11341(a) (with regard to mergers and acquisitions, railroad companies exempt from "antitrust laws and from all other law, including State and municipal law"). Rather, express pre- emption applies only to state laws "with respect to regulation of rail transportation." 49 U.S.C. § 10501(b) (emphasis added). This necessarily means something qualitatively different from laws "with respect to rail transportation." See Bennett v. Spear, 520 U.S. 154, 173 (1997) (relying on "'cardinal principle of statutory construction' [that courts must] 'give effect, if possible, to every clause and word of a statute I") (citations omitted) In this manner, Congress narrowly tailored the ICCTA pre-emption provision to displace only "regulation," i e , those state laws that may reasonably be said to have the effect of "manag[ing]" or "govern[ing]" rail transportation, Black's Law Dictionary 1286 (6th ed 1990), while permitting the continued application of laws having a more remote or incidental effect on rail transportation And later, It is clear, however, that in no way does federal pre-emption under the ICCTA mandate that municipalities allow any private entity to operate in a residentially zoned area simply because the entity is under a lease from the railroad The language of the ICCTA pre-emption provision in no way suggests that local regulation was to be so thoroughly disabled Clearly, federal preemption does not render the Weld County Code null and void Instead, it preempts the code where it governs rail transportation (which it doesn't) The facility became unlawful with the 2017 Court of Appeals Decision and remains so today, federal preemption notwithstanding On behalf of the members of the community I insist that the application be changed to reflect this fact What constitutes "rail transportation" is currently under litigation in the U S District Court of Colorado, with a trial set for August 24-27 Our neighborhood believes that all activity on the facility other than train operation and unloading are not preempted, and so are subject to County and State Jurisdiction This belief is based on a large number of Surface Transportation Board and U S Circuit Court opinions Apparently MMM/R&R agrees, because on Page 5 of the application it is stated that "The subject property is operated in conformance with all noise limitations imposed by state and local governments that are not otherwise preempted by the ICCTA " There is no evidence to support this assertion The 2017 Court of Appeals decision was based on a lack of evidence of compatibility due to an inability to demonstrate compliance with noise requirements Since that decision MMM/R&R has made no effort to demonstrate this compliance, and in fact has made no known effort to measure local noise levels In fact, the community has been bombarded with noise for over a year, much of it occurring with no train or locomotives on site Finally, I would like to point out that this is a textbook example of "spot rezoning." It is being done for the sole benefit of a single party, to the detriment of nearby homeowners The Court of Appeals has already ruled that there is no evidence that applicable noise requirements will be met The application makes claims of compatibility that are dubious at best The Weld County Code provides no guidance As to what "compatibility " means, leaving it to the arbitrary judgement of the commissioners. This point was raised by Judge James S Casebolt of the Colorado Court of Appeals during the November 7, 2017 appeals hearing In summary, the application for Case COZ20-0004 presents a legal nightmare to Weld County, particularly the unlawful nature of the facility A 130 acre noisy, dusty heavy industrial complex is simply not compatible with a residential community whose origins go back to 1977 The Board of Commissioners should have recognized this fact in 2015, but "arbitrarily and capriciously" chose not to, as determined by the Colorado Court of Appeals in 2017 This application offers the Board the opportunity to change course by recognizing the fundamentally unlawful nature of MMM/R&R's continuing efforts to "put lipstick on a pig" Aside from the local neighborhood's concerns, this case presents a challenge to the legitimacy of the Weld County government itself Potential investors are reluctant to invest in Weld County because they have little confidence that any Board land use decisions will survive legal scrutiny A 1961 Colorado Supreme Court Decision, Clark v City of Boulder, stated that Property owners have the right to rely on existing zoning regulations when there has been no material change in the character of the neighborhood which may require re -zoning in the public interest I insist that Planning revise the application to show that the facility is in violation of zoning law I further insist that Planning recommend denial based on the issues presented Very truly yours, A :3 Gary L. Oplinger Jim '?_ r r 1 q f r Trina Bogart 6645 Apache Road Loveland, CO 80534 April 26, 2020 EXHIBIT 4 To: Weld County Commissioners Weld County Department of Planning Services 1555 N 17th Avenue Greeley, CO 80631 Case number: CO720-0004 Dear Weld County Commissioners: 0 itJ GRELLLY 1 2029 vi- F;L I am writing this letter in opposition of the application recently submitted by Rock and Rail -Martin Marietta to rezone their land parcel to 1-3 (Heavy Industrial). It is no secret that Indian Head Estates and other surrounding communities have been opposed to this development from the very beginning. It has been apparent from the outset that this development would not be compatible with the surrounding community, and that has proven to be true over the past 5 years that we have been living next to this operation. We have been exposed to excessive noise, dust, and increased traffic from the many trucks leaving the facility. Our family has concerns over the potential health effects of chronic exposure to particulate matter in the air generated by the operations. We have all suffered increased symptoms of nasal irritation, burning lungs, and cough. Even our dog sneezes all the time and has a runny nose. Within an hour of cleaning our home, there is a new layer of dust on everything! This operation is loud! We hear noises at all hours of the day and night. The noise stems from loading and unloading aggregate and from trains coming and going. The trains blow their horns, the wheels squeal, the engine rumbles, and the noise associated with linking the trains is obnoxious. They do not limit these noisy operations to normal hours, they frequently occur between midnight and 5:00 am. This is obviously not compatible with a neighborhood trying to get any sleep. Living next to this operation has had a negative impact on our family and this wonderful community. This plant should have never been approved in the first place, and Martin Marietta has not been a good neighbor. I am asking that given this new opportunity to review the compatibility of this operation with the surrounding communities, that our Weld County Commissioners will choose to do the right thing and deny this application. Sincerely, 71 lii A -44C 4 Trina Bogart EXHIBIT Weld County Department of Planning 1555 N. 17th Avenue Greeley, CO 80631 To the Weld County Planning Department: April 26, 2020 6720 Apache Rd. Loveland, CO 80534 (Weld County) rrr IL .4 HAY 012020 Vvelu County Ha' GREELE I u, t ICE' tiiicrfic Regarding case number COZ20-0004 we are asking you and the Board to support your stakeholders in Indian Head Estates West. We are asking that you do not support the activity of Rock and Rail nor their request for different zoning. What they have done to date is unconstitutional and very detrimental to the healthy development of a neighborhood that supports Weld County. Our data shows that. We ask that you become infocmed if you are not, do what is best for we the people of this geographical area apddo not support the requested zoning change by Rock and Rail. We know none of you would support this activity in your backyard particularly the asphalt plant . We know you WOULD NOT want the smell of asphalt in your beautiful Colorado backyard. We don't either. Thank you very much! Sincerely, Joanne and Scott Fenton 303-250-3248 Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 dintrivrn ti Y 012020 �.:.,iThrintig Department GF EELEY OFFICE To the members of Weld County Planning Department, Case Number COZ20-0004 EXHIBIT 6 We are residents of Indianhead Estates, the closest neighborhood to Rock and Rail Martin Marietta Materials Plant. We wish to file a formal complaint to the aforementioned company's request to rezone to Industrial -3, Case Number COZ20-0004. Our neighborhood has been disputing the existing operations of this company due to numerous violations of noise and air quality standards. We implore each of you to place yourselves in our position, just long enough to imagine what we currently endure as a result of Rock and Rail's existence so close to our neighborhood. Think of being awakened at 1:15am on 4/20/2020, to the hideous sounds of a blaring horn of an arriving train, followed by grinding metal on metal as it begins to jockey into position for unloading. These trains continue to run for five to six hours for what seems to be no apparent reason all the while repeatedly blaring the train horn. In another instance on 4/8/2020, these disturbances lasted 5 hours until approximately 5:30am, at which time the rock was finally unloaded. This creates loud and aggravating disturbances that make it impossible to sleep. These disturbances have happened on numerous occasions Now imagine our horror at the thought of adding the production of asphalt to this plant. The stench of tar gases and smoke, wafting in our direction, polluting our beautiful neighborhood with yet more carcinogenic pollutants. Absolutely none of us want to be exposed to these airborne gases and smoke. They are known cancer -causing elements, have the potential to cause eye irritation, skin rashes, throat irritation, and yet these exposures may be allowed. Our hope is that in good conscience you decide not to grant Rock and Rail the rezoning permit that will allow them to cause harm and noise disturbances to our quiet neighborhood, not to mention the cattle industry and fanning that all existed long before they came into our area. We are pleading with you to consider the health and well being of those that will be effected. Thank you for considering our thoughts. Douglas A Hopp Ann E Hopp 27570 Hopi Trail Loveland, CO 80534 p r pv pi) April 30, 2020 Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: Case COZ20-0004 — Change of Property Zone Attn: Angela Snyder, Planner Dear Ms Snyder: NAY 4, 2020 v ld County Planning t: c'p GREELEY OFFICE EXHIBIT 7 We received your notice about Gerard Investments, I,LC, c/o Rock & Rail, LLC's request to change their concrete manufacturing plant's property zone from Agricultural Zone District to I-3 Heavy Industrial Zone District. And frankly, we are shocked that they are attempting this obvious ploy to get around the years of dispute they've had with the surrounding homes. For your knowledge, they are scheduled to appear in Federal Court in Denver August 24-27, 2020. It was postponed from a May date due to the Covid-19 issues, and now the company is trying to manipulate Weld County Commissioners to circumvent what they know will probably be the final legal battle in which they apparently believe they will lose again. As your notification card stated, we are less the 500 feet away from this noisy, dusty plant built on Agricultural Zoned land, affecting both the health and safety of all the residents around it. In their lengthy baffle with surrounding homes, they eventually changed themselves into Rock & Rail — their own private rail subsidiary that they purchased during this legal battle. Since Martin Marietta's plant switched over to a being a "rail" company, their noise factor and dust factor has increased exponentially. Now if we try to sleep at night, we are interrupted regularly during the hours of 12 midnight to Sam with a cacophony of loud noises. And ironically those are the ONLY hours of the day when they "operate" their rail cars. We are bombarded by loud screeches on the rails, trains blasting on their horns, engines sifting idle loudly rumbling for at least 30 minutes at a time, locomotives coupling and uncoupling loudly, and the sounds of gravel pouring into the rail cars. And all of this is in the wee hours of THE NIGHT! My 70 -year old husband has nine stents in his heart, and his health is being greatly affected by the constant interruptions of his sleep. Our doctor says the only real help for him would be good, uninterrupted sleep, which at this point is impossible due to Rock & Rail's abusively noisy nightly "rail" activities. I am certain that Weld County Commissioners do not want to jeopardize the health and safety of their tax -paying residents, who rely on your good faith to protect us. We live in a well - established beautiful, well -maintained development that was peaceful and serene until all this continuous chaos was created by a concrete manufacturing plant being built on adjacent agricultural land. According to County guidelines, the noise this current operation produces is clearly above the residential level at my property line and is therefore NOT COMPATIBLE with residential development. We have the right to live in our homes with windows open day or night and to enjoy being outside in our back yard without horrible sounds and dust blown on us. That's what we signed up for when we purchased our home adjacent to agricultural land, not industrial land. And when reading over the company's zone -change proposal where Rock & Rail states they are mostly surrounded by industrial or farm property, it is blatantly not true. While all of the "industries" or businesses they list are located in the general area of their facility within miles, they are nowhere adjacent to their property. As a matter of fact, the property to the north of the applicant was denied an 1-2 application. So in truth the applicant is surrounded by agricultural land and residential properties just like it was when they first built on this agriculturally -zoned property. They also mention in their zone -change proposal that "utilizing rail substantially reduces truck pollution," yet all day long Monday through Friday there are trucks coming and going from the plant. The noise, traffic, and air pollution from constant truck traffic is definitely NOT beneficial to the area's air quality, as they falsely state! We are certain Weld County Commissioners do not wish to jeopardize our health and safety by allowing a current concrete manufacturing plant (which is already wrong) try to become an even - worse asphalt plant operating next to its residents! The County commissioners are elected and work for its tax -paying citizens, so allowing this current noise and air -quality travesty to become even worse by changing the Agricultural zoning to Heavy Industrial zoning would completely drop the ball on protecting us!! An I-3 zone is open to ANY allowable use, and from our experience with the applicant's facility over these past few years, it is clear that the applicant will abuse that right to the greatest extent, greatly harming the residential developments and agricultural land that surrounds it. We rely on you to support us, your County citizens, who were all here living in our homes WAY before this concrete manufacturing plant was allowed to build on the adjacent agriculturally -zoned land. Please put this letter of protest into the public records. And... please, please DO NOT GRANT this company the right to change the zoning of the land just to suit their needs, against the health and safety of all the residents around it. With hope that you will do the right thing, ft& _ Tricia and Ron Bartolomei 27575 Hopi Trail Loveland, CO 80534-8279 v q/3o/Qo 44 O A - • EXHIBIT uje ((pun 4 1 Pia vkikori 04\wie Ss .: �h Gr°`(IC SvAcQ\ cioA evAD &k&e3 -9/26/70020 c911'15 akac tic coo+ Pb. apreekstini (Rod(' 4 Qcst I I Lqc.r+IYI cks'c446,k, ci./2fick ugi4 f e In/km V\e`ir cproreni7 Jan eL cif 14 1 Cog 0 �n r -v rn o a snag fl.23 mco CD rPi" n o m r -cc; isks uue (Ace \n4uv9 Cowie `-si-iifik 4 h e MI 0 -(2 che n n eJ �� tovVeLe? baC-14(44) ; W4Vm —+he 1JcAs4 � noiS°2 -FS O-0,, /3: k 00.i4A lo-yk C61,0 re+. .4-cuO/CS ALLfrop roLtn% Covere± -%uon o+.t- M1'1 'ice/ 13 `�- 11111 --` -AT a+ 414.e gop kieRprd) -Lc rtAn -t s'echo 7�,��F \ACtirn'S nil +he +��e 3 rLA ra flow 4 -he rp zoh thcp tail- fly icy I- i fe w) 1 r ece 6cro,A01,e, ,AD T(te,/ kvwe nem-- d --1-1-e_yt -RI (e_ C -k (‘-`‘' `Q'raCt--P5 4O Vyuril uu-11-\(\ \ teqi s ct. O / uotv,,,) UFO ,,vg ay,' O`VIP A- 16 bJ -i'V\--\S yD -Be O K , pU Nus24 -Vo 0,(3Thryle 46 6 W- a, re 0( Gl nA sce t-d'1ot-I" 5 ' \r\ Ppi)wl no boa eAvi you fi'wia3e, ---Ec -\-\•e% a 1 kw 4-O pu---F otsptAAH- Or- so)'171e. dAkor v(el mo-n a)molitoilit Vr, eta 1y 3cits-1)(1 ASS by u.s , P ,(6tts ke. ckpcQe.r S4 434) re zcN`l h ----\---04 a-lv-O ,,, CA ---f\ i ct \ - 3 LA._.,O bk,\D o f - .J2)(vg 1 From: To: Subject: Date: william powis Angela Snyder Change of zoning case #CO720-0004 Tuesday, May 5, 2020 1:56:01 PM Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. MS Angela Snyder My wife and I live at 27601 Hopi Trail, Johnstown Co. 80534-8280. We are located in Indianhead Estates Subdivision, about 500 feet in back of the cement processing yard of Martin Marietta Materials aka Rock and Rail. By allowing them a zoning change to Heavy Industrial 1-3 would be a disservice to our community and neighbors. MM came in set up its business under contest to disallow a non agriculture type business in zone . When that came under intense litigation the sold the company to Rock and Rail a railroad to come under federal laws and rules to circumvent colorado county and state laws. Now they trying to go back and use state and county laws to again bypass litigation. They seek to put in an asphalt plant, and possibly other toxic hazards to people and the environment. As weld county stated in the postcard sent out I am writing our objections. My wife has numerous health issues Asthma, High BP, I have stage 4 Non Hodgkin's Lymphoma and several immune system disorders. We moved to live out our lives in a clean and safe environment. When the wind blows we get all types of cement dust , aggregate dust that covers anything left out, from the existing cement plant , who knows from an asphalt plant would bring . Large Companies should not be allowed to run roughshod over people and change zoning because they have unlimited resources. William and Sharon Powis 303-884-6041 Ms. Angela Snyder Weld County Department and Planning 1555 N 17th Ave Greeley, CO 80631 April 28, 2020 Wolfgang Dirks 6825 Apache Road Johnstown, CO 80534 RE: COZ20-004 Gerrard Investments, LLC 0/0 Rock & Rail, LLC Dear Ms. Snyder EXHIBIT s 10 itif\sm. 441-7r114:Ut r rm-s HAY 0 Z020 Weld . CL illy Liu'', . C)1-rICE �,,,,..,, In 2012, I built my retirement home in the Indianhead West neighborhood. At that time, this very tranquil neighborhood was located next to open farm land with beautiful views of the Colorado mountains beyond it. This neighborhood was so peaceful and quiet, that you could leave your windows open day and night without any disturbing noises or dust clouds. This all changed when Martin Marietta, now Rock & Rail, built their industrial facility less than 500' from my house. Very excessive noises from the trains, trucks, recycled concrete crusning, and many other loud noises started very early in the morning often exceeding the residential noise limit by over 20db day and night every day of the week including Saturdays, Sundays and holidays. Over two years ago I developed severe sinus congestion and the dust and fumes from the Rock & Rail site make it worse. It is devastating to learn that Rock & Rail wants to change the zoning to Industrial 1-3, which would create even more disturbing noises and allows an additional asphalt plant, which would make the air quality much worse. Please deny this application and prevent this area along US -34 from becoming a very heavy industrial area. Instead, this area should become commercial and residential like the Centerra area only a few miles West. Please make this letter part of the Official Record Thank you Wolfgang Dirks 'F'O C11 S +.i'1 \ 'lsv"R O..%. 644-S Ilo...‘"-‘ es ckA 07(090 Colo_ sea Les v a • 2 cs_se, c� et? i ca‘t, -Sr to Si al 493 5) L1/4J F' retront"---) NAY E •► Weld ci manning LGpartme„t .t�c_1.EY OFFICg 4, PC. e• ---tel‘neas I (DO 4— o c..Cb • v IIvt. Tvtrs._ rola 4..0 It r a ca A -c v2 ?6, / O (L -Q. _3 •e_ cat& s LAJ %LL-) eLi (.4- c . t• 0-- ‘Th. fiV `-' .re all r / g qt.. `rt,e a NaN 4& A -L • ' 3 ICA.c...v e.. f at to*.i Pt \ (... C: -.O ca,.., %..% c Lis 1/4alk__AcSS ‘rr-% A J,- .a.0 %aura. ck. v1/40,4% a are Ck.. S 1,44 \ ‘4--% yo ) e_ o if i ac..1 42... bet° "\s" Rite egal:::"-‘ 9., -4-L... s 0,.....,-- et, 4- 0 le %-i 1 s 3 4-1._ A- Lf l e. s. Incas 4- y sauci.ry %t v , e, CN a r- cA S 10cbl•Ls 4-0 ION G�Y24 rr, kleaAcika_a4 '%cci 6—notCoey QV Q v -S 4 V \ gin � m Yl _ v'r � 3 —17? 4_O _0 n __.s Fl e ro _ oo.v.�� o CV hc.v cY —a- Way` 4,I --cs 6cze "4 -t- TiS o 0 0,„2 ® \\. o b .L v Q Z h tJ ¢ ct.._ e.4. pb *l J --3 L Q t I _ l i • Itee L4‘ CA -f&. 041/40u e.Cose\r- 4r4- kt.,Aft tatta—T-4.:n cx.n � %co... \Pt ca °C.\ cos..‘a. c: v. i csa e4. 4-}c t-Jc. sd-t• {C. _ CaNti 970- q(co7lQ a7tu`io CLLLe�ry 27687 Hopi Trai Johnstown, CO 80534 25 April 2020 Re: Case COZ20-0004 Dear Ms. Snyder: S EXHIBIT 12 HAY o5 vvcjj Cuilr iy VLinn i.-, GREELEY OFFICE As a resident of the Indianhead Estates subdivision near the corner of US 34 and County road 15, I want to express my strongest possible opposition to the proposed rezoning of the nearby unlawful Martin Marietta Materials/Rock & Rail (MMM/R&R) facility. On December 16-17, 2019 the Denver Post reported the following: The Environmental Protection Agency on Monday reclassified Colorado as a "serious" violator of federal air quality laws, forcing stricter state efforts to reduce air pollution. "EPA is taking this action based on monitoring data showing that ozone remains a challenge in Denver and northern Front Range communities," the agency's regional administrator Greg Sopkin said in a prepared statement announcing the decision. This triggers a requirement that Colorado must reduce pollution by 2021, and the state health department plans to issue permits for any industrial operation that emits more than 50 tons of pollution a year, down from the current permitting threshold of 100 tons. As the following photographs show, the MMM/R&R facility is a serious emitter of dust pollution. Although the facility may claim to have a Colorado air quality permit, this is not evidence of compliance with Colorado emissions regulations in the face of this evidence. An industrial facility such as this is required to report any unintended excess emissions to regulatory authorities. In the absence of such reports MMM/R&R cannot be considered to have provided evidence of compatibility with the surrounding area. Very truly yours, Gary L. Oplinger 2019.08.14 14:25 as •. • • • ,� •P, •- _v r X11611# t~ 4‘641, r t.Y• R. - �. fr Y • This photograph was taken on August 15, 2019 from the asthma. property of a homeowner who suffers from Ms. Angela Snyder Weld County Department of Planning 1555 N 1711 Ave Greeley, Co 80631 April 30, 2020 Jim Piraino 27660 Hopi Trail Johnstown, Co 80534 EXHIBIT 13 RE: COZ20-004 Gerrard Investments, LLC d o Rock & Rail, LLC Dear Ms. Snyder: Thank you for taking the time to read this. PIM 05 2020 tiyE,l�; L..,::tl,y- If'!,. Gir IC;k I am in receipt of an Application Review Notification Card as a result of my residence being within 500 ft of the above application to change the zone from the current Agricultural Zone District to the I-3 (Heavy Industrial) Zone District. I am certain you are aware of the history of this property. A prior USR application was submitted by the same applicant for a concrete and asphalt plant to be constructed and operated back in 2015 Your office reviewed the application and recommended to the Planning Commissioners that the application be denied on the grounds of incompatibility. After a hearing with public input, the Planning Commissioners voted to deny the application. However, in an exceedingly long public hearing, the Weld County Board of Commissioners ignored the planning staff input, ignored the planning commission decision and ignored all other input to deny, and unanimously decided to approve the USR. That decision caused much anger and initiated the community surrounding the subject property to seek legal recourse. In the end the Colorado State Appellate Court issued a decision stating that the WCBOC overreached and errored in their decision and ordered reversal. Shortly after, Martin Marietta sold the development (which they constructed at their own risk and stated so in a letter to the county. see attached) to the defunct Rock & Rail for $10! They immediately began operating the facility and issued a statement that they were now federally controlled and no longer under Colorado State or Weld County control. At the same time, they sued me and others in our community in a quasi -cease and desist demand arguing that they are now a federally controlled railroad and have every right to continue to manufacture concrete as part of their railroad operation and we should not question that right We vehemently disagree. Their claim is set to be heard in court by Judge Jackson in late August 2020 (rescheduled from May 11, 2020 due to Covid-19) In the meantime, as our weather becomes more inducive to being outdoors, our neighborhood tranquility is greatly disturbed daily by the constant noise associated with Rock & Rail's concrete production They have long ago abandoned the building standards that were imposed as part of the USR approval. Their attitude is truly one of "we can do whatever we want" I A few examples: ® Trains: 100 plus cars long plus 4 engines pulling them, arriving at all hours but primarily between midnight and 5 AM. The unloading process necessitates the dumping of one car at a time. Imagine the 4 engines revving up to move one car at a time through the unloading station, then stopping to unload and repeating the process until all cars are unloaded. This takes in excess of 8 hours. Then, of course, there is the squealing wheels as they negotiate the tight loop that was built This nocturnal train activity begs the question. If they own the railroad, could they not easily schedule the departure and arrival times during the less intrusive daytime hours? O Production noises: skip loaders with back up beepers, conveyors, concrete crushing equipment, air compressors and sundry other noises that exceed the residential noise limits at the property lines. We have evidence of this constant and consistent excessive noise that has been recorded and documented on certified sound meters. o Hours of operation. It is not unusual to hear the plant start up operations at 3 AM (so much for sleeping with windows open) O Traffic. While the USR included a long acceleration lane to the west, no one considered that these trucks would be under full and heavy acceleration the whole times And they estimated 2000 trips a days Also consider that an I-3 zoning carries a myriad of uses and should this property be sold or transferred anytime in the future the new occupant could use the land for any one or more of the allowed uses, including organic composting as an example. I have researched the Weld County Zoning maps, I can find no instance of I-3 in juxtaposition of a residential development If I missed it, please provide the coordinates where I may find it. I have no training or skills in planning. However, I suspect that one of the cornerstones of planning is common sense. Common sense begs the question given the history on this property and the overall opposition to the current use, the court decisions have clearly stated that this use is NOT compatible with our residential development, it is clear that this application should be denied Also, in my research I have learned that often a compromise is made in these cases utilizing a "buffer zone" MMM implemented a buffer zone in their initial USR application. I state the following in the firmest way possible The current buffer zone, berms etc. are sorely inadequate and cannot be enlarged. They are simply insufficient and do not reduce the disturbances to our properties to even a tolerable level. I cannot see how this can be a remedy now or with any future uses Additionally, in viewing the Weld County Zoning maps, it is clear that the surrounding area and properties are zoned Agriculture, some have existing USR use but nowhere can I find an 1-3 On could easily conclude the should this application be approved it could easily be considered spot rezoning and will not hold up in the courts. Allowing this property to be zoned I-3 will inevitably create a "domino effect" allowing the surrounding agricultural lands to also be zoned industrial based on precedent Is that consistent with the overall land use plan? This application makes no mention of asphalt or concrete manufacturing. One development that has not come to fruition yet is the construction of the planned asphalt plant. However, if the application is approved, it would not be long before my neighbors and I would be smelling asphalt all day long, both from the production process and from the trucks hauling product to job sites Yes, an asphalt plant has imposed odor control requirements to meet, however, the transloading process of hot asphalt'into delivery trucks and the trucks themselves are open air operations and no odor control is available for this part of the operation Certainly, we have all followed an asphalt truck down road Need I remind you of the unpleasantness of that? If you are still with me at this point, thank you and one final thought. I and 9 my neighbors also have land use rights. I have the right to enjoy my property, to be outside and socialize with my neighbors for gathering as we often do, without the intrusions that the heaviest possible industrial use of I-3 zoning bring. brin . As I write this, a train unloading operation is underway at the property. . While I am p indoors and have no visual of the train, I know what is transpiring by vibrations that P 9 tat times have caused items to fall in my home and by the clanging and banging of RR car g 9 9 9 couplers. My wife thought it was thunder! In fairness to this community, please deny this application. I request this letter to be entered into the official public record. Since ely, Jim Piraino Atachment I Brownstein Hyatt I Farber Sch reck December 21, 2015 VIA ELECTRONIC AND REGULAR MAIL Bruce Barker Weld County Attorney 915 10th St P. O Box 758 Greeley, CO 80632 DEC 2 8 2015 Carolynne C. White Attorney at Law 303.223.1197 tel 303.223.0997 fax cwhite@bhfs.com RE_ Weld LV, LLC & Gerrard Investments, LLC C/O Martin Marietta (USR15-0027), Acceptance of Risk, Development Processes P Dear Bruce: As we have discussed, Martin Marietta Materials ("Martin Marietta") desires to continue to submit and process development approvals related to its asphalt plant, concrete plant and aggregate materials operation ("the Project") located off of County Road �, 13, south of State Highway 34 (the Property"), approved by the County Commissioners on September 15, 2015, and challenged by opponents in the above captioned litigation. Based on our discussion of December 11, 2015, the County agrees that it can and will continue to review, process, and approve the various components of the Project according to the County's normal process and Code, so long as Martin Marietta acknowledges that such continued action is at its own risk. Martin Marietta acknowledges that, in the event the litigation results in an invalidation of the approval of its Use by Special9 p Review ("USR") permit for the Project, that it may have to cease activity, or remove improvements that have been installed pursuant to approved permits. As was presented at the public hearing, however, the Project is critical to the development of northern Colorado and Martin Marietta's customers. Ass h p such, Martin Marietta nonetheless wishes to continue to pursue and implement the Project at the fastest reasonable pace. We thank you for your and the County's continued cooperation in this matter. Please let me know if you have questions or if we can provide further information. irterely. IN -.1 fw \\_ cz, N. •• CarolynneZ. White 016276100331296061 1 bhts.com r 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 mon 303.223,1100 Brownstein Hyatt Farber Sehreck, LIP From: To: Cc: Subject: Date: Nancy Angela Snyder Nancy Suppes MMM rezoning Case Number COZ20-0004 Thursday, May 7, 2020 10:41:51 AM EXHIBIT 3 14 Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. I am respectfully requesting that the Martin Marietta Materials (aka Rock & Rail) application to rezone their property to Heavy Industrial, 1-3 be DENIED. As a resident of Indianhead Estates, and in direct site of this proposed asphalt plant, there is NO compatibility with this area for this type of industrial site. We are already experiencing noise, dust, and traffic from the operation of the rail loop and concrete manufacturing plant. And the arrival of the trains in the middle of the night disrupting sleep has already begun. It's hard to imagine what kind of lifestyle we'll have once the smells of an asphalt plant begin. Would you want your home to be next door to this type of industry? Please DENY this spot zoning from agricultural to 1-3 use. Sincerely, Nancy Suppes 6801 Commanche Ct. Johnstown, CO 80534 Sent from Mail for Windows 10 EXHIBIT 15 a Leonard L Leinweber 27823 Blackfoot Road Johnstown, CO 80534 May 4, 2020 970-412-2906 Weld County Planning Commission: IT 0 7 2020 GhtELEY 0i 1-tCE It has come to my attention that Rock & Rail (AKA Martin Marietta) has made an application for rezoning of their property to 1-3. It is my understanding that this would open the door to anv. heavy industrial business, as well as, the proposed asphalt plant to which I am strongly opposed. This type of activity does not belong in a residential neighborhood and would be devastating to our quality of life and property values. As it stands, Rock & Rail has already vastly increased noise, traffic, and air pollution. Thank you for your attention to this matter and would very much appreciate your rejection for re -zoning to 1-3. Sincerely, gterntck de° Leonard L. Leinweber • May 4, 2020 Weld County Dept. of Planning Services 1555 N. 17th Ave. Greeley, CO 80631 EXHIBIT 16 RE: Martin Marietta Materials (AKA Rock & Rail) Application for Rezoning to Industrial -3 Case Number: COZ20-0004 Dear Weld County Planning: This letter pertains to the rezoning request to Industrial -3 from Martin Marietta Materials ( AKA Rock & Rail) for their property located on County Rd 13 in Weld County. As residents of neighboring Indianhead Estates we are extremely opposed to this request! We are already subject to the havoc MMM has caused to our neighborhood by Weld County allowing them to come into our immediate area. If this rezoning request is approved by Weld County Planning this will allow MMM to continue to assault our neighborhood and the surrounding residents and do whatever they wish to disrupt our health and well being, both physically, mentally and financially, and we are helpless to do anything about it! There are "strong" implications that MV MM intends to put an asphalt plant on the site. Also, implications of other "undesirable" plans if the rezoning request to Industrial -3 is approved. The toxic smell emitted from an asphalt plant would be harmful to the air quality and be harmful to our health, especially those with respiratory conditions. This added to the dust already coming from the plant! Any additional industrial activity would bring more truck and train traffic. We are already being subjected to noise caused by the plant from the trains (which have be seen arriving between 12:45 AM and 5:30 AM), leading to a loss of sleep to residents. We are constantly bombarded by truck traffic coming in and out of the plant. The continual noise caused by the loud trucks is deafening. Lastly, we are very concerned about our property values. If MMM is allowed to do whatever they choose, this will affect each and every one of us! We are all citizens of Weld County and our voices should be heard by those we voted into county government positions. We urge you to VOTE NO !! Respectfully, William and Kathleen Quam 6830 Lakota Ct Johnstown, CO 80534 siL(1,6,O is V R I U bbies- • T3311 Powis liestn forwarded message From: willum pown :stwopigiclou4 cone Oats: May S. 2020 At I $5 Sa PM MDT To: um da4weldgos um Subject Change .f toning can NCOZi0-100s MS Angela Snyder My wife and I live at 27601 Hopi Trail Johnstown Co 10534-11220 We are lo;ated in Indianhead Fitates Subdivision about itx] feet in back of the cement procaunt yard of Martin \4uicua \lateruic aka Rock and Rail By allowing them r hiring diange to heavy industrial 1-3 would be A disservice to ow community and neighbors \L\i came in set up its business under . ontcst to disallow a non agriculture type business in zone When that came under intense liugauan the sold the company :o Rock and Rail a railroad to cnme undo federal laws and rules to circumvent colorado county and state laws Now they trying to go back and use state and county laws to again bypass Isugatsnn Thn seek to put in an asphalt plant, and possibiv other toxic hazards to people and the atyiroiuuan ,ks weld county stated in the postcard seat out I am writing out objections My wife has ilumaous health issues Asthma, 1 sigh RP I have stage 4 Non I lodgkes 1.smphoina and several immune systan disordcis We moved to lise out our lives in A clean And safe environment When the wind blows we get all types of anent Just Aggregate dust that Lovas anything Icfl out. from the existing caninit plant . who mows from an asphalt plant would bring Large Companies should not be allowed to run roughshod ova people and change zoning because the% has unlimited resources William and Shaun flown 303-I$4.604I EXHIBIT 18 .0 May 2, 2020 Weld County Department of Planning Services RE: Rezoning Request Case COZ20-0004 Planner Angela Synder 1555 N 17th Ave Greeley. CO 80631 Dear County Planners, L;_ -1 \L As a neighbor directly impacted by the decision of the rezoning, i strongly oppose the rezoning of Gerrand Investments, LLC from Ag Special Purpose to a full Industrial Heavy zoning Firstly, the current zoning use was granted within the last 5 years and where the occupant agreed to abide by those zoning restrictions. Now, because the occupant is not able to comply by the zoning restrictions, the occupant is coming back for a more lenient zoning. How can this be seen as anything but a direct challenge to commission's authority? By all means, please make your previous decision mean something and stand up for the residents of this county that elected the commissioning body! Secondly, by choice and with an understanding of the restrictions that are in place, i bought a vacant lot and built a new home on the property. Changing the zoning to where essentially Gerrand Investments, LLC can use the property for virtually any Industrial use if the rezoning is permitted, will devalue the neighborhood property value and be a complete injustice to the entire neighborhood! Sincerely yours, Vto-cvN on Nisly 27665 Hopi Trail Loveland, CO 80534 tSib-k,t Rezone Request Case number: COZ20-0004 May 4, 2020 Weld County Department of Planning Services 1555 North 17th Avenue Greeley)Colorado 80631 Dear Weld County Commissioners: EXHIBIT a 19 Tom and Diane Lord 6820 Commanche Ct. Johnstown, Colorado 80534 gra_rniurn N/I l c ( 2020 V',4_ -. t1 LULI!i j ( ITh 111 's GI:LLI_E-Y OFJ �fl "IiCilI We are protesting Martin Marietta Materials (aka Rock & Rail) request to rezone their property to Industrial -3. MMM has already lost a challenge in the State Court of Appeals and apparently think that they will lose the current lawsuit in the Federal District Court. If this change of zoning is approved, MMM will add an asphalt plant, and store thousands of gallons of oil on their site. This will be allowed to happen without public notice or input. In the past MMM was granted a Use by Special Review on Agricultural Land by the Weld County Commissioners. We attended several public input meetings to express our concerns related to our health, safety, and general welfare of the citizens of Weld County. Many of our questions were left unanswered, and most all of the promises that MMM made were not kept. These include sound, dust, railroad delivery times, hours of operation, hazardous waste, and plant emissions. Common sense lost out to economic development and the need to fuel ill planned growth with asphalt and concrete. After all Mr. Hagerman stated that "there would be millions of dollars in tax money." It appears that at the time the risk to the citizen's health, welfare, and safety was worth the risk. It is well documented that asphalt/concrete plants produce hazardous waste which include formaldehyde, hexane, phenol, toluene, polycyclic organic matter, mercury and lead. The immediate health concerns include throat/eye irritation, high blood pressure, cough, and headaches. Long term exposure includes cancer, central nervous system problems, and liver damage. When the wind blows from the west, Martin Marietta dust blows into our neighborhood. When the wind blows from the east It blows hazardous dust over the Northern Colorado Rehabilitation Hospital. Since MMM began producing concrete they have not kept their promise to control the dust and noise created by their operation. We have many other concerns such as producing asphalt is highly flammable and creates a terrible odor. Building berms around the concrete plant has and will not protect the people living here. We plan to attend the public hearing and speak to all the issues regarding the complete lack of transparency and compatibility that we've had to live with as citizens of Weld County. Sincerely, terari :47 Tom and Diane Cord &L*4/ Qcc4 Dr at itn war � a jam afar?Cadre :tat CO is 020 00," deit 'vrtevel be.t.43 t� C � n tin NAY 0 n 2fl20 Yrc$J Cotri1 y I lriwi ;c GREELEY OFFICE ��`�+-�;� (owl ‘eara,t aGee es �c jaw cr' mirvi her eftz age, a proe140 to G U I pe/ Cl- coAcArte t e24,44.64 - jar Lestientt stiogeaci and L),,,,,to7rIthc 44n:ben oterei / As cebriewl ite; 6 4c; -al igiser eats ew c...1,eitd: •?, et, *IA (/ J}Oaret 2 z�1P2 a 4-in.Czacieyl y1ASLfr �di�a EXHIBIT �CZ/�1L ! a, w 20 Rrt.41it ?ettl-m)etotzi C -U -ta,o.. M /'1 frl Mt) th "stet ilanslie wu2 t-mmwt..4%wi, 6atii d 2 /i�a6Q.ta� � o�c�'C. f� �4CC��ty.; bGv1.a��v I 4 J 7if6o ilacAAoaal s cuU! .-,4am,p't ,Lts&N.i. etc Lama( .I "Slat A. dw..$-tcx. 4 9g4-6 rce' , Ca2 4c1.21C W442 f of a22 .Jia.w�o �o� Q ncTe 2um1,1L:‘6% o'i- v -edte oa, s7c,/e cid tie s ,,...h d 9341,141“./ Lot, % -6lave `,+.�swpM,tose4 ix.citioPC pAyast-in 54 • • . lao' tom2. o✓774c).vc✓ 4 kakAsinetigitchi aSVTY .rizaia sic/ mc itigt yeiviii 7O i Vo Mat il.cf.its-r tG,;�, O-crn.V. i /tQ�ad flu #1, Loruvogi �/ez u. 20". t r‘a a.k.a.?... -fileankgam; DON ALSO cotal 02 77a 7 Hop' mit aohnnt, etA.1 n, Car 614- Q o 8a531 Phone y'7o -4gl -.DM EXHIBIT D 2 ?1 Rezoning request Case Number CO720-0004 May 3, 2020 Weld County Department of Planning Services 1555 N.17th Avenue Greeley Colorado 80631 Dear Weld County Commissioners: Dan and Holly Keck 27847 Arikaree Road Johnstown, Co. 80534 7101 44014"1 r\ , 7. rti'?.y : n C; caLpEA!- r� aii a �r I 11 c) ,.11C111l i.:IIt fler We are writing this letter to voice our opposition to the request to rezone the Martin Marietta (aka Rock &Rail) to Industrial -3, the worst form of rezoning. If this is approved other uses including oil and gas storage and the addition of an asphalt plant will happen, all without public notice or input. After attending many meetings regarding railroad access, road congestion, asphalt/concrete, compatibility, health and safety, right to farm, noise, and pollution, these issues continue to affect our daily lives. The promises made at those meetings were never kept. The problems of allowing a dirty heavy industry next to an established neighborhood of 40 years is not compatible. We know that you have to make difficult decisions, but we will remind you that your most important duty is to protect and promote the health, safety, and general welfare of all the residents of Weld County. Please listen to the people that have to live next to an industry that should never have been allowed in the first place. Sincerely, ICY` 4cQp- C- Dan and Hour Keck May 07, 2020 From: John Cummings 26700 Weld County Road 13 Johnstown, CO 80534 To: Weld County Commissioners c/o Angela Snyder, Planner Weld County Department of Planning Services 1555 North 17th Avenue Greeley, CO 80631 RE: Case COZ20-0004 FOR PUBLIC RECORD Dear Commissioners: EXHIBIT 1 22 I am in COMPLETE OPPOSITION to Case COZ20-0004 the proposed zoning change from Agricultural (A) District to Heavy Industrial I-3 proposed by Rock & Rail Railroad, LLC. The zoning change proposal is a incompatible development for our community. Industrial sites belong in a location that will not impact our quality of life due to traffic, noise, odor, safety, pollutants and contaminates. The community doesn't want the possibility of Heavy I-3 zoned facilities such as Asphalt Plants, Junk Yards, Hazardous Product Transloading, Petroleum Refineries or Oil and Gas Storage Facility. There are two Industrial Zone areas that are in Weld County within 5 to 7 miles of this proposed site that would meet Rock & Rail Railroad criteria. WHY PUT THIS HEAVY I-3 ZONING AMONG COUNTY RESIDENTS, COMMUNITIES AND SMALL ESTABLISHED NON -INTRUSIVE BUSINESSES. The primary purpose of zoning is to segregate INCOMPATIBLE uses like the proposed HEAVY I-3 INDUSTRIAL ZONING from an already pre-existing established WEDDING VENUE (Rockin S Ranch). As cited in Weld Counties Zoning Guide....ZONING IS USED TO PREVENT INCOMPATIBLE NEW DEVELOPMENT FROM INTERFERING WITH EXISTING RESIDENTS OR BUSINESSES AND TO PRESERVE THE "CHARACTER" OF A COMMUNITY. WHAT WE CANNOT SEE WILL HURT US. WHY SHOULD WE BE LIVING WITH DANGEROUS EMISSIONS IN OUR NEIGHBORHOOD? HEAVY I-3 ZONING brings a whole host of concerns, whether an asphalt plant, refinery, composting facility or junk yard, these facilities will have multiple sources of emissions. Emissions such as, benzene, formaldehyde, ethylbenzene, polycyclic aromatic hydrocarbons, hexane, toluene, xylene, silica and particle matter 2.5-10 all can have harmful effects on human health and be detrimental to the environment. These compounds can adversely influence either the health of the workers on these sites or of those who live in the surrounding communities. We cannot rely solely on state and federal agencies to protect our health, so these Heavy Industrial I-3 sites need to be located away from residents, communities and businesses What we do not know for sure are the effects of long-term exposure to these chemicals and whether they will accumulate in individuals living near this facility According to the US EPA roughly one out of every three people in the United States is at a higher risk of experiencing PM2 s related health effects One group at high risk is active children because they often spend a lot of time playing outdoors and their bodies are still developing and the elderly population People of all ages who are active outdoors are at increased risk because PM25 penetrates deeper into the parts of the lungs and blood streams unfiltered, causing permanent DNA mutations, heart attacks and premature death A few additional comments on Rock & Rail /Gerrard Investments, LLC Questionnaire 1 They should include in their questionnaire that there is a legal action against Rock and Rail Railroad that the current operation is in violation of the Interstate Commerce Commission Termination Act, pending court date late Fall 2020 2 The proposed change of zone IS NOT compatible with the surrounding land uses There is NO industrial zoning for at least 2 miles to the west in Larimer County and there are NO USR's in Weld County near the proposed site that would be considered even close to being industrial Sites cited in the questionnaire are for the most part construction parking lots 3 Heavy I-3 Zoning will increase traffic, noise levels, dust and chemical emissions, pollution and effect community safety and change the aesthetics of this area for ever In this zoning case the Weld County Commissioners should apply the "Precautionary Principle" for the well-being and safety of their residents and stop this "spot zoning" from taking place Thank you, John Cummings IRELAND STAPLETON VIA E-MAIL Bruce T. Barker, Esq. Weld County Attorney P.O. Box 758 1 1 5 0 "O" Street Greeley, CO 80632 E-mail: bbarker a weldgov.com EXHIBIT 23 May 8, 2020 Re: Weld County Rezoning Application COZ20-0004 Dear Mr. Barker: MARK E. LACIS ATTORNEY AT LAW 303.628.3622 (direct) mlacis@irelandstapleton.com This firm represents the Indianhead West Homeowners Association, Inc., Rockin S Ranch LLC, John Cummings, David Kisker, Gary Oplinger, Wolfgang Dirks, and James Piraino (the "Neighborhood Defendants"). I write regarding the Neighborhood Defendants' opposition to Weld County Rezoning Application COZ20-0004 (the "Rezoning Application") and to raise several critical legal issues that the County must consider. As you know, the property that is the subject of the Rezoning Application (the "Property") was previously the subject of a USR application (U5R15-0027) which was overturned by the Colorado Court of Appeals on November 22, 2017 (the "State Lawsuit"),1 and then abandoned by the applicant, Martin Marietta Materials, Inc. ("MMM"). Thereafter, Rock & Rail LLC (the wholly -owned subsidiary of MMM and MMM's successor in interest to the Property) commenced a separate lawsuit in the United States District Court for the District of Colorado against the Neighborhood Defendants at Case No. 18-cv-02453-RBJ (the "Federal Lawsuit") in which Rock & Rail argues that the Property is not subject to local land use laws because they are allegedly preempted by the Interstate Commerce Commission Termination Act of 1995 ("ICCTA"). That issue is unresolved, and the Federal Lawsuit is scheduled for trial starting on August 24, 2020. The Rezoning Application is a brazen attempt to negate the Court of Appeals' decision in the State Lawsuit while simultaneously seeking to avoid the Federal Court's impending resolution of Rock & Rail's ICCTA claim. Beyond legalizing an objectively illegal land use, if approved, the Rezoning Application will allow Rock & Rail to engage in any number of extremely intensive 1 A copy of the Court of Appeals' Opinion reversing the County's approval of MMM's USR application as part of the State Lawsuit is attached hereto as Exhibit A. IRELAND STAPLETON PRYOR & PASCOE, PC 117 I1TH STREET SUITE 2800. DENVER CO 80202 TEL 303 623.2700 FAX 303.623.2062 IRELANOSTAPLETON.COM Bruce T Barker, Esq May 8, 2020 Page 2 industrial land uses —all of which are objectively incompatible with surrounding residential and agricultural land uses Accordingly, the Rezoning Application is a transparent attempt at illegal spot zoning Rock & Rail's unsupported assertions regarding the pending claims in the Federal Lawsuit do not change this reality and cannot be used as a legitimate basis to rush through the Rezoning Application in advance of trial in the Federal Lawsuit Rock & Rail's response to the County's rezoning questionnaire disingenuously claims that "[t]h'e subject property is operated in conformance with all noise limitations imposed by state and local governments that are not otherwise preempted by ICCTA " Because Rock & Rail's arguments regarding the ICCTA are currently unresolved, this claim is meaningless and Rock & Rail has not provided the County with any competent evidence that its existing industrial use complies with state and local noise requirements Unless and until the Federal Lawsuit is fully resolved (including any appeals), the County cannot rely upon the ICCTA in its consideration of the Rezoning Application Unfortunately, the County appears poised to do just the opposite Despite the unresolved status of the Federal Lawsuit, the County's planning file for the Rezoning Application incorrectly states that the Property is not currently in violation of Weld County zoning law This is false Irrespective of whether the ICCTA preempts Weld County zoning law, there is no question that the industrial improvements at the Property have been illegal and in violation of the Property's zoning designation within the A (Agricultural) zone since the Court of Appeals' invalidation of MMM's USR This was confirmed by the County during its Rule 30(b)(6) deposition in the Federal Lawsuit 2 The fact that Rock & Rail is currently operating an illegal industrial operation at the Property cannot be used to justify the Rezoning Application As you are aware, at the time that MMM constructed the industrial improvements at the Property, MMM fully accepted the risk that it might later be required to remove those improvements if they were found to be unlawful in connection with the State Lawsuit 3 The County cannot use the unlawful status of those improvements as justification for approving the Rezoning Application Even more importantly, the Colorado Court of Appeals already confirmed in the State Lawsuit that the County has itself determined that any land use at the Property will only be compatible with surrounding land uses if the noise generated at the Property does not exceed the residential noise standard at all adjacent residential property lines Because the Rezoning Application would go far beyond MMM's failed USR application and allow for any number of heavy industrial uses anywhere on the Property as a matter of right, it is impossible for Rock & Rail to show that the Rezoning Application is compatible with surrounding uses The Rezoning Application must be denied as a matter of this settled law 2 Relevant excerpts of the Rule 30(b)(6) Deposition of Weld County taken in connection with the Federal Lawsuit are attached hereto as Exhibit B 3 A copy of the letter in which MMM fully accepted the risk of proceeding to construct the industrial improvements at the Property while the State Lawsuit was still pending is attached hereto as Exhibit C IRELAND STAPLETON PRYOR & PASCOE, PC 3248587 2 Bruce T Barker, Esq May 8, 2020 Page 3 If the County nevertheless moves forward with its consideration of the Rezoning Application, we have serious concerns regarding the Board of County Commissioners' (the "BOCC") ability to impartially consider the Rezoning Application consistent with the Neighborhood Defendants' (and any other opponents') fundamental rights to due process of law The BOCC was closely aligned with MMM as part of the State Lawsuit and zealously defended MMM's unsuccessful attempt to obtain approval for industrial activities at the Property The BOCC went so far as to enter into a joint defense agreement with MMM whereby the BOCC and MMM "have shared, will share, and intend to share privileged communications, documents, legal strategies and theories, work product, confidences and other information for the purpose of advancing the Parties' common Interests "4 The Rezoning Application now seeks to achieve what MMM and the BOCC failed to accomplish through the State Lawsuit and that joint defense agreement Under these circumstances, it may well be impossible for the BOCC to now sit in impartial judgment of the Rezoning Application At a minimum, all members of the BOCC must affirmatively disclose all actual or potential conflicts of interest with respect to the Rezoning Application and all members of the BOCC who were also members of the BOCC while the joint defense agreement with MMM was in place must be recused and/or disqualified from the BOCC's quasi-judicial consideration of the Rezoning Application Please confirm that the County will take these actions and please let us know what other safeguards the County intends to put in place to ensure that all parties will be guaranteed due process of law with respect to the Rezoning Application As this property has already been the subject of almost 5 years of intense litigation, the Neighborhood Defendants respectfully request a formal opportunity to participate in any and all public hearings associated with the Rezoning Application Please include this letter and all of the attached exhibits in the administrative land use file for rezoning application COZ20-0004 Please contact me with any questions or if there is anything that you would like to discuss Sincerely, Mark Lacis cc Tom Parko Jr (tparko@weldgov com) Angela Snyder (asnyder@weldgov com) Bob Choate (bchoate@weldgov corn) James R Silvestro 4 A copy of the "Common Interest, Limited Information Sharing, and Confidentiality Agreement" entered into by MMM and the BOCC is attached hereto as Exhibit D IRELAND STAPLETON PRYOR & PASCOE PC 3248587 2 17CA0463 Cummings v Weld Cty Bd of Commrs 11-22-2017 COLORADO COURT OF APPEALS DATE FILED: November 22, 2017 CASE NUMBER: 2017CA463 Court of Appeals No. 17CA0463 Weld County District Court No. 15CV30776 Honorable Todd L. Taylor, Judge Motherlove Herbal Company, a Colorado Certified B Corporation; Indianhead West Homeowners Association, Inc., a Colorado nonprofit corporation; Rockin S. Ranch LLC, a Colorado limited liability company; John Cummings; David Kisker; Gary Oplinger; Wolfgang Dirks; and James Piraino, Plaintiffs -Appellants, v. Board of County Commissioners of Weld County, Colorado; Chair Julie Cozad; Pro-Tem Steve Moreno; Sean Conway; Michael Freeman; Barbara Kirkmeyer; Martin Marietta Materials, Inc., a North Carolina corporation; and Gerrard Investments, LLC, a Colorado limited liability company, Defendants -Appellees. JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS Division VI Opinion by JUDGE TERRY Casebolt* and Carparelli*, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 22, 2017 Ireland Stapleton Pryor 86 Pascoe, PC, Mark E. Lacis, James R. Silvestro, Denver, Colorado, for Plaintiffs -Appellants Bruce T. Barker, County Attorney, Greeley, Colorado, for Defendants -Appellees Board of County Commissioners of Weld County, Colorado; Chair Julie Cozad; Pro-Tem Steve Moreno; Sean Conway; Michael Freeman; and Barbara Kirkmeyer EXHIBIT A Brownstein Hyatt Farber Schreck, LLP, Wayne F Forman, Mark J Mathews, Julia E Rhine, Denver, Colorado, for Defendant -Appellee Martin Marietta Materials, Inc , a North Carolina corporation Witwer, Oldenburg, Barry 8s Groom, LLP, Patrick M Groom, Kent A Naughton, Greeley, Colorado, for Defendant -Appellee Gerrard Investments, LLC, a Colorado limited liability company *Sitting by assignment of the Chief Justice under provisions of Colo Const art VI, § 5(3), and § 24-51-1105, C R S 2017 1 1 In this C R C P 106(a)(4) action, above -captioned plaintiffs seek judicial review of the decision of defendant Weld County Board of County Commissioners (the board) to approve a use by special review in favor of defendants Martin Marietta Materials, Inc., and Gerrard Investments, LLC (defendant corporations). We reverse and remand to the district court for entry of judgment in favor of plaintiffs. I. Background `1 2 Defendant corporations applied for a use by special review to construct and operate an asphalt and concrete production, processing, and railroad transloading facility (the proposed use) on a 132 -acre agriculturally zoned parcel (the proposed site). The facility would involve the construction of multiple new buildings, including an asphalt plant, a ready -mix concrete plant, a 14,000 square -foot office building, and additional supporting elements such as an electrical substation, multiple storage tanks, and a railroad loop that can accommodate up to 121 train cars for the transloading of materials. 1 If 3 Plaintiffs are a diverse group made up of homeowners in a neighboring residential development, an organic farm, and a proposed agriculturally themed event space. 91 4 Following a lengthy hearing, the board issued a resolution approving the use by special review. Plaintiffs then sought review in the district court under C.R.C.P. 106(a)(4), arguing that the board violated the Weld County Code (W C.C.) and abused its discretion in approving the proposed use. After finding that the board's initial resolution did not include sufficient findings of fact or explanations as to how the use by special review would meet the relevant portions of the code, the district court remanded the case to the board to make further factual findings necessary for judicial review. ef 5 On remand, the board issued a second, more detailed resolution approving the proposed use, and the case was returned to the district court That court affirmed the board's decision in a lengthy and detailed order II. Record Support for Approval cg 6 Plaintiffs contend that the administrative record lacks competent evidence supporting the board's decision to grant 2 defendant corporations a use by special review to carry out the proposed use in an agricultural zone. We agree and reverse the district court's judgment affirming the board's resolution A. Standard of Review ¶ 7 C R C P. 106(a)(4) requires us to review a governmental body's decision to determine whether that body abused its discretion. A governmental body such as the board abuses its discretion if it misapplies or misconstrues the applicable law, or if "the decision under review is not reasonably supported by competent evidence in the record " Freedom Colo Info , Inc v El Paso Cty Sheriff's Dep't, 196 P.3d 892, 899-900 (Colo 2008). "Lack of competent evidence occurs when the administrative decision is so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority " Id at 900 ¶ 8 We interpret a county code de novo, applying the ordinary rules of statutory construction. Alpenhof, LLC v City of Ouray, 2013 COA 9, ¶ 10. However, we may defer to a governmental body's interpretation of a code, provided that it is reasonable and consistent with the drafters' overall intent Id ; see Whitelaw v. Denver City Council, 2017 COA 47, ¶¶ 8, 57 3 ¶ 9 Because an appellate court sits in the same position as the district court when reviewing a governmental body's decision under C.R.C.P. 106(a)(4), our review of the district court's decision is de novo. Whitelaw, ¶ 8 (citing Alward v Golder, 148 P.3d 424, 428 (Colo. App. 2006)). This means that we show no deference to the district court's conclusions and review the board's decision afresh See Nixon v City & Cty of Denver, 2014 COA 172, ¶ 9. B. Compatibility with Surrounding Uses ¶ 10 Plaintiffs first argue that there was no competent evidence in the record supporting the board's finding that the proposed use would be compatible with the existing surrounding land uses. We agree because the board's conclusion that the project would be compatible relied on an unsupported conclusion that the proposed use would mitigate noise to a residential level. 1. Relevant Portion of the Weld County Code ¶ 11 W C.C section 23-2-230.B provides that the board shall only approve the request for a use by special review if "the applicant has met the standards or conditions of this Subsection B." Section 23-2-230 B.3 states that the applicant shall demonstrate "[t]hat the 4 USES which would be permitted will be compatible with the existing surrounding land USES " ¶ 12 In the amended resolution, the board determined that the proposed use would be compatible with the existing surrounding uses because the conditions of approval and development standards issued by the board would "not only ensure, but enhance the compatibility with existing surrounding land uses by mitigating any issues," such as traffic, noise, dust, and visual impact. 2 Discussion ef 13 Plaintiffs argue that given the characteristics of the proposed use and surrounding land uses, there was no competent evidence in the record supporting compatibility. We conclude that the record lacks competent evidence to support the board's finding that the proposed use will comply with applicable noise standards as part of a mitigation strategy under the conditions of approval and development standards. ¶ 14 The Weld County Comprehensive Plan, which provides the "foundation for land use policy in the County," W C C § 22-1-120, seeks to allow industrial uses within "agricultural areas when the impact to surrounding properties is minimal or mitigated." W C.C 5 § 22-2-20.B 2. The W.C C also provides that "[w]here reasonable methods or techniques are available to mitigate any negative impacts which could be generated by the proposed USE upon the surrounding area, the Board of County Commissioners may condition the decision to approve the Special Review Permit upon implementation of such methods or techniques." W.C C § 23-2-230 C A plain reading of the code indicates that conditions of approval or development standards placed on a use by special review may be considered in an evaluation of compatibility with the surrounding uses. ¶ 15 In finding in favor of compatibility, the board concluded that as part of the development standards, "noise has been mitigated to be at the residential standard of 55/50 dB(A)" even for the closest homes to the proposed site. This conclusion appears to correspond with the board's adoption of development standard twenty-four, which states "This facility shall adhere to the maximum permissible noise levels allowed in the Residential Zone as delineated in Section 14-9-30 of the Weld County Code as measured at the property line of the adjacent residential lots " (Emphasis added.) The corresponding sections of the code limit 6 maximum residential noise to 55 dB(A) during the day and 50 dB(A) at night. W.C.C. §§ 14-9-30, -40 116 The only evidence contained in the record on this issue indicates that the proposed use will not meet the residential noise standards "at the property line of the adjacent residential lots," as required by development standard twenty-four and as relied on by the board in making the compatibility decision. One data set included in defendant corporations' own noise analysis projects that the proposed use will exceed the 50 and 55 dB(A) residential noise limits at many of the residential property lines, even when mitigation efforts are in place. Defendants point to a separate data set, which projects compliance with the residential limits at the noise receiver locations. But their argument fails to acknowledge that development standard twenty-four — adopted by the board and relied on as evidence of mitigation in the compatibility analysis — requires that noise be measured at the residential property lines, and not at the receiver locations, which are located farther back at the actual residences. ¶i 17 Therefore, contrary to the board's finding that "noise has been mitigated to be at the residential standard of 55/50 dB(A)," the only 7 evidence in the record indicates that the proposed use will not meet the residential noise standard at the property lines, as required by development standard twenty-four. We therefore conclude that the board abused its discretion because its finding of compatibility relied on a conclusion of noise mitigation that is unsupported by the record 9¶ 18 Defendant corporations argue that the noise analysis contained in the record is based on an unrealistic, worst -case assumption that all sources of noise coming from the proposed use would be operating simultaneously, and that they need only comply with the noise requirements once the plant is actually operating. But W C.C. section 23-2-230.B places the burden on the applicant to demonstrate that the proposed use "has met" the conditions of the subsection Therefore, it was up to defendant corporations to demonstrate, as'a condition of the board's approval, that the proposed use will be compatible with the existing surrounding uses by placing supporting information in the administrative record. There is currently insufficient support in the record for us to conclude that the proposed use, when running under normal operations, would comply with development standard twenty-four. 8 If 19 We therefore reverse the district court's judgment and remand to the district court for the entry of judgment in favor of plaintiffs. III Plaintiffs' Other Contentions (if 20 Because the board's decision must be overturned, we decline to address plaintiffs' other contentions that the board improperly considered non -adjacent land uses in its compatibility analysis, that there was not competent evidence demonstrating a diligent effort to conserve prime farmland, and that the board engaged in illegal "spot zoning." We also decline to address plaintiffs' contention that the board and defendant corporations' attorneys engaged in improper ex parte communications. IV. Conclusion If 21 The judgment is reversed and the case is remanded to the district court for the entry of judgment in favor of plaintiffs. JUDGE CASEBOLT and JUDGE CARPARELLI concur. 9 Otnurl IIf Appwrla STATE OF COLORADO 2 East 14th Avenue Denver, CO 80203 (720) 625-5150 PAULINE BROCK CLERK OF THE COURT NOTICE CONCERNING ISSUANCE OF THE MANDATE Pursuant to C.A.R. 41(b), the mandate of the Court of Appeals may issue forty-three days after entry of the judgment. In worker's compensation and unemployment insurance cases, the mandate of the Court of Appeals may issue thirty-one days after entry of the judgment. Pursuant to C.A.R. 3.4(m), the mandate of the Court of Appeals may issue twenty-nine days after the entry of the judgment in appeals from proceedings in dependency or neglect. Filing of a Petition for Rehearing, within the time permitted by C.A.R. 40, will stay the mandate until the court has ruled on the petition. Filing a Petition for Writ of Certiorari with the Supreme Court, within the time permitted by C.A.R. 52(b), will also stay the mandate until the Supreme Court has ruled on the Petition. BY THE COURT: Alan M. Loeb Chief Judge DATED: October 19, 2017 Notice to self -represented parties: The Colorado Bar Association provides free volunteer attorneys in a small number of appellate cases. If you are representing yourself and meet the CBA low income qualifications, you may apply to the CBA to see jfyour case may be chosen for a free lawyer. Self -represented parties who are interested should visit the Appellate Pro Bono Program page at http: //www. cba. cobar. org/repository/Access%20to%20Jtrstice/AppelatePr oBono/CBAAppProBonoProg PubliclnfoApp.pdf Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 1 of 8 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 1:18-cv-02453-RBJ DEPOSITION OF THOMAS PARKO November 7, 2019 ROCK & RAIL, LLC, a Colorado limited liability company, Plaintiff/Counterclaim Defendant, v. MOTHERLOVE HERBAL COMPANY, a Colorado corporation; INDIANHEAD WEST HOMEOWNERS ASSOCIATION, INC., a Colorado nonprofit corporation; ROCKIN S. RANCH, LLC, a Colorado limited liability company; JOHN CUMMINGS, an individual; DAVID KISKER, an individual; GARY OPLINGER, an individual; WOLFGANG DIRK, an individual, and JAMES PIRAINO, an individual, Defendants/Counterclaim Plaintiffs. APPEARANCES- OTTEN, JOHNSON, ROBINSON, NEFF & RAGONETTI, P C. By Brian J. Connolly, Esq. Andrew L.W. Peters, Esq. 950 17th Street, Suite 1600 Denver, Colorado 80202 Appearing on behalf of Plaintiff IRELAND STAPLETON PRYOR & PASCOE, P.C. By James R Silvestro, Esq. Mark E Lacis, Esq. 717 17th Street, Suite 2800 Denver, Colorado 80202 Appearing on behalf of Defendants EXHIBIT B Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 2 of 8 AB Court Reporting & Video 1 PROCEEDINGS 2 * * * * 3 THOMAS PARKO, 4 having been first duly sworn to state the whole 5 truth, testified as follows: 6 MR. CONNOLLY: Brian Connolly for 7 Plaintiff Rock & Rail. 8 MR PETERS: Andrew Peters, for 9 Plaintiff Rock & Rail. 10 MR. SILVESTRO: James Silvestro for 11 the Defendants, joined by Mark Lacis, also for the 12 defendants, and joined by the Defendants, David 13 Kisker, Gary Oplinger, and John Cummings. 14 MR. HEGARTY• Matthew Hegarty, 15 appearing on behalf of the Board of County 16 Commissioners of Weld County with, in person, its 17 designee responsive to the 30(b)(6) notice of 18 Plaintiff Rock & Rail. 19 And one preliminary matter. Before 20 the depo started, I did hand counsel -- both sets of 21 counsel -- one copy each of the only two documents 22 the deponent reviewed, the designee reviewed in 23 preparation for today, which is, first, a 24 September 25, 2018, letter from Brownstein Hyatt 25 Faber Schreck, on behalf of Rock & Rail. And the THOMAS PARKO 11/7/2019 4 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 3 of 8 AB Court Reporting & Video 1 MR. HEGARTY: Foundation. 2 A Because that's the direction we 3 received from legal counsel. 4 Q (By Mr. Silvestro) I understand. And 5 I don't want to get into those conversations. 6 MR. SILVESTRO: Do you need a break? 7 (A recess was taken at 12:59 p.m. 8 until 1:12 p.m.) 9 Q (By Mr. Silvestro) Director Parko, you 10 understand you are still under oath? 11 A Yes. 12 Q If you could flip back to Exhibit 9. 13 This is letter from my colleague, Mr. Laces, to the 14 County Attorney Bruce Barker, dated April 23, 2018, 15 correct? 16 A Correct. 17 Q This letter was sent after the State 18 Court of Appeals invalidated the USR, correct'P 19 A Correct. 20 Q It says, in the first paragraph, first 21 sentence, The USR was invalidated by the opinion 22 dated November 22, 2017. Do you agree with that? 23 A As stated in here, yes. 24 Q Are you aware of any other information 25 to contradict the fact that the USR was invalid as THOMAS PARKO 11/7/2019 161 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 4 of 8 AB Court Reporting & Video 1 of that date? 2 A No. 3 Q Is this County aware of any 4 information? 5 A No. 6 Q What did the County do when it 7 received this letter, which I believe would 8 constitute a report of a zoning violation? Let's 9 step back. 10 Does the County consider a letter like 11 this to be a report of a zoning violation? 12 A I'd have to go through and read this 13 here. 14 Q On the second page there is a 15 paragraph that might answer the question more 16 quickly. 17 A Okay. So when you sent this letter to 18 Mr. Barker, you're saying that there is a zoning 19 violation out there and you want the County to take 20 action on it 21 Q Well, what did the County interpret 22 this letter to be? 23 A It's hard to say, because this was 24 addressed to Mr. Barker. What did Mr. Barker 25 respond -- how did he respond? THOMAS PARKO 11/7/2019 162 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 5 of 8 AB Court Reporting & Video 1 Q I don't believe he did. 2 _ In your experience as the planning 3 director, as the representative on behalf of the 4 County, is this similar to other types of zoning 5 violations that the County receives? 6 MR. HEGARTY: Form. 7 A I would say that it's rare that you 8 have an attorney or a law firm sending some type of 9 form of violation to the County. It usually comes 10 from a resident or a citizen 11 Q (By Mr. Silvestro) Regardless, would 12 the County consider this to be a report of a zoning 13 violation? 14 MR. HEGARTY: Form. 15 A Well, I would say that you're alleging 16 that there's a violation here. 17 Q (By Mr. Silvestro) And I'm asking what 18 did the County understand at this point? 19 A I can't speak to that, because this 20 was to Bruce Barker. 21 Q What did the County do when it 22 received this letter? 23 MR. HEGARTY Foundation. 24 A I don't know because -- I don't 25 believe that -- I don't know. Because, again, I'm THOMAS PARKO 11/7/2019 163 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 6 of 8 AB Court Reporting & Video 1 not party to this. 2 Q Did the County follow its typical 3 practice, as you've testified, to investigate a 4 reported violation? 5 MR. HEGARTY: Form, foundation. 6 A I can't speak for Mr. Barker. 7 Q (By Mr. Silvestro) So someone at the 8 County would be able to answer that question? 9 MR. HEGARTY: Foundation. 10 A Yes. 11 Q (By Mr. Silvestro) At this point in 12 time, April 23, 2018, was the facility, as we've all 13 been referring to it, constructed at the property? 14 A Yes. 15 Q At this point in time, April 23, 2018, 16 was that a legal land use? 17 A Well, the USR was invalidated. 18 Q Correct. So was the facility, 19 included rails spur, transloading, concrete 20 manufacturing, and related processing facilities, 21 was that legal use by right at the site? 22 A Under Rock & Rail, yes. 23 Q On April 23, 2018, you testified 24 earlier that the County didn't know about Rock & 25 Rail. So I want to be very specific. On April 23, THOMAS PARKO 11/7/2019 164 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 7 of 8 AB Court Reporting & Video 1 2018, was the facility a legal land use at the site? 2 A It wasn't a valid USR on November 22, 3 2017. 4 Q Was the land use at the facility 5 illegal as of April 23, 2018? 6 MR. HEGARTY: Form. 7 MR. CONNOLLY: Form. 8 A Yes. 9 Q (By Mr. Silvestro) What did the County 10 do about that? 11 A Do -- 12 Q To rectify the fact that a report had 13 been made of an illegal land use, and as you've just 14 testified, the report was legitimate. 15 MR. HEGARTY: Misstates testimony. 16 Go ahead. 17 A Just rephrase that question. 18 MR. SILVESTRO: Can you read that 19 back. 20 (The pending question was read.) 21 MR. HEGARTY Same objection. 22 Go ahead. 23 A I don't believe we did act. 24 Q (By Mr. Silvestro) Why not? 25 A Because we were going off of an THOMAS PARKO 11/7/2019 165 Case 1 18-cv-02453-RBJ Document 80-8 Filed 02/07/20 USDC Colorado Page 8 of 8 AB Court Reporting & Video 1 CERTIFICATE 2 STATE OF COLORADO ) ss 3 CITY AND COUNTY OF DENVER ) 4 5 I, Angela Smith, Professional Reporter and Notary Public for the State of Colorado, do hereby 6 certify that previous to the commencement of the examination, the deponent was duly sworn by me to 7 testify to the truth in relation to the matters in controversy between the said parties. 8 I further certify that this deposition was taken in shorthand by me at the time and place 9 herein set forth; that it was reduced to typewritten form; that the foregoing is a true transcript of the 10 questions asked, testimony given, and proceedings had. 11 I further certify that I am not an attorney nor counsel nor in any way connected with 12 any attorney or counsel for any of the parties to said action or otherwise interested in its event. 13 IN WITNESS WHEREOF, I hereunto affix my signature this 12th day of November 2019. 14 My commission expires January 22, 2023. 15 16 17 18 Angela Smith, Professional Reporter 216 - 16th Street, Suite 600 19 Denver, Colorado 80202 20 21 22 23 24 25 / THOMAS PARKO 11/7/2019 200 Brownstein Hyatt Farber Schreck December 211 2015 VIA ELECTRONIC AND REGULAR MAIL Bruce Barker Weld County Attorney 915 13th St P. O. Box 753 Greeley, CO 80632 2 8 2075 DATE FILED: May 2, 2018 1:10 PM FILING ID: CC49691888B58 CASE NUMBEItgai,AceVd.Wite Attorney at Law 303.223.1197 tel 303.223.0997 fax cwhite@bhfs.com RE: Weld LV, LLC & Gerrard Investments, LLC C/O Martin Marietta (USR15-0027), Acceptance of Risk, Development Processes Dear Bruce: As we have discussed, Martin Marietta Materials ("Martin Marietta") desires to continue to submit and process development approvals related to its asphalt plant, concrete plant and aggregate materials operation ("the Project") located off of County Road 13, south of State Highway 34 ("the Property"), approved by the County Commissioners on September 15, 2015, and challenged by opponents in the above captioned litigation. Based on our discussion of December 11, 2015, the County agrees that it can and will continue to review, process, and approve the various components of the Project according to the County's normal process and Code, so long as Martin Marietta acknowledges that such continued action is at its own risk. Martin Marietta acknowledges that, in the event the litigation results in an invalidation of the approval of its Use by Special Review ("USR") permit for the Project, that it may have to cease activity, or remove improvements that have been installed pursuant to approved permits. As was presented at the public hearing, however, the Project is critical to the development of northern Colorado and Martin Marietta's customers. As such, Martin Marietta nonetheless wishes to continue to pursue and implement the Project at the fastest reasonable pace. We thank you for your and the County's continued cooperation in this matter. Please let me know if you have questions or if we can provide further information. cerely, Carolynne (7 White 016276O033% 296O61 1 bhfs.com EXHIBIT C 410 Seventeenth Street, Suite 2200 Denver, CO 80202-4432 main 303.223.1100 Brownstein Hyatt Farber Schreck, LLP COMMON INTEREST, LIMITED INFORMATION SHARING1 AND CONFIDENTIALITY AGIWEMEN 11: I LED: October 20, 2016 9:08 AM FILING ID: 980F6B6B37E48 This Common Interest, Limited Information SharinficAfki Nithitfl&RRtialety5G a Pent (this "Agreement") is made and entered into on , 201.5 by and between MARTIN MARIETTA MATERIALS, INC., a North Carolina corporation ("Martin Marietta"), GERARD INVESTMENTS, LLC, a Colorado limited liability company ("Gerrard") and the BOARD OF COUNTY COMMISSIONERS, COUNTY OF WELD, STATE OF COLORADO, a body politic and corporate ("County Commissioners"), and each of the attorneys who are signatories to this Agreement. Each of the foregoing sometimes be referred to as a "Party" or, collectively, as the "Parties." RECITALS A. Gerrard is owner of or has the right to purchase approximately one hundred thirty-one (131) acres of real property located within the boundaries of unincorporated Weld County, Colorado (the "County"), which property is more specifically located in the vicinity of Weld County Road 13 and Weld County Road 56 (the 'Property"). B. Martin Marietta has an option to lease the Property from Gerrard and intends to construct and operate a concrete and asphalt production, processing and distribution center on the Property (the "Project") C. On August 12, 2015, the County Commissioners approved Martin Marietta's Application for an Amendment to a Site Specific Development Plan and for a Use by Special Review Permit (the "Application," formally referred to as USR 15-027). Approval of the Application is required in order for Martin Marietta to proceed with development of the Project. D. On September 9, 2015, litigation against the County Commissioners was initiated by plaintiffs seeking declaratory relief and relief under C.R.C.P. 106(a)(4) and alleging that the uses contemplated by the Project are unlawful as conducted on the Property and that by approving the Application, the County Commissioners abused their discretion (the "Litigation"). E. The Parties recognize and confirm that they share common legal interests in defending the Litigation and in defeating or settling any other disputes against the Parties that may arise out of, regard, or pertain to approval of the Application. F. The Parties and undersigned counsel, or any attorney subsequently joining and agreeing to be bound by this Agreement (collectively, the "Attorneys"), have shared, will share, and intend to share privileged communications, documents, legal strategies and theories, work product, confidences and other information for the purpose of advancing the Parties' common interests. The Parties further intend to keep all such communications, documents, legal strategies and theories, confidences and other information confidential, and to protect any privileges related thereto to the fullest extent authorized by law or court rule. G. This Agreement confirms and details the purpose, nature, and the extent of the common interest agreement that exists and will continue to exist for the benefit of the Parties hereto. Each Party is exclusively represented by its own counsel. Such counsel have advised each respective client of the confidentiality of the communications, documents, legal strategies and theories, confidences and other information assembled, conveyed and received, pursuant to the attorney -client privilege, the attorney work -product doctrine, and other applicable privileges. Common interest and Confidentiality Agreement 01627610027\13338572.2 CONFIDENTIAL EXHIBIT D iry1r112.2MIIS314, It I H The Parties intend to maintain and preserve the confidentiality provided by the attorney - client privilege, the attorney work -product doctrine, the joint defense privilege, the common interest privilege, the self-critical analysis privilege, and any other applicable privileges, and to not waive the same by sharing communications, documents, legal strategies and theories, confidences and other information between and among themselves and the Attorneys I Based on the recommendations of counsel, each of the Parties has agreed to reveal and has revealed communications, documents, legal strategies and theories, confidences and other information upon the express condition that no Party or counsel will disclose to any person or entity not a Party to this Agreement any such communications, documents, legal strategies and theories, confidences or other information without the prior written consent of other Party or such other Party's counsel (except to the extent such disclosure is expressly permitted by this Agreement), or unless (and only to the extent) a court of competent jurisdiction orders otherwise AGREEMENT NOW THEREFORE, in consideration of the mutual benefits accruing to the Parties, and the mutual covenants contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties and their respective counsel executing this Agreement have agreed and do agree as follows 1 The Parties, in connection with the Project, may from time to time share with each other, and respective counsel for the Parties certain information, tangible things, data, documents, memoranda, reports, legal research and analysis, including, without limitation, information containing mental impressions, conclusions, opinions, strategies or legal theories of an attorney or other representative of a party, attorney -client communications, and expert opinions prepared by or in the possession of the Parties' attorneys, consultants, agents and employees, related to the Project (individually or collectively referred to as the "Common Interest Materials") under the terms and subject to the conditions of this Agreement The Parties agree that all information, tangible things, data, documents, memoranda, reports, legal research and analysis related to the Project disclosed by and/or exchanged between them while this Agreement is in effect shall be Common Interest Materials subject to this Agreement, regardless of how said information, tangible things, data, documents, memoranda, reports, legal research and analysis are so marked or designated The Common Interest Materials may be disclosed and shared only between and among (a) the Parties, (b) such officers, directors, employees, agents, attorneys and other representatives of the Parties as are responsible or involved in the management and defense, or factual and legal investigations relating to, the Project (all such persons and entities described in the foregoing clause (b) are sometimes hereinafter referred to each as an "Authorized Person" and collectively as the "Authorized Persons") Any Authorized Person that is permitted access to Common Interest Materials shall be advised by the relevant Party that the Common Interest Materials are pnvileged and subject to this Agreement 2 It is the Parties' intent and understanding that the Common Interest Materials shared between and among themselves and their respective Authorized Persons are privileged and confidential, and are subject to claims of attorney -client privilege, attorney work -product doctrine, joint defense privilege, common interest privilege, accountant -client privilege, self-critical analysis privilege, deliberative process privilege, and any other applicable privilege authorized by law or court rule, and that exchanges or disclosures of Common Interest Materials between and among the Parties and their respective Authorized Persons do not diminish or undermine in any way the confidentiality or privileged status of the Common Interest Materials and do not constitute a waiver of any privilege otherwise applicable. Similarly, to the extent the Parties share Common Interest Materials developed by their consulting experts, if any, it is with the express understanding that the confidentiality of those Common Common interest and Confidentiality Agreement 016276\0027\13338572 2 2 CONFIDENTIAL ti N Interest Materials is preserved pursuant to Rules 26(b)(4)(B) of the Colorado Rules of Civil Procedure None of the Parties shall disclose Common Interest Materials to anyone except the other Parties and the Parties' respective Authorized Persons without the express written consent of the other Parties to this Agreement or such other Parties' counsel, or unless (and only to the extent) a court of competent jurisdiction orders otherwise (subject to each Party's respective obligations under Section 5 below) This Agreement shall not prohibit disclosure by a Party of materials which that Party alone has prepared or obtained, which contain no privileged or protected information obtained directly or indirectly from any other Party, and which are Common Interest Materials only because that Party has delivered them to another Party This Agreement shall not prevent a Party from using in management of the Project non - privileged facts, documents, and theories which are learned or derived from Common Interest Materials 3 Nothing in this Agreement shall require any Party to disclose to any other Party or any other Party's Authorized Persons information, tangible things, data, documents, memoranda, reports, legal research or analysis that is confidential, privileged, or protected by the work -product doctrine 4 Common Interest Materials shall continue to be held confidential and subject to all applicable privileges, including but not limited to the common interest, joint defense and deliberative process privileges, with respect to any disclosure to any person or entity not a Party to this Agreement, regardless of whether an adversity of interests between the Parties may subsequently be discerned or developed, or whether this Agreement is terminated or otherwise becomes inapplicable 5 If any person or entity not a party to this Agreement requests or demands, by subpoena, under the Colorado Open Records Act, C R S 24-72-201 et seq ("CORA") or otherwise, any Common Interest Materials from any Party to this Agreement, the Party receiving such request or demand shall (i) immediately notify the Party who originally conveyed the requested Common Interest Materials, and (ii) assert the common interest and joint defense privileges and any other applicable privileges with respect to the requested Common Interest Materials, unless these privileges are waived in writing by the Party who originally conveyed the requested Common Interest Materials Each Party shall take all reasonable steps to assert and to permit the assertion of all applicable rights and privileges with respect to such Common Interest Materials and shall cooperate fully with each Party in any judicial proceedings relating to the disclosure of the Common Interest Materials The County Commissioners further acknowledge that the Common Interest Materials disclosed by Gerrard or Martin Marietta constitute privileged, proprietary, confidential trade secret, financial or commercial communication pursuant to CORA 6 The Parties agree to keep the terms of this Agreement confidential This Agreement, its terms, and all discussions among the Parties, their attorneys, officers, directors, agents, consultants, representatives and employees with regard to this Agreement are themselves subject to the attorney -client privilege, the attorney work -product doctrine, the joint defense privilege, the common interest privilege, the deliberative process privilege, the self-critical analysis privilege, and any other applicable privileges, and each party hereto shall assert such privileges in response to any subpoena or any other request for the identification or production of this Agreement or in response to any inquiry as to its terms and discussions relating to it 7 This Agreement memorializes the agreement and understanding that the Parties and their counsel have had with respect to the matters described herein All privileged communications previously had, and all Common Interest Materials previously exchanged between or among the Parties and their respective attorneys, officers, directors, agents, employees, consultants and representatives are subject to this Agreement 8 Any Party may terminate its prospective participation in this Agreement upon not less than thirty (30) days' prior written notice of such termination to the other Parties and the other Parties' Common Interest and Confidentiality Agreement 0[6276\0027\13338572 2 3 CONFIDENTIAL counsel No such termination shall affect the status of Common Interest Materials disclosed prior to the effective date of the termination Upon any such termination, all Common Interest Materials supplied by any Party to this Agreement to the terminating Party shall immediately be returned by the terminating Party to the Party who originally supplied the Common Interest Materials, and the terminating Party (a) shall not retain any copies, summaries, extracts or notes relating thereto and (b) shall make no disclosure to any person or entity of the substance of such materials, unless (and only to the extent) a court of competent jurisdiction orders otherwise (subject to each Party's respective obligations under Section 5 above) The Parties further agree that the non -terminating Party is free to use any Common Interest Materials obtained pursuant to this Agreement, including Common Interest Materials obtained from the terminating Party, in preparation and in further management and defense, or factual and legal investigations relating to, the Project, provided, however, that the non -terminating Parties shall not disclose Common Interest Materials obtained from the terminating Party to any person or entity other than the non -terminating Parties' Authorized Persons without the express written consent of the terminating Party or such terminating Party's counsel, or unless (and only to the extent) a court of competent jurisdiction orders otherwise (subject to each Party's respective obligations under Section 5 above) 9 If any of the Parties withdraw or is terminated from participation in the Project, the common interest and joint defense privileges created by and described in this Agreement shall not be waived and shall be deemed to continue in full force and effect A Party who withdraws or is terminated from participation in the Project shall be deemed to have terminated its prospective participation in this Agreement as of the date of withdrawal 10 The Parties intend to preserve all applicable privileges as to the Common Interest Materials and to protect them as confidential and privileged to the fullest extent allowed by law or court rule Any improper or inadvertent disclosure by one Party of Common Interest Materials shall not be deemed a waiver by that Party or any other party of its rights to assert a claim of privilege or protection with respect to the Common Interest Materials 11 Any Common Interest Materials shared between or among the Parties and their respective Authorized Persons are to be used solely by the Parties and such Authorized Persons in relation to the Project or factual and legal investigations relating to the Levies, and they may not be used for any other purpose 12 This Agreement shall not create any agency or similar relationship among the Parties Further, each Party is responsible for its own decisions relating to execution, management, defense and/or investigation (factual and legal) of the Project, including legal strategies and theories, and no Party is responsible for acts or decisions taken or made by others No Party shall have authority to waive any applicable privilege or doctnne on behalf of any other Party, nor shall any waiver of an applicable privilege or doctrine by the conduct of any Party be construed to apply to any other party 13 No attorney -client relationship is intended nor created (either express or implied) between (a) any counsel to a Party and (b) any person or entity (including the other Party and the other Party's Authorized Persons) other than the Party that is the client of such counsel as identified on the signature page to this Agreement Each Party represents and acknowledges that such Party is represented exclusively by such Party's own counsel as identified on the signature page to this Agreement Each such counsel is obligated to maintain the confidentiality of Common Interest Materials as specified in this Agreement but does not act on behalf of any person or entity other than the Party that is such counsel's own client. Nothing in this Agreement is intended to interfere with any counsel's obligation to ethically and zealously advocate for such counsel's own client Common Interest and Confidentiality Agreement 01627610027113338572 2 4 CONFIDENTIAL 14 Counsel have fully discussed with their respective clients the advantages and disadvantages associated with this Agreement, as well as any conflicts of interest which have arisen or may arise in relation hereto, and each of the respective clients understands the same Each Party expressly, knowingly and intentionally waives any such conflict insofar as it is necessary to allow the Party and counsel to participate in this Agreement, and each Party expressly, knowingly and intentionally waives wholly conflict -free representation 15 Prior to entering into this Agreement, each Party has considered that it is possible that the other Parties to this Agreement, or such other Parties' Authorized Persons, may later become witnesses against such Party or hold a position adverse to that of such Party Notwithstanding any other provision of this Agreement to the contrary, each Party reserves the nght for future adversarial action, proceeding, arbitration or litigation ("Future Claims") Each Party represents that such Party has considered the foregoing and believes that the benefits of being a party to this Agreement outweigh any of the limitations imposed by this Agreement To the extent that any Party pursues Future Claims, and as a condition precedent to the receipt of any further Common Interest Materials a each Party represents that such Party will not assert in the course of a Future Claim that counsel for any Party to this Agreement is barred from continuing such counsel's representation by virtue of the existence of this Agreement or counsel's access to, or receipt of, Common Interest Materials under this Agreement (whether such access or receipt occurs prior to, in connection with or after execution of this Agreement), and b the Parties further agree that, should any Party (including any employee or representative of such Party) testify in the course of any Future Claim, counsel for the other Party to this Agreement will not be disqualified from cross-examining the testifying party for any reason arising out of the existence of this Agreement or counsel's access to, or receipt of, Common Interest Materials under this Agreement (whether such access or receipt occurs prior to, in connection with or after execution of this Agreement), including the ground that such counsel has been privy to attorney -client communications pursuant to this Agreement, and c the Parties further agree that nothing in this Agreement shall be construed to prevent the Parties from revealing, using, or introducing in the course of such Future Claim any information, document, or secret that is otherwise property obtained through discovery or from independent third party sources 16 This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument This Agreement may also be executed and delivered by facsimile or portable document format ( pdf) signature and in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument 17 The Parties agree that a breach of this Agreement will cause irreparable harm to the other Parties and that injunctive relief is the appropriate means to enforce this Agreement 18 The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement 19 In case any one or more of the provisions contained in this Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and such invalid, illegal, or unenforceable Common Interest and Confidentiality Agreement 016276\0027\13338572 2 5 CONFIDENTIAL t provision shall be reformed and construed so that it will be valid, legal, and enforceable to the maximum extent permitted by law 20 This Agreement and any controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of Colorado without regard to conflict of law pnnciples that would result in the application of any law other than the law of the State of Colorado 21 No modification of this Agreement will be effective unless in writing and signed by the Parties 22 No waiver by any Party of any breach of this Agreement will be a waiver of any preceding or succeeding breach by the other Parties No waiver by any Party of any right under this Agreement will be construed as a waiver of any other nght' [Remainder of this page intentionally left blank, signature page follows] Common Interest and Confidentiality Agreement 016276\0027\13338572 2 6 CONFIDENTIAL IN WITNESS WHEREOF, the parties have executed this Common Interest, and Limited Information Sharing, and Confidentiality Agreement of the date first written above MARTIN MARIETTA MATERIALS, INC., a North Ca ma corporation By. y - Date. Na ne. '/�`/r/OW /`f.- l.e-147,[ia"l( Title: e1/‘../r/oy 194,�-s'/o�-�� BOARD OF COUNTY COMMISSIONERS, COUNTY OF WELD, STATE OF COLORADO, a body politic and corporate. B N me' r-ba.t32.. Ir iii, . r Title, t d £ii€,z £O/n/ttts awe. -1 6/,r GERRARD INVESTMENTS, LLC, a Colorado limited liability company Date 7.--')/.1 ( f 6 By. Date: Name. - - Title Common Interest and Conridentiality Agreement, CONFIDENTIAL IN WITNESS WHEREOF, the parties have executed this Common Interest, and Limited Information Sharing, and Confidentiality Agreement of the date first written above. MARTIN MARIETTA MATERIALS, INC., a North Ca • Ina corporation Bye Na e ern/ OW /X 4ef40 Atedir Title: /Ac-/f/Cq Are: Date: BOARD OF COUNTY COMMISSIONERS, COUNTY OF WELD, STATE OF COLORADO, a body politic and corporate: By: Date: Name: Title: GERRARD INVESTMENTS, LLC, a Colorado limited liability company: By: Date: Name: Title: 4 Common Interest and Confidentiality Agreement CONFIDENTIAL IN WI [NESS WHEREOF, the patties have executed this Common Inteiest, and Limited lnfoimation Sharing, and Confidentiality Agreement of the date fast written above MAR'L'IN MARIETTA MATERIALS, INC., a North Carolina coipoi anon By Date Name ['rile BOARD OF COUNTY COMMISSIONERS, COUNTY OF WELD, STAFF, OF COLORADO, a body politic and corporate By Name Title GERRARD INVESTMENTS, LLC, a Colorado limited liability company Title idlAt-a§_s Compton Interest and ConitdcnUaltq Agroemant Date Date 7109y iss—' n CONFIDENTIAL ACKNOWLEDGMENT OF COUNSEL: By executing below, each counsel acknowledges the provisions of the foregoing Agreement and certifies that such counsel has explained the contents of this Agreement to such counsel's client. BROWNSTEIN HYATT FARBER SCHRECK, LLP Date: Wayne I Forman* 410 Seventeenth Street, Suite 2200 Denver, CO 80202 *Counsel to Martin Marietta WITWER, OLDENBURG, BARRY & GROOM, LLP By: Date: Patrick R. Groom** 822 71h Street, Suite 760 Greeley, CO 80631 **Counsel to Gerrard !n-cnsjr �cJt gcy re Sr ter 7 t Cij I 6-4c3 ACS 3a ***Counsel to the Coun mmissioffers Common interest and Confidentiality Agreement Date:fe4 1 s, CONFIDENTIAL ACKNOWLEDGMENT OF COUNSEL: By executing below, each counsel acknowledges the provisions of the foregoing Agreement and certifies that such counsel has explained the contents of this Agreement to such counsel's client. BROWNSTEIN HYATT FARBER SCHRECK, LLP By: 7 - Wayne ) Forman* 410 Seventeenth Street, Suite 2200 Denver, CO 80202 *Counsel to Martin Marietta WITWER, OLDENBURG, BARRY & GROOM, LLP Date: By: Date: Patrick R. Groom** 822 7th Street, Suite 760 Greeley, CO 80631 **Counsel to Gerrard WELD COUNTY By: Date: *** ***Counsel to the County Commissioners Common Interest and Confidentiality Agreement CONFIDENTIAL ACKNOWLEDGMENT OF COUNSEL By executing below, each counsel acknowledges the provisions of the foregoing Agreement and certifies that such counsel has explained the contents of this Agreement to such counsel's client BROWNSTEIN HYATT FARBER SCHRECK, LLP B� Date Wad ne F Foi man 410 Se\ enteenth Street, Suite 2200 Denver, CO 80202 *Counsel to Martin Marietta WITWER, OLDENB JRG, BARRY & GROOM, LLP By Pat ick M Groom 822 7th Street Suite 760 GieeleCO 80631 `*Counsel to Geriard WELD COUNTY Date /5C:5 /.1.?— BN, Date xk , '`**Counsel to the Count\ Commissioners Common Imkrest and Contidentialitx Agtzetn,ut ( ONFIDFN I IAL Case COZ20-0004 Letter for Public Record May 9, 2020 Dear Weld County Commissioners, I can still remember the day my parents came home and told my sister and I that they had finally found a piece of property to buy. The numerous years of driving around looking at properties and countless hours working to save money to secure the property that would be their retirement and dream home finally paid off. My dad, dedicated to the farm woke up every day for over a year between 3-4 am to drive the over an hour commute to the property. There he tended to the land, learned farming and planed for their future house, all before his day job started. Then after quitting time he was back at the property for more work. It never stopped. He showed my mom, sister and I the drive and determination, not only to save for your dreams but to make them become a reality. After learning as much as he could about water rights, farming the land and building relationships he started to build the house my parents had planned to live in. My father built not only the barn, but the house they continue to reside in with his own two hands. My mom, sister and I helped with trim, painting, clean up, etc. We all put our blood, sweat and tears into the place that would be our resting station. A place that was quiet, a place that strengthened our family and a place that would hold many memories. In fact, we all loved this place so much, that when my husband proposed I knew I wanted to get married there. It was sentimental to me and to him. We spend many family dinners together, helping my dad plant corn and wheat and enjoy watching my children play in the dirt. It our happy place. Within the last couple of years that has come to a crashing halt because of the poor decision that are being made and allowed. Our community has fought tirelessly to protect the land that should have never been allowed to become anything remotely close too industrial. It truly makes me so sad and disheartened to realize that our government is really persuaded by money and not by the people. Anyone could have come to that parcel of land and realized the closeness of farms and neighborhoods that would reside behind an asphalt plant. Do you really think that is ok? I completely oppose the Case COZ20-0004. Why are you choosing to take away the dream of not only our family, but so many who have worked to have solitude in the land that surrounds the neighborhood and farms? Why are you choosing to allow major industrial into a farm and neighborhood community? Don't take away the memories of our past and future. I pray you choose responsibly! Claire Richardson EXHIBIT .0 8 Case #CO120-0004 Weld County Department of Planning Services, 1555 N. 17th Ave., Greeley, CO 8063,x;,, May 3, 2020 Dear Planning Department: I am writing in reference to case #COZ20-0004. We are very concerned about Rock & Rail or Martin Marietta Materials trying to rezone their property southwest of our subdivision to Industrial -3. We do n ot want it rezoned to Industrial -3. We purchased our home in Indianhead Estates in August 2018 and were unaware of the changes that were happening or planned for with Martin Marietta Materials. Since we have lived here we hear train whistles at all hours of the night, and when out walking see clouds of dust and loud noise from the concrete plant. All of this is very concerning to us, as we are older and this noise, dust and potential smells associated with this change to include an asphalt plant, keep us from sleeping and enjoying our home! We do not want the proposed zoning change to Industrial -3! We are aware of the rezoning possibility and if happens then many other things could happen on that land without public notice or input. We do n ot want anymore industrial use that close to our subdivision and home, that we planned on living in during our retirement. We wouldn't be able to enjoy our home with noise that is louder than just n eighborhood voices and street traffic, large amounts of dust and all of the horrible smells associated with large industry so close and without a say in what else can go on there. Please, please, please do not allow this rezoning to Industrial -3. We will continue to lose sleep and have our quality of life drastically changed for the negative. All of these possibilities were not what we bargained for when we purchased our home and moved here! Thank you for your consideration of the impact this will have on us and our neighbors in Indianhead Estates. Sincerely, ('1 41 ill/ 1 tt (Sniff) Carroll and Terri Smith EXHIBIT 26 Case ft COZ20-0004 Dear Planning Staff, trF;\fcfl MAY 2020 Weld Lo ►!►iy I lilk.i GRELLL Y Ohi ICE I write this letter in protest of the Rock & Rail railroad, subsidiary of Martin Marietta, rezoning to industrial -3 site. As a neighbor to Rock & Rail's existing concrete operation. I find the tasks of the operation very loud and obnoxious. There are days when I can hear the squealing wheels of the rail cars to the track because of the tight arc of the rail_ The loud noise from the tug and stop of the rail cars as they're unloaded. The continuous machine noise of mixing large batches of concrete. The train locomotive whistle as it warns of its presence, many times over, as was the case on April 24, 2020. Almost all of the arrivals of these trains are in early morning as I try to enjoy my patio with my coffee and breakfast. All of this noise is not white noise and must be breaking residential noise limits. On the morning of February 21, 2020 enjoying a cup of coffee on the patio, when a diesel odor permeated my space and filled the air. We shouldn't have to toles these situations. In 1976 - 1977 the Weld County Government permitted plans for the Indianhead residential to be built amid farm land. The present Weld County government should coptinue the original commitment, as this area is not compatible for heavy industrial as R4611( & ail and/Martin arietta wishes. You can stop this! ten.�k act &ItfritkA4 Paul & Sharon Markus 27711 Blackfoot Rd. Johnstown, Colorado 80534 06(die `71c) bOaLowc ffiq Siaocao "ISey, //(,lam 01Le a)) _,ULL aati VLL al)(1,2/L. HA �. ,,1020 C z_ 0002/ L -t& ot(te ° eern teAm_ 0 72144Jt cla4% pen, \„,"'Q- /z-aJ cciAdy a7vbi 77Le 1A.F( c677(2 frrea44 •441/VZ 0AtkgA wte_ 717O-ut itumezdf 124 azyLo(L /6-174/2-r tOoLteLleyk.0 7 1 From: BARRY ROBERTSON To: Angela Snyder Subject: Case number COZ20-0004 Date: Monday, May 11, 2020 12:34:47 PM EXHIBIT b .O ,8 2 Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless }uu recognize the sender and know the content is safe. Ms. Angela Snyder We live in the Indian Head subdivision and are unhappy to say our home is on the south west corner. We have a direct view of the Martin Marietta facility from our deck. We purchased our home in 2016 before any of the building of the facility and have put up with the constant changes and disregard to our pre -established neighborhood. This project was opposed by all surrounding it including the counties and towns. We as a group have won in the Colorado Appellate Court a decision to disallow the facility and have proven to the surrounding community that it was a mistake. To not reject the application for rezoning would be completely ignoring all of the history up until now. I do not understand why this would be anything but a NO answer on the rezoning. We have put up with unreasonable noise, dust, traffic and railroad trains at overnight hours for too long already. Our house is disturbed all hours both night and day to the point of not sleeping at night and not wanting to go out during the day to enjoy the day and our otherwise excellent neighborhood. Rezoning would only give them a green light to do as they please which it seems they are already taking to many liberty's. Respectfully Barry and Sandy Robertson 27701 Hopi Trail in Indianhead Estates May 11, 2020 EXHIBIT 1 29 TO: WELD COUNTY COMMISSIONERS C/O ANGELA SNYDER, PLANNER WELD COUNTY DEPARTMENT OF PLANNING SERVICES 1555 NORTH 17th AVENUE GREELEY, CO 80631 RE: CASE COZ20-0004 FOR PUBLIC RECORD Physical address: Jennifer Cummings 26700 Weld County Road 13 Johnstown, CO 80550 DEAR WELD COUNTY BOARD OF COMMISSIONERS: AS A PROPERTY OWNER, WHO LIVES LESS THAN 1200 FEET DIRECTLY SOUTH ON COUNTY ROAD 13, FROM THE CURRENT ROCK & RAIL / MARTIN MARIETTA FACILITY, I STRONGLY OBJECT AND OPPOSE REZONING THE ROCK & RAIL/MM FACILITY TO HEAVY INDUSTRIAL I- 3 ZONING. I-3 ZONING IS HIGHLY INCOMPATABLE WITH THE AREA AND WOULD BE A DETRIMENT TO OUR NEIGHBORHOOD ON MANY LEVELS. I-3 HEAVY INDUSTRIAL USES ARE A FLAGRANT DISREGARD FOR THE SURROUNDING PERIMETER AREA OF THE FACILITY WHICH CURRENTLY INCLUDES: • PRE-EXISTING PLANNED RESIDENTIAL COMMUNITIES INDIAN HEAD ESTATES - A PLANNED COMMUNITY OF 160 FAMILIES. ESTABLISHED IN 1972. THIS COMMUNITY REFLECTS PRIDE AND CARE. THE IN A COMMUNITY LOOKS DIRECTLY INTO THE ROCK & RAIL FACILITY AND IS EXPOSED TO ALL DETRIMENTAL ASPECTS - NOISE ANYTIME OF DAY OR NIGHT, DUST, TRAIN ARRIVALS AND DEPARTURES, AND TOXIC EMMISSIONS • COYOTE RIDGE ESTATES - A CUSTOM HOME AND PLANNED COMMUNITY, ALSO IN CLOSE PROXIMITY TO ROCK & RAIL EXPERIENCES THE SAME ISSUES NOTED ABOVE • ROCKIN S RANCH - AN EXAMPLE OF A COMMITMENT TO OUR NEIGHBORHOOD A 60 -YEAR OLD DAIRY FARM AND RESIDENCE PURCHASED BY OUR NEIGHBOR CHRIS FRIEDE, RESTORED AND TRANSFORMED INTO A WEDDING VENUE RECOGNIZED BY "THE KNOT" AND CLIENTS AS BEST WEDDING VENUE SURROUNDING THE ROCK & RAIL FACIITY ARE LARGER RURAL ACREAGES FARMED BY FAMILIES THAT HAVE BEEN ESTABLISHED FOR OVER 100 YEARS THESE INCLUDE CONVENTIONAL AND ORGANIC FARMS THESE ARE OWNERS WHO SEE THE IMPORTANCE AND VALUE OF THE FARM COMMUNITY, FOR EXAMPLE CAULKINS ORGANIC FARM, MCDONUAGH FARM AND CROSSIANT FARMS OUR PERSONAL PROPERTY OF 96 ACRES LOCATED DIRECTLY SOUTH OF THE ROCK & RAIL FACILITY, IS ZONED AGRICULTURAL AND HAS BEEN FOR OVER 100 YEARS MY HUSBAND, JOHN CUMMINGS AND I HAVE RESIDED IN THIS NEIGHBORHOOD SINCE 1998 OUR PROPERTY IS ZONED AGRICULTURAL ANYONE WHO RESIDES IN OUR NEIGHBORHOOD AND WHO HAS INVESTED THEIR LIVES IN THIS AREA CAN ADAMANTLY AGREE THAT I-3 ZONING IS STRONGLY INCOMPATIBLE WITH OUR AREA AND WILL BE DETRIMENTAL TO OUR COMMUNITY VIA POLLUTANTS, EMISSIONS, NOISE, COMMERCIAL TRUCK TRAFFIC, DUST, WATER CONTAMINATION, ETC WE BUILT OUR HOMES HERE AND INVESTED IN OUR PROPERTIES FOR A REASON - FOR THE PEACEFUL RURAL EXPERIENCE AND WE WERE HERE FIRST THANK YOU, JENNIFER CUMMIINGS From: BARRY ROBERTSON To: Angela Snyder Subject: CO720-0004 Date: Monday, May 11, 2020 5:25:10 PM EXHIBIT 5 30 l ion : This email originated from outside of Weld County Government. Do not click links or open attachments unless ou recognize the sender and know the content is safe. Ms. Angela Snyder Weld Co Dept of Planning Services 1555 N. 17th Avenue Greeley,CO 80631 Dear Ms. Snyder As you have already been informed, there are multiple reasons that this n eighborhood and this prime agriculture area residents have been adamantly o pposed to the Martin Marietta / Rock and Rail invasion that we have all been subject to for the last 5 years. Of course, the illegality of the zoning change and the dubious moral character of o ur county commissioners and their self-serving decisions regarding anything Martin Marietta, certainly make one question the honesty and integrity of these public servants making the best decisions on this matter. These "public servants" decisions have clearly disregarded the original zoning and protection of this prime agricultural land and the residents who have enjoyed the peace and quiet of their country living here in Indianhead Estates. The effect on our community and the rural surroundings have been: There is constant dust: grinding commotion from noisy machinery: endless heavy truck traffic on all the surrounding roads: the presence and sounds of the train --horn blasting, brakes squealing, train cars banging together, and constant idling of the train engine for hours, have been documented by the very well educated scientific minds that live in this neighborhood. Their data show that noise limits have exceeded the acceptable limits both day and night! Needless to say, the quality of life here has changed for the worse and if Martin Marietta/ Rock and Rail are allowed to continue operations, our fear is that other large industry will see an open door for development here --in a place that should have NEVER have been rezoned from the beautiful and peaceful alfalfa and grain fields that rightfully and peacefully have been in place here for so many years. Thank you for your consideration. Sandy Robertson 27701 Hopi Trail Johnstown, CO 80534 Case #: COZ20-0004 for Public Record May 12, 2020 From: Cheryl (Chris) Friede/The Rockin' S Ranch 6943 CR 56 Johnstown, CO 80534 To: Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 asnyder@weldgov.com Weld County Board of County Commissioners: EXHIBIT 1 31 I am writing to STRONGLY OPPOSE the Weld County Rezoning Application COZ20-0004 and insist that the application be denied. My 35 -acre property (that is home to both my home and business) directly borders the majority of the east side of the Rock & Rail/Martin Marietta facility. As a property owner who borders the facility, both my family and business have already been very negatively impacted by the noise, dust, visual impact, traffic, and financial hardship from the Rock & Rail facility and the illegal operation of the Martin Marietta concrete operation. As the business owner of The Rockin 'S Ranch wedding and event venue, USR15-0028, the negative impact of the Rock & Rail/Martin Marietta facility has reached my business and anyone who chooses to book a wedding at my venue. My business was established in 2014, and I received my USR approval from the county in June 2015, prior to the County hearing for the MMM USR. Over the past five years the unlawful activity "next door" has had a significant negative impact on my business due to noise, dust, visual appeal and increased traffic, and the situation only continues to get worse due to complete lack of disregard by Rock & Rail/Martin Marietta for the critical needs of my business, neighboring residences and farms and their unwillingness to follow through to implement and adhere to development standards. The negative impact of this facility on my business and the surrounding neighborhood would be devasting if Weld County BOCC were to approve this rezoning. I purchased my property in 2011 and knew I had found something very special, a spectacular, panoramic view of the Rocky Mountains, an adjoining lake, beautiful sunsets, quiet, rural setting surrounded by great neighbors and prime farmland. Upon purchasing the property my children and I immediately started a major cleanup of the 1950's dairy farm. We have worked very hard and I have made significant financial investments to improve the property with a vision to transform it into a stunning wedding and event venue. From 2011- 2014, in addition to the major cleanup I worked closely with architects, a builder, structural engineer, landscaper, Weld County Planning Department, the Weld County Small Business Development Center, neighbors, family and friends. June 17t'', 2015, was the date that I reached a major milestone in launching my small business, the Weld County BOCC approved my USR15-0028 for The Rockin' S Ranch Wedding and Event venue In applying for and getting my USR approval, I worked with my neighbors to make sure I addressed and resolved any concerns A huge pillar in the building of my business has been to maintain the historical rustic nature of the 1950's dairy farm, in order to preserve this special piece of local history, as well as to provide my community with a business that will serve as a positive gathering space for one of life's biggest milestone events, and provide local entrepreneurs and small businesses (photographers, caterers, florists, DJs, wedding planners, etc ) with a Weld County wedding venue that attracts business from all of Northern Colorado and provides these people with work As a result of constantly seeking to be a good neighbor and considering the community impact as I build my business, myself and my neighbors all work well together with respect for one another When considering their wedding locations, my potential clients consider how the venue will photograph, what the ceremony site view looks like, and the overall setting and ambiance of the wedding venue for their guests The presence and negative impacts (dust, visual, noise, traffic) of Rock & Rail and the Martin Marietta facility directly affects how sellable my venue is to potential clients, not to mention the "wedding day experience" of existing clients that booked the venue a year or more in advance I have specific development standards that are part of my USR I take these development standards very seriously and am diligent in adhering to them and work hard to be a good neighbor I respect my neighbors and we work together as a community For example, A -Concrete, a business which is located to the east of my property across County Road 15 and Coyote Ridge Construction, another business located to the west of my property off County Road 56 have both been excellent to work with They demonstrate what being a good neighbor should be We work together, respecting each other's business needs, adhering to required development standards, and showing mutual respect for each other's businesses and for the surrounding neighborhood This has most definitely NOT been the case with regard to Rock & Rail/Martin Marietta Over the past five years, I have lived the with reality of what kind of a "neighbor" they are They are only concerned with their business with no regard to any of the surrounding residences, farmers, and businesses They have demonstrated unethical, illegal behavior and do whatever is necessary to operate their business at the expense of those around them, including a subdivision of over 100 homes, farms, and businesses such as my wedding venue They have a complete lack of respect with regards to the negative impact their business has on the lives and businesses of those around them Following are a few examples of the increased negative impact since 2015 Noise Levels A significant increase in noise (at all hours of the day and night) due to train arrival/departures, train unloading, concrete plant operations, conveyors dumping materials - Loud crashing noises when train unloads The train unloading building is directly across the lake from my wedding venue so noise from the unloading is the worst in the venue ceremony area It is a constant worry that a train will be unloading in the middle of a wedding ceremony which would be horrific for a bride/groom as they say their vows and would have devasting impact on my ability to stay in business - Loud noise from illegal operation of cement plant and movement of material being dumped from conveyors Under my USR the development standards state that I have to meet the noise requirements of the "unspecified" zone, which are identical to those for the residential zone 55 dB(A) day, 55 dB(A) night I'm further restricted to no music after 12 AM and no partying after 2 AM, (although, to be sensitive to my neighbors I end all music by 10 pm) These are legitimate restrictions for the protection of the neighborhood so that The Rockin' S Ranch is "compatible" with its surroundings Rock & Rail's application to Weld County for the subject rezoning identifies 5 Weld County businesses located close to the proposed Industrial Zone as evidence that the 1-3 zone would be compatible with the surrounding area - Pet Crematorium/ RV storage area, USR 15-0040 - A Concrete, USR 16-0010 - W3 Legacy LLC fly ash transloading facility, USR 15-0010 - Conference Center, USR 15-0028 - Construction business, USR 15-0075 A search of the Development Standards for these USRs reveals the following USR Document Noise limit 15-0040 20153646 Unspecified, 55/50 dB(A) 15-0044 20160083 Unspecified, 55/50 dB(A) 16-0010 20161723 Commercial, 55/50 dB(A) 15-0075 20160731, 20160596 Residential, 55/50 dB(A) 15-0028 20151533 Unspecified, 55/50 dB(A) Since the proposed 1-3 zone would be permitted to emit 80 dB(A) daytime, 75 dB(A) nighttime, it would NOT be compatible with these surrounding uses Hours of Operation Facility operates all hours of day and night Trains arrive/leave all hours of day and night My family and I frequently get woken up when trains arrive/leave in the middle of the night - Train unloading not limited to day time hours or during the week Unloading often occurs on weekends and evenings, prime time for wedding ceremonies Visual impact The berm that was put in along my property line which was supposed to be landscaped and maintained is now full of weeds, a fire hazard, and no additional screening or landscaping has been done This has resulted in a very negative impact on the view from my wedding venue, a view that was once one of the key selling points of my venue What has replaced the stunning mountain views and beautiful sunsets is a berm full of weeds with large conveyors, train cars, piles of material and a train unloading structure directly across from my venue which sticks out like a sore thumb, certainly not the vision of what couples want as a backdrop for their wedding ceremony and pictures Business ethics As a small business owner, I have worked very hard and have made significant financial investments to develop and operate my business I am ethical and respectful of my neighbors On the other hand, Rock and Rail/Martin Marietta, a multi -billion -dollar company has demonstrated a complete lack of respect for any of their neighbors Based on firsthand experience over the past five years, they only care about what they need to do for their own business and will go to whatever means they need to in order to accomplish it, unethically, illegally, whatever it takes Allowing Rock & Rail to rezone is incompatible with the surrounding area and if Weld County approves this spot rezoning it will not only be devastating to the surrounding neighbors, it will put my wedding venue out of business, a small business/USR that has already been approved and is operational under a valid USR from June of 2015 In closing, I'm asking that you DENY Weld County Rezoning Application COZ20-0004 Not only will the visual impact, increased noise and traffic, and odor have a significant negative impact on residents, farmers, and businesses such as mine, as well as anyone who travels on Highway 34 This proposed re- zoning will also prohibit my ability to continue to operate my wedding/event venue business, The Rockin' S Ranch Sincerely, Cheryl (Chris) Friede Martin P (Pete) Straub 27793 Hopi Trail Johnstown, CO 80534 Ms. Angela Snyder Weld County Department of Planning Services 1555 N 17th Avenue Greeley, CO 80631 asnyder@weldgov.com EXHIBIT I s 32 RE: COZ20-0004: Application of Rock & Rail to rezone their concrete operation from Agricultural to 1-3 Industrial. (This letter is "For the Record") Dear Ms. Snyder: My name is Pete Straub, and I live at 27793 Hopi Trail in lndianhead Estates West. In fact, I live on the western border, so my wife and I reside at "ground zero" to all the noise, dust, traffic, and negative impacts of the Martin Marietta operation. This is our lifelong dream, a rural large lot home with a shop and yard to enjoy in our retirement. Unfortunately, this 4 %2 year -long nightmare has negated that dream. In the application to rezone the Rock and Rail facility land from Agricultural to 1-3, Industrial, I believe this action should not even be heard, much less allowed. My strong recommendation is for staff to recommend denying the rezoning, and for the Planning Commission to recommend to the BOCC to deny the rezoning and for the BOCC to deny the rezoning. Martin Marietta, the parent company of Rock and Rail, was deceptive in this action in the first place. With an ongoing court action pertaining to previous Weld County Use by Special Review approval, this is clearly a "end -around" to nullify the regulatory process in Weld County land use and subsequent relief sought by neighbors opposed to the USR approval in the state court system. The planning staff, planning commissioners, member of the BOCC, should especially recoil at the prospect of Martin Marietta and Rock and Rail in the circumventing of local regulatory and land use process. Although interstate rail commerce is a Federal issue under the regulatory authority of the Surface Transportation Board, along with essential related operations like transloading into haul trucks, it is clear that the separate operations of manufacturing concrete, transporting concrete slurry out in concrete trucks, hauling used concrete chunks in by truck, crushing it, and then hauling crushed concrete out of the facility is not. Neither is asphalt manufacturing, which is an ultimate goal of the owners of this facility. This rezoning flies in the face of the Weld County planners, who in good faith, worked with Martin Marietta in the USR process, and who Martin Marietta has now completely and absolutely demonstrated that they could not attain noise standards agreed to in the original USR stipulations. Susan F. Straub 27793 Hopi Trail Johnstown, Colorado 80534 May 12, 2020 Ms. Angela Snyder Weld County Department of Planning Services 1555 N 17th Avenue Greeley, Colorado 80631 asnyder@weldgov.com EXHIBIT 1 33 a RE: COZ20-0004: Application of Rock & Rail to rezone their concrete operation from Agricultural to 1-3 Industrial. (This letter is "For the Record") Dear Ms. Snyder; My name is Susan Straub and I live at 27793 Hopi Trail in Indianhead Estates West. I live on the western border (ground zero as we refer to it) of the Martin Marietta operation. My husband and I are directly affected by the noise, dust, traffic and all the negative impacts of Martin Marietta's operation. Moving to this small rural subdivision was a lifelong dream for both my husband and me; he had his shop, we had a large yard in which to enjoy our grandchildren, and clean air to breathe which was very important for me as I have had asthma all my life. In short, it was our retirement dream. Unfortunately, that all changed 4 1/2 years ago when this nightmare with Martin Marietta began. Our dream has been all but lost to the underhanded and deceptive behaviors of Martin Marietta. With an ongoing court action and without the approval of Weld County Use by Special Revue, they not only went ahead and built their concrete facility but did what has clearly been an end - around to nullify any regulatory process in Weld County land use and subsequent relief by neighbors opposed to the USR in our state's court system by declaring themselves a Railroad. We have spent thousands of dollars fighting for our way of life against these bullies in what was once a quiet, peaceful subdivision in Weld County to have them do what they are now trying to do because they could see that we were not going to back down and were even winning. The application to rezone the Rock and Rail facility land from Agricultural to 1-3, Industrial, I believe should not be heard, much less allowed. It is my strong recommendation for the staff to recommend denying the rezoning, and the Planning Commission to recommend to the BOCC to deny the rezoning and the BOCC to subsequently deny the rezoning. The idea of Martin Marietta and Rock and Rail in the circumventing of local regulatory and land use process should enrage the planning staff, planning commissioners and members of the BOCC Interstate rail commerce may be a Federal issue under regulatory authority of the Surface Transportation Board, along with essential related operations, separate operations of manufacturing concrete, transporting concrete slurry out in concrete trucks, hauling used concrete chunks in by truck, crushing the concrete and then hauling it out of the facility is not Neither is asphalt manufacturing which is Martin Marietta's ultimate goal Rezoning is nothing but a slap in the face to the Weld County planners' good faith effort who worked with Martin Marietta in the USR process to appease us as well as them As I stated before, our home here in rural Weld County was a retirement dream — if you allow this rezoning of prime agricultural land which our home directly borders, we will have lost it all My health will be at risk due to the asphalt chemicals in the as such pollution will certainly aggravate my asthmatic condition which improved tremendously once we left the city We will no longer be able to enjoy our yard due to the increased noise, traffic, dust and air pollution Once you allow them to rezone their land they currently occupy — it will not stop, we will lose all this beautiful prime agricultural land around us I, again, ask that you recommend denying this application. Sincerely, Susan Straub 303-319-6746 Over 150 homes, most likely Weld citizens within a mile circle of this facility Let me tell you how the quality of life has decreased for us Noise • Concrete operations Whirring, high pitched noises, and other mechanical noises come from the operation under normal use • Used concrete crushing Crushing has nothing to do with transloading, as large concrete used road pieces are hauled in by truck and then unloaded, (noisy), and then ran up a conveyer, (noisy) and then crushed, (real -real noisy) This prevents us from enjoying our backyards, visiting with our neighbors, walking the neighborhood in peace, and enjoying the homes we worked hard all our lives to have Check with Gary Opplinger, my neighbor to the south, who has a complete record of just how , noisy this actually is Gary, on behalf of the neighborhood, has obtained noise measuring equipment and has kept a good record of the negative impact • Unloading operations When trains come, (at all hours of the day and night), the sound of the coupling and uncoupling can be heard and felt at our property We were told this noise would not occur It has • Rail traffic The addition of several trains per week at any hour increases industrial noise in this residential setting • Truck Traffic More trucks are more tire noise at all hours of the day Horns, accelerating trucks, shifting gears, are now the hallmark of our environment Martin Marietta & Rock and Rail said that they would abide by noise limitations prescribed in the USR stipulations but have always failed to do so If the 1-3 industrial application is granted, things will only get worse as far as noise It will even be much worse Dust and Microscopic Pollution • The level of dust and dirt in the air has increased proportionally to what you expect unloading, dropping from conveyers, loading aggregate, and extra truck traffic involves • My wife has suffered from acute asthma since childhood This facility has put her life at risk Recently we invested in a new HVAC system with a special filter unit as a first line defense This extra expense was due entirely to MMM and R&R's improper and illegal use of Weld Agricultural land Visual Impairment to viewshed • Berms, walls, fences, big buildings, land scars, rail cars, and trucks now have replaced farmland that was our viewshed to the south west Not a pretty sight any longer With 1-3, this will become worse Decreased value of our Property • Any potential increase in value of our home the last 4 Y2 years has been diminished by 15-20% due to this facility, Our neighborhood, and the surrounding area has fought this facility since this was first proposed We have won several court fights both in District Court and in front of the Colorado Court of Appeals We currently have a court date for yet another fight when this unreasonable request for rezoning happened We urge denial of this zoning change application due to the following reasons 1 There is a current court case underway concerning this land use in front of the Colorado Court of Appeals This application is an obvious move to bypass the court 2 A rezoning of the adjacent property to even a less egregious Industrial zone classification, was denied In 2015, an attempt to rezone 135 acres the NW quarter of the same section was made by EnviroTech and McWhinney Enterprises and it was denied by the Weld BOCC If the BOCC found that rezoning objectionable, it would naturally follow that this application is even more objectionable for the same and even greater negative impact Subsequently Anadarko Petroleum (now Occidental), purchased that land and is keeping the vast majority of that as agricultural as a buffer for two well sites Oxy has been an example of someone working with surrounding landowners to maintain the character and use of the land in the area and minimize the impact of their well sites on the enjoyment of our property 3 This zoning change request clearly constitutes "spot zoning" which is prohibited in Colorado 4 This facility serves limited use in Weld County and mostly benefits the market in Lamer County, but the negative impact is here in NW Weld County and to Weld residents Tax revenue is not as great as the overall negative impact of this facility The few people that work her can be transferred to other MMM facilities easily The concrete can be supplied by many other existing facilities in the area Under current Weld Land Use regulations, this facility would not have been allowed There are industrial zoned alternatives for MMM to have this facility in Weld and the surrounding area Please recommend denial of this application Our neighborhood is tenacious and will not give up We have pulled deeply from our own pockets to finance an expensive legal battle Our county government should work for us here and not for a multi -billion -dollar corporation somewhere in North Carolina Pete Straub 303-330-6353 EXHIBIT Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 34 Re: Case Number COZ20-0004 I am writing to express opposition to the referenced case. .tl.rs v ka. MAY 13 2020 Weld County Planning Department GREELEY OFFICE In our neighborhood, Indianhead Estates Subdivision, we have been exposed to disturbances imposed by the Concrete Facility operated, illegally against court judgements. These disturbances are all and more than was purported by the Martin Marietta Materials (MMM) in its proposals to the Weld County Planning Services. We live well beyond the edge of the neighborhood where noise levels were supposed to be at their worst (in MMM's calculations). I can tell you that we are now experiencing noises from the Concrete Plant that were never even considered in MMM's calculations. We hear many loud noises from machine operation, train operation, and unknown plant warning whistles. Additionally, we can feel ground tremors presumably from train movements. These excessive disturbance levels are happening without even considering the impact of the planned asphalt production on noise, odors and health contaminants. It is small wonder that MMM (Rock and Rail) wants to 'raise the bar' on allowed disturbances seeking rezoning to Heavy Industrial. Please do not allow this case to proceed and further degrade our quality of life in our neighborhood. John and Olga Wallace 27657 Blackfoot Road Indianhead Estates Subdivision 80534 . 2 • el, • r. vtkCixt td, May 13x,020 Weld CounEE4EY iOFFICErtment GR /17A,aoao 1)-e otc,inti. )0114"" )4411 /S5SV. � �Al eo go63/ L0a2o-000'/ 4242,c ak,e) nigAnsta&-- C (Lk& ezizent., iat --to pfuieff a0.� 1anikonez„ Jai ow 0-42-/r.aLE petiita• eite tatank .uuJ )24, uyndt,)„,5 a.,,t A ;t1LIL SetinittAat4A444.4 iet- uMlF>ctot 1�'�.7�- .cLn� o.a-1=4.att- -awe/ sloe b_e L,Qz ,.,14,f eace‹- ri.1 friaat-tiLL az/ha-at v ,ttealp L1 WO-t-t-toP SC -L4/ .L6 reccP f9 \P,,,.oleniu4P vv -1,(._ 30 ciceua�azt° tas, ita.c eitsnla ,4.e-ntx °poi Sib IA -64 4-e) tek"C /*CS Mat \PSI- 1,.uw-a '� I 6 -at tiuece� 64-412-1-eutt 12-faALL r bflAe146-tlefde<Acidd ',vac x AuteitAt,5 0_4•t.,- --e-evtatuecti-d-ti it2 ji_stituciati. V1441 -LC _ u.frcul tel 4),lotAvL_ ._42Ltiz_ J41 02-a,rdi af 'SS raitizAAD AucL uete tstiv cia,e/mart;bv tka it e__ rt. May 7, 2020 EXHIBIT a 36 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 County Planning Staff, ZienCERiaLti MAY 13 2620 Weld County Planning Department GREELEY OFFICE In reference to case number CO720-0004, we are respectfully requesting that the Martin Marietta Materials (aka Rock & Rail) application to rezone their property to Heavy Industrial, 1-3 be DENIED. As a resident of Indianhead Estates, and in direct sight of this proposed asphalt plant, there is NO compatibility with this area for this type of industrial use. We are already experiencing noise, dust, and traffic from the operation of the rail loop and concrete manufacturing plant. And the arrival of the trains in the middle of the night disrupting sleep has already begun. It's hard to imagine what kind of lifestyle we'll have once the smells of an asphalt plant begin. Would you want your home to be next door to this type of industry? Please DENY this spot zoning from agricultural use to 1-3 use. Sincerely, Ed and Nancy Suppes 6801 Commanche Ct. Johnstown, CO 80534 Case # COZ20-0004 For Public Record April 29, 2020 Weld County Dept. of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 EXHIBIT 37 RE: Rock & Rail Rezoning Application case COZ20-004 HAY 13 1020 Weld County Planning Department GREELEY OFFICE We live in the lndianhead Estates West neighborhood. Our home is in the direct line of sight and sound to the proposed industrial development. Our neighborhood had been a peaceful quite place to live until the current invasion of the Rock & Rail/Martin Marietta facility. We ask that you vote no to this proposal. This proposed industrial development is incompatible for our neighborhood for the following reasons: Current incompatibility: The existing Rock & Rail/Martin Marietta facility is incompatible with our neighborhood due to the loud banging and screeching sounds from the train traffic which often occurs after midnight and before sunrise making for many sleepless nights. The increased heavy burden of traffic on Highway 34: Highway 34 is designed as an Expressway. With the increased truck traffic from the Rock & Rail/Martin Marietta site, this has turned an already burden HWY 34 into a parking lot at peak rush hour. The requested industrial rezoning would certainly create more stain on this already overburden section of HWY 34. Future Incompatibility: This type of Industrial rezoning to an I-3 could include Rock & Rail/Martin Marietta desire to build an Asphalt production facility. The 1-3 zoning could include, but not limited to oil and gas storage, biosoild and septic waste disposal, meat processing. All of these industrial activities can have a severe compatibility issues with the surrounding neighborhoods, such as noise, dust and odors. There is no right way to position an industrial site next to an existing neighborhood. Air quality and age: Recently it has come to light that persons over the age of 65 are much more vulnerable to poor air quality. 1.) Denver and the Front Range of Colorado have been exposed to elevated air pollution. See attachment #1, January 30, 2020 Denver Post. 2.) An article from the Journal of Thoracic Disease stating the adverse effects on outdoor air pollution and the elderly. See attachment #2, 3.) 50% of the lndianhead Estates neighborhood is over the age of 65, of which we are included. By allowing an Asphalt facility (or any other 1-3 business) would no doubt increase the already critical air pollution and increase the risk of serious health problems to these neighbors who are at risk. This would most certainly open up a "Pandora's Box" of environmental hazards. Should this rezoning be approved this no doubt will go down in history as the it 1 worst decision ever made by Weld County. There is no right way to do something so wrong. We respectfully ask that you not approve this application. Sincerely, Glenn and Melanie Schlotter 27700 Hopi Trail Loveland, Co 80534 TRIE DENVER POST By BRUCE FINLEY VInley@denverpostcom I The Denver Post January 30, 2020 at 6:00 a.m. Denver residents have been inhaling hazardous air pollution at elevated levels on more than 260 days a year for the past two years, federal records show, as two new studies released this week ranked metro Denver among the top 10 worst U.S. cities for air quality. People also are breathing bad air regularly in other cities along Colorado's Front Range, from Colorado Springs to Fort Collins, according to Environmental Protection Agency records. This pollution disproportionately hurts sensitive groups — people with asthma, children and the elderly — but affects all residents. Beyond respiratory problems, recent research links poor air quality to chronic inflammation and dementia. 4/29/2020 Adverse effects of outdoor pollution in the elderly attathtnuct----Wa, J oi.u"iiiil of I Iu)racic 1)i seils J Thorac Dis. 2015 Jan; 7(1): 34-45. doi: 10, 3978/j, issn.2072-1439.2014.12.10 PMCID: PMC4311079 PMID: 25694816 Adverse effects of outdoor pollution in the elderly Marzia Simons,°1 Sandra Baldaccj,t Sara Maio,t Sonia CerraL1 Giuseppe Sarno,1 and Giovanni Vieglt,2 1 Pulmonary Environmental Epidemiology Unit, CNR Institute of Clinical Physiology, Pisa (Italy), Via Trieste 41, 56126, Pisa, Italy; 2CNR Institute of Biomedicine and Molecular Immunology "A. Monroy", Via U. La Malta 153, 90146, Palermo, Italy XCorresponding author. Correspondence to: Dr. Marzia Simoni. Pulmonary Environmental Epidemiology Unit, CNR Institute of Clinical Physiology, Via Trieste 41, 56126, Pisa, Italy. Email: marzia simoni@ibero.it. Received 2014 Jul 29; Accepted 2015 Jan 10. Copyrigtt 2015 Journal of Thoracic Disease. All rights reserved. Abstract With fewer newborns and people living longer, older people are making up an increasing fraction of the total population. Epidemiological evidence shows that older -age -related health problems affect a wide and expanding proportion of the world population. One of the major epidemiological trends of this century is the rise of chronic diseases that affect more elderly than younger people. A total of 3.7 million premature deaths worldwide in 2012 are attributable to outdoor air pollution; the susceptibility to adverse effects of air pollution is expected to differ widely between people and within the same person, and also over time. Frailty history, a measure of multi -system decline, modifies cumulative associations between air pollution and lung function. Moreover, pre-existing diseases may determine susceptibility. In the elderly, due to comorbidity, exposure to air pollutants may even be fatal. Rapid and not -well -planned urbanization is associated with high level of ambient air pollution, mainly caused by vehicular exhausts. In general, there is sufficient evidence of the adverse effects related to short- term exposure, while fewer studies have addressed the longer -term health effects. Increased pollution exposures have been associated with increased mortality, hospital admissions/emergency-room visits, mainly due to exacerbations of chronic diseases or to respiratory tract infections (e.g., pneumonia). These effects may also be modulated by ambient temperature and many studies show that the elderly are mostly vulnerable to heat waves. The association between heat and mortality in the elderly is well - documented, while less is known regarding the associations with hospital admissions. Chronic exposure to elevated levels of air pollution has been related to the incidence of chronic obstructive pulmonary disease (COPD), chronic bronchitis (CB), asthma, and emphysema. There is also growing evidence suggesting adverse effects on lung function related to long-term exposure to ambient air pollution. Few studies have assessed long-term mortality in the elderly. It is still unclear what are the pollutants most damaging to the health of the elderly. It seems that elderly subjects are more vulnerable to particulate matter (PM) than to other pollutants, with particular effect on daily cardio-respiratory mortality and acute hospital admissions. Not many studies have targeted elderly people specifically, as well as specific respiratory morbidity. Most data have shown higher risks in the elderly compared to the rest of the population. Future epidemiological cohort studies need to keep investigating the health effects of air pollutants (mainly cardiopulmonary diseases) on the elderly. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4311079/ 1/16 May 8, 2020 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley CO 80631 kiSG:i V Lk MAY 13 1010 Weld County Planning pc GREELEY OFFICE f crne,it To the Weld County Planning Staff, Weld County Planning Commission, and Weld County Board of Commissioners, It is with utmost urgency and importance that I am writing this letter to you to voice my objection regarding Rock & Rail's (AKA Martin Marietta Materials) latest rezoning application with Weld County from A -Agricultural to 1-3 Heavy Industrial. The rezoning application is for property currently occupied by them at 27486 Co. Road 13, Johnstown, CO 80534 and is a continuation of Case Number COZ20- 0004. If approved, R&R/MMM intends to put an asphalt plant on the site and continue to operate the rail loop and concrete manufacturing plant. Other impacts in the area could include oil and gas storage; biosolid and septic waste disposal; meat processing; warehousing; manufacturing; and/or other heavy industrial business. If the rezoning is approved, it is also my understanding that these types of industries could then be built without public notice or input. Martin Marietta has sited the "U.S. Highway 34 corridor east of 1-25 has recently developed with a broad mix of commercial and industrial use;" however, they neglected to add that this area is located in Larimer County. R&R/MMM's encroachment has already confirmed their incompatibility and adverse impacts on the surrounding residential and agricultural community and does not conform with local zoning classifications. They have stated the "residential subdivision to the northeast of the property is and anomaly.' It is the other way around, they are the anomaly and are attempting to deviate from the original agricultural and residential zonings. Their site and surrounding area are not appropriately suited to industrial development. They do not and will not maintain and enhance the quality of life for me and Weld County citizens. I have already been subjected to increased noise and air pollution; increased truck traffic; increased rail traffic between the hours of 12:45 am and 5:30 am (which affects my sleep;) and noise and ground vibration from the unloading of aggregate from rail cars. Not only has the quality of life for myself and neighbors been adversely affected, but also our property values. I am strongly opposed to the 1-3 Heavy Industrial rezoning application and would very much appreciate your rejection of the Rock & Rail/Martin Marietta Materials rezoning application. Sincerely, gmed,i4 Judith E. Leinweber 27823 Blackfoot Road Johnstown CO 80537 May 8, 2020 Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: Case number CO720-0004 To Whom It May Concern: EXHIBIT )15 39 Cki.M'b1/L� MAY 13 1010 Weld County Planning GREELEY OFFICEy rtm8Rt I am writing this letter as a PROTEST to allowing Martin Marietta and their so-called Rock & Rail to rezone their property to Industrial 3. In their proposal, of course they point out various businesses in the area to help pump up their defense. However, what they do not point out is that these other businesses, while industrial, have a very small footprint in the area. They do not emit noise that bother neighbors, nor pollution, nor an exorbitant amount of traffic. They are light industrial neighbors, NOT Industrial 3 neighbors. The rest of the surrounding area is agricultural and residential. Their plans are NOT compatible with the surrounding area, no matter what they are trying to tell you. We already have more traffic, more noise, and more dust, and this plant never did have legal permission to build and exist as they do. But money talks, I know. Knowing the "right" people on the board in the past helped as well. But please listen to your constituents and do NOT allow them to bring in MORE....dust, noise, traffic. Last Saturday morning (May 2), I was out on my porch enjoying some coffee with the backdrop of trains cars clanking. This week my allergies are worse with all the wind and their dust. They try to "sneak" things in, as they have brought 8 out of 10 rail cars in so far this year between 12:45 a.m. and 5:30 a.m. But they cannot "sneak" in noise and pollution, and during the day, the traffic is noticeably more dense (until the past 2 months COVID quarantine). As it stands now, Martin Marietta is having difficulty meeting the accepted standards on the perimeter of the neighborhood for dust and noise pollution. OF COURSE they want to re -zone, because they do not want us as watch -dogs to monitor them and force them to comply! They have already tried to call us off by asking us to sign an agreement to leave them alone. If they succeed in changing their zoning, they can make their asphalt plant, and can built anything they want without further notice or public input. That could include ugly oil and gas storage, smelly biosolid and septic waste disposal, even meat processing. Please don't let this area of Highway 34 be the ugly introduction to Greeley and the rest of Weld County. Sincerely hoping you will read this and listen, enyY 27875 Arikaree Rd., Johnstown, CO 80534 May 8, 2020 Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: Case number COZ20-0004 To Whom It May Concern: sis EXHIBIT 40 *LtC v NAY 13 2020 County planning Department GRE weld ELEY OFFICE O I am writing this letter as a PROTEST to allowing Martin Marietta and their so-called Rock & Rail to rezone their property to Industrial 3. In their proposal, of course they point out various businesses in the area to help pump up their defense. However, what they do not point out is that these other businesses, while industrial, have a very small footprint in the area. They do not emit noise that bother neighbors, nor pollution, nor an exorbitant amount of traffic. They are light industrial neighbors, NOT Industrial 3 neighbors. The rest of the surrounding area is agricultural and residential. Their plans are NOT compatible with the surrounding area, no matter what they are trying to tell you. We already have more traffic, more noise, and more dust, and this plant never did have legal permission to build and exist as they do. But money talks, I know. Knowing the "right" people on the board in the past helped as well. But please listen to your constituents and do NOT allow them to bring in MORE....dust, noise, traffic. Last Saturday morning (May 2), I was out on my porch enjoying some coffee with the backdrop of trains cars clanking. This week my allergies are worse with all the wind and their dust. They try to "sneak" things in, as they have brought 8 out of 10 rail cars in so far this year between 12:45 a.m. and 5:30 a.m. But they cannot "sneak" in noise and pollution, and during the day, the traffic is noticeably more dense (until the past 2 months COVID quarantine). As it stands now, Martin Marietta is having difficulty meeting the accepted standards on the perimeter of the neighborhood for dust and noise pollution. OF COURSE they want to re -zone, because they do not want us as watch -dogs to monitor them and force them to comply! They have already tried to call us off by asking us to sign an agreement to leave them alone. If they succeed in changing their zoning, they can make their asphalt plant, and can built anything they want without further notice or public input. That could include ugly oil and gas storage, smelly biosolid and septic waste disposal, even meat processing. Please don't let this area of Highway 34 be the ugly introduction to Greeley and the rest of Weld County. Sincerely hoping you will read this and listen, C Crit 27875 Arikaree Rd., Johnstown, CO 80534 EXHIBIT 1 41 May 7, 2020 Weld County Department of Planning Services 1555 N. 17th Avenue ;ECieg1%L:) NAY 13 2020 Weld County Planning uepartment GREELEY OFFICE Greeley, CO 80631 Re: Case Number COZ20-0004 Please make this letter part of the permanent record. To whom it may concern: I wish to express my opposition to the rezoning of the property referenced in the application above. First of all, Martin Marietta, aka Rock and Rail LLC, should not be allowed to be operating right now. Their 2015 USR was reversed by the Colorado Court of Appeals and yet they were allowed to continue construction and operations to this day while everything is being litigated. We have had to put up with the traffic, dust and noise that they said would be maintained within the noise limits of their operations. From the noise monitoring done from our neighborhood, Indianhead Estates, it has become clear that they constantly exceed those limits. And the noise at night time is very disturbing. We like to keep our windows open at night for the fresh air. Having most of their trains arrive anywhere from midnight to 6:00 a.m. wakes us up. It's very aggregating. We constantly question how there was so much opposition to granting a USR in the first place, even by the Planning Commission staff and Commission itself, yet money and the power of big business was able to influence county commissioners into giving them what they wanted despite the concerns of the community surrounding the area and county departments that exist to give guidance to the board of commissioners. The current operations are bad enough as well as illegal. Granting a "spot zoning" to 1-3 has serious potential implications of undesirable future additions that could take place on the property if the rezoning were approved and there would be no public input allowed. Please deny this rezoning application. Sincerely, k A Linda Liggon 6900 Commanche Court Johnstown, CO 80534 May 7, 2020 EXHIBIT a 42 Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 :tCcr'if�.� MAY 13 1010 Weld County Planning Department GREELEY OFFICE Re: Case Number COZ20-0004 Please make this letter part of the permanent record. To whom it may concern: This letter is to serve as expressing my opposition to the approval of the "Change of Zone Application" in the above referenced case number. Technically, the construction and operations that are currently underway and have been since 2015 should not even be allowed. Even after overwhelming opposition to approving a USR for Martin Marietta Materials, in 2015, by surrounding residential areas, businesses, cities, municipalities, the Weld county Planning Commission staff and the Planning Commission itself, the Weld County Board of Commissioners surprisingly voted unanimously to approve the USR. After legal battles that wound up going to the Colorado Court of Appeals, Martin Marietta Materials (MMM) should not have been granted the USR. However, once again, surprisingly, the Board of County Commissioners (BOCC) has allowed construction and operations to continue even though there was no permit to operate and they were in violation of the current zoning laws. As a last ditch effort to continue operations and get around the opposition to their existence, selling the business to Rock & Rail LLC seemed like a good idea. Now that MMM/Rock & Rail LLC is faced with a law suit and the possibility that they may not be able to operate a concrete batch plant and future asphalt plant under the guise of a railroad company, they have once again tried to maneuver around the system by getting the zoning changed before the case goes to court. If the USR wasn't bad enough, which was eventually reversed and withdrawn, why on earth would rezoning the property to 1-3 even be considered by the county. The potential negative ramifications of allowing the "spot zoning" to I-3 are overwhelming. Not to mention that "spot zoning" is illegal. Martin Marietta/Rock & Rail has already shown, since 2015, that they are not a good neighbor and are not compatible with the surrounding area. They have used money and corporate influence to bully their way into our area. Their presence has adversely affected the quality of life in many different ways; from noise pollution all hours of the day and night, dust from the operations and potential smell of a future asphalt plant. The change of zoning application should be denied. Sincerely, facet? Larry Sipes 6900 Commanche Court Johnstown, Colorado 80534 EXHIBIT a 9 43 Ms. Angela Snyder Weld Count Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: COZ20-0004 Gerrard Investments, LLC Application for Change of Zone Dear Ms. Snyder: Ellen Eliason Kisker 6681 Apache Road Johnstown, CO 80534 May 7, 2020 MAY 13 1010 Weld County Planning Department GREELEY OFFICE I am writing to urge you to recommend denial of the application by Rock & Rail to rezone the pro ,:'ri on County Road 13 near Highway 34 to I-3 Heavy Industrial. The application for rezoning barely acknowledges the adjacent well -established residential development of several hundred residents and glosses over the severe incompatibility between 1-3 Heavy industrial and residential land uses. In fact, the current operation already demonstrates the incompatibility of heavy industry with the adjacent residential neighborhood. Other potential hetivy industrial land uses that would be allowed without public input if the rezoning is approved could U even more incompatible. The application falsely claims that the noise and visual impacts of the current facility have been successfully mitigated. Rock & Rail claims that berming has protected the surrounding properties from visual intrusions. That is simply not true. The berm is not high enough to shield most of the facility from many neighbors, as a drive through the neighborhood makes clear. More importantly, noise monitoring has proven that the current facility cannot meet noise limits that might make it compatible with its location near a residential neighborhood. Two types of noise disturb the neighbors. The concrete manufacturing plant frequently makes get -under -your skin grinding -type noises starting early in the morning, destroying the peaceful environment with noise that exceeds residential limits. And the noise from trains arriving, unloading, and leaving frequently disturbs life in the neighborhood. The facility also has not limited operation to hours that might make it compatible with a residential neighborhood. For example, residents along the closest edge of Indianhead Estates have documer i l ec the fact that 8 of the last 10 trains have arrived between 12:45 AM and 5:30 AM, making noise that disrupts their sleep for an extended period. Plant operations, with grinding noises that exceed residential noise limits, have started on some days as early as 3:00 AM. Rock & Rail's application is misleading when it asserts that "Land uses surrounding the property generally consist of industrial and agricultural uses." The application mentions businesses that are some distance away and nearly ignores an adjacent business with which heavy industry is extremely incompatible (Rockin S Ranch, a wedding and event center). And by combining industrial with agricultural uses in the statement, Rock & Rail conveys the sense that the area is already industrial. when that is not the case Most of the businesses are small, low impact operations, and the charac ter of the area is agricultural, not industrial, as any reasonable person driving through the area can see Rock & Rail is attempting the old strategy of sin now and ask forgiveness later Martin Marietta Materials built the concrete manufacturing plant while its USR approval was being challenged, accepting the risk it was taking on Now that the concrete plant is built, Rock & Rail is trying to use its existence to prove that rezoning is appropriate When the neighbors challenged approval of the iii l USR allowing the facility, the CO Court of Appeals ruled that the decision to approve the USR was arbitrary and capricious, because MMM's own analysis showed that the plant would not be able to meet the noise requirements included in the development standards As noted above, experience of plant operations confirms that the facility can't (or won't) meet reasonable noise thresholds that might make the operation compatible with surrounding land uses The existence of the concrete manufacturing plant that is operating despite the ruling of the CO Court of Appeals and strong objections of surrounding communities and neighbors should not be used as justification for continuing to operate and potentially expand to more -incompatible uses I urge you to focus on the intent of the Industrial Zone (Sec 23-3-300), which is in part to "reduce the adverse impacts of industries on surrounding, nonindustrial properties " The proposed rezoning to 1-3 Heavy Industrial will have a clear adverse impact on surrounding nonindustrial properties, as demonstrated clearly by the incompatibility of the current concrete manufacturing operation with the adjacent residential neighborhood Thank you for your consideration Sincerely, Ellen Eliason Kisker May 11, 2020 Weld County Department of Planning Services 1555 North 17th Avenue' Greeley, CO 80631 RE: Case Number COZ20 — 0004 Dear Weld County Planning Services, RECEIVED HAy13 10?0 Weld County Planning GREELEy OFFICE rtmenr EXHIBIT 44 My wife and I live exactly 2600 feet from the center of the current Martin Marietta Materials (aka Rock & Rail) facility on Weld County Road 13. We are strongly opposed to the application to rezone their property to an Industrial 3 Zone. Since this facility began operation there has been numerous unit trains (8 trains thus far this year) delivering aggregate to the facility in the early morning hours between 12:45AM and 5:30AM. The result has been loud train horns and squeaking rail car brakes for prolonged periods of time resulting in a loss of sleep. There has been numerous times we have observed excessive fugitive dust leaving the referenced property. As these unit trains are being off-loaded, excessive noise is heard coming from the rock crushing operation as the rock crusher can be heard inside of our home with the windows closed. As I am sure you are aware, this facility was approved by the WCBOC during the USR application process, following your Department's recommendation to deny the request. The property to the north of the Rock & Rail facility was submitted for a re -zoning request to 1-3 and was also denied. In my opinion, now that Rock & Rail assumes their case in the upcoming Federal Court case may found in favor of the plaintiff, Rock & Rail is now pursuing a change of Zone strategy. Please consider our request to deny Rock & Rail's request for re -zoning, and also recommend to the WCBOC the application for re -zoning be denied. Thank you for your consideration:' Sincerely, ano/er Donald E. Anderson 6897 Commanche Ct. Johnstown, CO 80534 27687 Hopi Trait Johnstown, CO 80534 12 May 2020 Re: Case COZ20-0004 Dear Ms. Snyder: R ECEIVEO HAY 13 2010 EXHIBIT 1 45 Weld County Planning Department GREELEY OFFICE Rock & Rail's application to Weld County for the subject rezoning identifies 5 Weld County businesses located close to the proposed Industrial Zone as evidence that the 1-3 zone would be compatible with the surrounding area: Pet Crematorium/ RV storage area, USR 15-0040 A Concrete, USR 16-0010 W3 Legacy LLC fly ash transloading facility, USR 15-0010 Conference Center, USR 15-0028 Construction business, USR 15-0075 A search of the Development Standards for these USRs reveals the following: USR Document Noise limit 15-0040 20153646 Unspecified, 55/50 dB(A) 15-0044 20160083 Unspecified, 55/50 dB(A) 16-0010 20161723 Commercial, 55/50 dB(A) 15-0075 20160731, 20160596 Residential, S5/50 dB(A) 15-0028 20151533 Unspecified, 55/50 dB(A) Since the proposed 1-3 zone would be permitted to emit 80 dB(A) daytime, 75 dB(A) nighttime, it would be incompatible with these surrounding uses. I should point out that USR 15-0028, Rockin' S Ranch, is a defendant in current litigation in Federal District Court regarding the ICCTA status of the Rock & Rail facility. Sincerely yours, Gary L. Oplinger For Public Record R E : COZ20-0004 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 asnyder@weldgov.com Dear Weld County Commissioners, EXHIBIT !J 9 46 I live in the vicinity of the land that has been proposed to be rezoned from Agricultural use to Heavy Industrial uses. I would like to voice my opposition to the proposed rezoning application and ask that it be denied. Changing the zoning to 1-3 would drastically alter the available land uses and be completely incompatible with the local farming operations, small businesses and importantly it would negatively impact the right of quiet enjoyment of the many families whose homes are adjacent or near this property. There are no other industrial zoned properties in the area nor should one be allowed to be added next to preexisting residential properties. Homes that are located near heavy industrial operations are much less desirable and a change in zoning would decrease properties values surrounding any heavy industrial zone change. The increase in dust, noise and traffic will negatively impact the health and well-being of the entire community. Please consider that the needs of the many families in the area out weigh the desired zoning change from the one large entity that has opportunities for profit making in other areas. Thank you for your service to our community and your thoughtful consideration. Sincerely, Anita R Comer 503 N CR 3 Johnstown, CO 80534 May 12, 2020 Weld County Commissioners Attn: Angela Snyder, Planner EXHIBIT 47 Holly Cummings 26700 Weld County Road #13 Johnstown, CO 80534 Re: Case COZ-004 FOR PUBLIC RECORD Dear Weld County Commissioners: I am in COMPLETE OPPOSITION to the proposed zoning change from agricultural to heavy industry 13 at the Rock & Rail site. If this rezoning is approved, it would fundamentally change the rural identity of the area. A quick visit to the site or a look on the map shows the Rock & Rail site is surrounded by farms. I've included a plat, just in case you can't make it out. It reminds me of the game "What Doesn't Belong." It seems like a zoning change to heavy industrial in an agricultural area doesn't make sense. Within the area identify above is high quality farmland, including an organic farm not even %2 mile south of the site. If you change the zoning, you will lose an exceptional resource and will change the identity of the rural area. My concerns are as follows for rezoning the site to heavy industrial 13 • Sound o Above residential limits o All times throughout the day • Rock & Rail has shown no care or concern for residents and farmers in the surrounding area • Once this door is open, our entire area will change Already there is constant sound occurring already at the site During the 100+ boxcar trains arriving there is an awful, extremely loud braking sound that happens during the entire process of the train coming into the site My greatest concern is this site was already allowed for Martin Marietta, but somehow it is now under Rock & Rail who is requesting a zoning change to heavy industrial 13 I would greatly hope you would have empathy and understanding of what this change would cause to our area Already, our neighbor Chris Friede is unable to build her wedding venue that was once ranked one of the top wedding venues in Northern Colorado The organic farm once had a thriving business venture with Mother Love is now no longer Now they are hoping to be able to retain their organic distinction My parents purchase the property in the late 90's They had saved and saved and looked for an extremely long time On this property, they built their dream home, by themselves On this property, they buried our beloved dog Joy, who was our lifelong pet On this property, my sister married her husband And on this property, my nieces run amuck, learn about chickens, farming, planting a garden and trees and are able to be outside without a worry in the world Please allow them to continue to live this carefree life Please deny case COZ-004 for us and our community Thank you for your consideration Holly Cummings Angela Snyder From: Dana Burns <dalycabu@yahoo.com> Sent: Wednesday, May 13, 2020 10:25 AM To: Angela Snyder Subject: case # COZ20-0004 Attachments: case 3 COZ20-0004.pdf Follow Up Flag: Follow up Flag Status: Flagged EXHIBIT 1 48 a Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Ms. Angela Snyder, Please see and print my attached letter of opposition to the rezoning to 1-3. I am happy to send it by post, but I believe the deadline is tomorrow? I have pasted the link that I referred to in the letter below as you will be able to click on it more easily in this form. Thanks so much!! Dana Burns President's Council Profile: Bob and Kitty Wilson President's Council Profile: Bob and Kitty Wilson 1 Dana L Burns DVM N9565 Tamarack Rd Eagle, WI 53119 May 12, 2020 case number: COZ20-0004. Dear Ms Angela Snyder and Weld County Planners and Staff, On behalf of my mother, Barbara Uhrich Calkins and myself (landowners) I want to express my very strong opposition of the re -zoning 1-3 Re -zoning is an absolute affront and threat to our organic farm on the Big Thompson watershed located just hundreds of feet from the proposed rezoning Rezoning further threatens the health, integrity, and appeal of one of the most beautiful areas in the country, our national and local food security and capacity of our country, our rights as landowners to make full use and enjoyment of our property, and the valuable historical agricultural character of the area, just to name a few things The norther front range of Colorado is one of the most appealing and sought-after regions of the country The views and landscape are stunning There is widespread recognition of the value of this area to conservation for human, wildlife, and ecological health One example can be found on this link https //www ducks org/Get-Involved/Major-Sponsors/Presidents- Council-Profile-Bob-and-Kitty-Wilson featuring our neighbor farm who has a conservation easement with Ducks Unlimited My mother (Barbara Uhrich Calkins, now almost 91), are working with multiple interests and groups on a regional effort to augment conservation on our farm and in the area This area could continue to be the envy of the world and attract well - planned development in the area dovetailing and enhancing the area's natural bounty or it could become an armpit of the world like Gary Indiana, or Flint Michigan, etc I hope you will join with us in seeing the greater vision My great grandparents emigrated to the Greeley/Loveland are in the early 1900s In fact, for a short time they inhabited the very small house that is still on the property in question They came, in large part, because of the tremendously fertile, quality farmland in the area Both sets of great grandparents and their children (one of whom also had a farm on the land in questions), were tremendously successful farmers, building wealth that was passed down to multiple generations by raising beef, dairy cattle and crops The last farmer on our farm said our farm was the best farmland he had farmed in his experience of farming in California, the Midwest, and out East With each crisis (2001, 2007-8, and the present Covid pandemic, Americans again realize how critical it is to have reliable, quality food This cannot happen if we destroy all of the farmland Heavy industry poses a great threat to our organic farming operation and surrounding neighborhood farms in multiple ways including air quality, traffic, noise, and soil quality In the interest of time I will end there Please strongly consider my request to deny rezoning We would love to be in conversation with you about other ideas for the area Sincerely, Daum 4 & 4 ctkESSEi-' Le FARM Case COZ20-0004 For Public Record Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 Dear Weld County Commissioners, EXHIBIT 49 For over three decades Cresset Farm Development Initiative (CFDI), a 501c3 non-profit entity, has been involved in the management, organic certification and preservation of the Historic Uhrich farm located at 503 S. County Road 13. This farm is near land that has been submitted to your department to be rezoned to 1-3. We are currently working on putting the land into a farm conservation program to protect farm land for future generations, for wildlife and for providing a venue for future farmers to learn about farming, for children to e xperience "life on a farm" and other farm based educational programs. The current farm production is based u pon a cooperative of farmers that collectively raise cattle, sheep, chickens and pigs along with grain and hay crops as well as gardens for people. We strongly object to the rezoning of land adjacent to this beautiful historic farm. This farm stands as an e xample of how farming was the backbone of growth for the region since the first homesteaders came to the area. We intend for this land on the Big Thompson corridor to be a beacon of hope for remembering the past and educating the future inhabitants of the area about the importance of farming as well as preserving critical farmland and habitat. If you allow a mega entity to push their agenda of changing the area into a heavy industrial region this will drastically change the landscape and much of the farming beauty of the area will be permanently lost. The owners of the surrounding area have spent lifetimes protecting and preserving farm land and it will be a travesty to dishonor their farms and legacy. It will specifically add an unwelcome eyesore to the area along with adding a risk of contamination to our organic products from the dust generated by industrial activities. Please do not allow agriculturally zoned property to be rezoned to industrial when it is surrounded by farms, residential and other much less intensively used land. Sincerely, Anita R Comer, CFDI Board Chair EXHIBIT Dear Weld County Planning Staff, 50 As a 4th generation future land owner (along with my sister who shares these sentiments) of my great-grandparents farm in Weld County, I am writing to express my strong opposition for Martin Marietta Materials proposal to rezone land use (Case number: COZ20-0004). The agricultural identity and history of this land is a national treasure. For me personally our family farm is a living history of early settlers and the hard work ethic and values upon which this country was built. Even in my short lifetime, I have witnessed the ever-increasing development sweeping Colorado. Agriculture is integral to society yet increasing industrialization, such as what this proposal could permit, threatens farms. Our family farm is Organic. The negative impacts associated with industrial development (such as air pollution, water pollution, soil degradation, etc.) in the area will degrade our farm. It is my firm opinion that the wishes of the families and people living in Weld county should be valued over a corporation's wish to make more money. As an ecologist, I am concerned about the effect that industrial development would imprint on the environment. Pollution in any form (air, water, noise, etc.) will affect the area's wildlife, overall biodiversity and ecosystem function and resilience. Invaluable ecological services such as the water cycle, pollination, climate control, etc. depend on a healthy ecosystem and are of a much greater value (even economically speaking) to Weld County than this proposed industrial development could ever match. Hence I ask of the Weld County planning staff to value the wishes of the county's residents, the agricultural identity and history of the region and the critical importance of the areas ecological services above short term incentives offered by industrial development. Thank you for your attention. Sincerely, Zuri Burns 6681 Apache Road Johnstown, CO 80534 11 May 2020 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: Weld County Land Use Case COZ20-0004; To be included in the record Ms. Snyder: With this letter I am requesting that the staff of the Weld County Department of Planning Services recommend denial of the Rock & Rail (R&R) application to rezone the former Martin Marietta Materials (MMM) site on WCR 13, 0.5 miles south of US 34, to Heavy Industrial, 1-3, Case COZ20-0004. When MMM lost the court case challenging their Use by Special Review (USR) at the Colorado Court of Appeals based on clear evidence that the operation was incompatible with the surrounding uses, they cynically sold the operation to their wholly owned subsidiary, Rock and Rail, for $10, and began operating the concrete manufacturing plant under the Interstate Commerce Commission Termination Act (ICCTA). That effort to evade local and state land use regulations is currently being challenged in US District Court. R&R must now anticipate an adverse ruling by the U.S. District Court, so they are attempting once again to bypass the entire process, this time by applying for rezoning to Heavy Industrial, 1-3. Rezoning is the only remaining way to eliminate any scrutiny of their impact on the neighboring property owners, since they would avoid any restrictions that could be imposed by Development Standards if this were instead a USR permit. In their application, Rock & Rail attempts to justify their application by misrepresenting the character of the area surrounding their proposed operation. For example, they minimize the significance of the Indianhead Estates and Indianhead Estates -West residential developments, although many of those homes have been in place for over 40 years, with most having been in place for at least 10 years. Whatever the process might have been that resulted in the construction of what are now about 100 single family homes is completely irrelevant. The nature of the area was established at that point, and cannot simply be "wished away" by R&R. In addition, R&R completely ignores the presence of the Coyote Ridge residential development that is abou: a mile away or, Lakota Lakes, which is within 2 miles. And, although they pay lip service to the Rockin' S Ranch wedding and event venue with its approved USR, the true impact is again minimized as they claim that the surroundings are largely industrial. Of course, MMM attempted the same misrepresentation at both the Planning Commission and Board of County Commission hearings in 2015. But, as in 2015, the R&R claim that the area is industrial is simply false. There are no other industrially zoned parcels within at least a mile. And, although there are some Weld County USR's in the area that include commercial and light industrial uses, nothing nearby even approaches the intensity of the proposed 1-3 zone. The Weld County Code (Section 23-2-30.A.2) requires that "The uses which would be allowed on the subject property by granting the change of zone will be compatible with the surrounding land uses." However, a similar case was discussed by the Planning Staff on 5 May 2020 at the Planning Commission hearing for another rezoning attempt, Case # COZ20-0002 In that case, which also involved an agricultural property with several nearbyUSR permits, the Staff recommendation for denial was clear "The zoning on all adjacent properties is A (Agricultural) While some of these (nearby] uses are Industrial they are allowed by the Use by Special Review process The USR uses are non -permanent and may be removed by action of the Board of County Commissioners or vacated per request of current or new property owners Therefore, the uses that would be allowed on the subject property will not be compatible with the surrounding land uses "—Staff Comments, COZ20-0002 Clearly, if that proposal, which would have resulted in a change from Agricultural to 1-2 was incompatible with the surrounding agricultural and residential uses, then the current proposal, COZ20-0004, which would result in even more impact from the 1-3 zone district, must be even MORE incompatible, so consistency, fairness and equal protection of the neighbors surrounding the R&R property demand a recommendation for dental In addition to the obvious incompatibility of a rezoning to 1-3, as well as the virtual certainty that it would be a "spot rezoning" since it would be for the sole benefit of the property owner without consideration of the impact on the surrounding uses, the 1-3 rezoning attempt itself is indicative of the operational approach of this company Instead of simply attempting a rezoning to light industrial, I-1 together with a USR application, which would have allowed the proposed uses, but also would have resulted in the imposition of Conditions of Approval, Development Standards and limits on the allowed uses, R&R is instead trying to continue their completely unconstrained operation In addition to allowing their supposed aggregate, concrete, asphalt and rail operations, an 1-3 parcel could be transferred to a different owner that could pursue even more intensely invasive activities If this cynical attempt at rezoning is successful, then there will be no consideration given to the impact on the surrounding properties, either by R&R or other future owners Although R&R claims to have mitigated their current uses, nothing could be further from the truth They routinely operate at all times of day and night, starting concrete and aggregate operations as early as 3AM, including on weekends In addition, the neighbors have documented regular violations of the residential noise limit, to which MMM agreed in the original USR, Development Standard 23 R&R has also had violations of dust emission regulations and has made no attempt to communicate with the neighbors using the Community Work Group established by MMM, also a Development Standard Despite MMM promises to the contrary, R&R has generally been an invasive operation with substantial negative impact since it began in October 2018 The Planning Department must not be fooled by any circular logic that attempts to argue that since the operation is here, then it must stay here The Colorado Court of Appeals ruled that this operation is illegally incompatible with the surrounding properties, and it remains incompatible today Allowing any change to the Heavy Industrial zone would exacerbate that incompatibility and must not occur Respectfully, g....04)64 -- David W Kisker From: Kate Brown To: Angela Snyder Subject: Case COZ20-0004 Date: Thursday, May 14, 2020 2:08:34 PM EXHIBIT 52 Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. I am writing this to voice my very strong opposition to the Martin Marrieta Materials (AKA Rock and Rail) request for zoning change to Heavy Industrial 1-3. There are many reasons why I believe this would not only impact the quality of life even further than the current Rock and Rail, but also make living conditions even worse than they already are. 1. Currently Rock and Rail causes constant nonstop noise pollution all day at least five days a week. I live far to the east of the plant, within IndianHead Estates. The constant noise includes beeping for backing up, dumping of rock products, moving of machinery, clanging of equipment and endless sounds of equipment moving in and out of the facility. This noise starts as early as SAM and continues frequently into the early evenings. This noise is a nuisance and ahs distracted from our lovely subdivision. sometimes we have to go inside during the summer evening hours just to escape the constant noise. Changing the zoning will only make the noise situation worse....MUCH worse. I am not even a bordering property along the Rand R facility. If you would like I could record the sounds of this constant non- stop nuisance. 2. I drive west on 34, turning onto north CR 13 5 days a week at about 7AM. With out exception, there are huge hauling trucks from the RandR trying to either cross over to NCrd 13 or turning left onto Highway 34. It is a weekly if not more so occurance that the large hauling trucks press the traffic light and go ahead at the last minute. In other words they are using the yellow light as a green light. This intersection is now hazzardous and will only become more deadly. 3.Since Rand R started operations has started, the air quality has diminished. How do I know this? All of my west and south facing windows have dust on the outsides of the windows. weather permitting I wash them at least once a month because is is so noticealble from the inside. It is like a haze has covered over the glass. I never had this problem until the plant opened up. I do not believe is would be in anyone's best interest except this selfish company to allow for further development of this land by granting this zoning request. The ONLY winners would be Martin Marietta. The rest of the entire area would suffer negative consequences even beyond what we are already facing every single day, 365 days a year. I am sure that they are claiming that without this there will be an impact on new construction. That is an out and out lie. Because I am in quarentine I have no means of mailing a copy of this to you so I would ask that you count it in your letters of opposition. Kate Brown 27477 Hopi Trail Loveland, CO 80534 970-481-4625 From: Jim Bo e To: Angela Snyder Subject: Weld County Rezoning Application Case COZ20-0004 Date: Thursday, May 14, 2020 3:23:12 PM EXHIBIT 53 (:aution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is sate. Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Ave. Greeley, CO 80631 I am opposed to the rezoning of Rock&Rail/Martin Marietta land to Heavy Industrial 1-3 (Case COZ20-0004). Associated noise and dust are incompatible with nearby domestic farming and organic agriculture. Zoning of I-3 would open the area to potentially even worse impacts, such as that of an asphalt plant. James Bole Visitor/Friend of Area Farmers EXHIBIT 17 54 2 Dear Weld County Planning Commission, 5-14-2020 I am writing to request your opposition to the Weld County Rezoning Application Case COZ20-0004. Rock & Rail LLC and/or Gerrard Investments LLC property located at 27486 CR 13 & 6433 CR 56 from zoning A to 1-3. An 1-3 Zone is inconsistent with the current and future use of this area. This property abuts the Indian Head Estates residential neighborhood and agricultural land. This property is in an area that is projected for urban and residential development not industrial development. Heavy industrial use of this property has already negatively impacted this area by adding increased truck traffic, train traffic, dust, odor and noise pollution. The building of the Martin Marietta plant a few years ago was grossly misplaced in this agricultural and residential area. This zoning change will further negatively impact the quality of life in this area. The enjoyment of a peaceful, quiet quality of country living and the potential to impact property value has been affected since this company has moved into our neighborhood. I am asking for your careful consideration as you hold the future of the quality of life in this neighborhood your hands. Respectfully, Lee Anne Rosenquist 27740 Blackfoot Rd Loveland, CO 80534 From: )acquelyn Ross To: Angela Snyder Subject: COZ20-0004 Opposition Date: Thursday, May 14, 2020 3:45:34 PM EXHIBIT 55 Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Jacquelyn Ross 6190 County Road 56 Loveland, CO 80534 (970) 214-6396 acquelyn ross08Pgmai I.com May 10, 2020 Angela Snyder Weld County Planning & Building Department 1555 N 17th Ave. Greeley, CO 80631 R E : COZ20-0004 Dear Angela, I am a long-time resident and neighbor of Weld County, and I am writing to express my concern and opposition to the recent rezoning proposal from Agricultural to 1-3 (Heavy Industrial) proposed by Gerrard Investments, LLC, c/o Rock & Rail, LLC. I oppose the rezoning of COZ20-0004 parcel due to many reasons. The first being the increased truck traffic on County Road 56 and County Road 13. County Road 56 is currently a single lane dirt road that does not allow for multiple large trucks to pass by each other without going in the ditches. The increase in truck traffic will create additional dust, use of Jake breaks, and increase speeds on the road. Large Semi Trucks and passenger vehicles continuously drive 50-60 mph between the two railroad tracks on County Road 56. Due to the increased traffic and speeds the railroad tracks on County Road 56 and County Road 13 to have major potholes right next to them, which are currently n ot being maintained. County Road 13 (Colorado Blvd) is having the same issue due to becoming a major thoroughfare for multiple drivers within Larimer and Weld County. There have been multiple accidents at County Road 13 and Highway 34 for north/southbound drivers not having a turning lane o r signal allowing safe crossing across Highway 34. The brief turn signal going north, multiple drivers going east and west run the stoplight, making it even more dangerous to cross. Next, I oppose this request due to the increased noise and smells from the site occurring 24/7. The rail line currently used by Martin Marietta Materials unloads and idles the trains in the middle of the n ight and early morning. Being in close proximity (within 500 feet) of the loading and unloading zone our home constantly hears the idling of the trains and hears when the trains are unloaded. This has caused multiple nights of restless sleep for my young child and parents. We are located directly south of the location and when it is windy, we constantly get burning smells from the current Martin Marietta facility. It is known that it will cause myriad pollutants that decrease air quality. This causes my asthma to become worse and does not allow my daughter and future children the ability to play outside. We will constantly be breathing in the harsh pollutants put into the air from these facilities if rezoned to Heavy Industrial. I grew up in the house next door and chose to raise my children in the country, where it is safe, quiet, and close to her grandparents With the increased traffic, train, and truck noises from the proposed rezoning location, it is not the safe, quiet neighborhood it used to be Are the traffic, pollution, deaths and injuries from accidents, invasion of home, and increase unkept road work worth it? Sincerely, Jacquelyn Ross 0 Janet Ross 6248 CR 56 Loveland, CO 80534 May 8, 2020 Angela Snyder Weld County Planning Department 1555 N 17th Ave Greeley, CO 80631 Rail LLC Case #COZ20-0O04 Gerrard Investments LLC c/o Rock & Ms Snyder, I would like to voice my concerns against the approval of this Case. I live just south of this property and since the Commissioners approved the USR, my road has increased 10 fold in traffic and noise. The large trucks barrel down the road on the straight stretch in front of my house, except Sun Co who enforces a low speed limit on their vehicles. Other trucks will use their Jake brakes which is noisy. With this traffic there are days when you can't see the other side of the road with the dust. I don't want the road oiled or paved, just a lower speed limit. With the Rock & Rail, they have started up the concrete plant. The trains idle at all times of the night making it difficult to sleep and definitely does not allow any windows to be open at night. If they add heavy industrial to the mix, the noise will be constant, the air quality will deteriorate which affects our quality of country life. The overall traffic on CR 13 has increased. The frontage road traffic makes a u -turn at the medium by the light. Highway 34 traffic runs the red light to beat the light. The planning department/commissioners turned down the USR by Hwy 34 to stop the transloading facility. This is not compatible with our neighborhood. Heavy industrial would overpower our neighborhood with additional trucks, asphalt plant, and opens the door for transloading facilities, etc. The planning department got it right the first time when they recommended denial of Martin Marietta's USR. Please do the right thing and recommend denying this request. I will be attending all meetings regarding this application and would appreciate receiving all notices regarding this request. Our neighborhood has been fighting Martin Marietta for 5 years and we are now in federal count. Please take into account our agriculture, the land left in agriculture g culture and stop this madness. I appreciate your time and thank you for listening. g Sincerely, Janet Ross May 14th, 2020 Weld County Department of Planning Services Ms. Angela Snyder 1555 N. 17th Ave. Greeley, CO 80631 EXHIBIT 57 Case Number:COZ20-0004 Dear Ms. Snyder: We oppose the 1-3 zoning proposal by Martin Marietta Materials (aka Rock and Rail). The rezoning would not be cornpatiable with the land uses in the area. The MMM property boarders the southern property line of the Indianhead Estates Subdivision that was established in the 1970s. Currently there are trains that arrive on the site during all hours of day and night. There is concrete grinding and train unloading all during the day and night. The wheels of the train squeak everytime the train is moved on the tracks. There are sound meters located throughout the Indianhead Estates and the noise exceeds the residential noise standards on a daily basis. If approved, MMM intends to construct an asphalt plant on site and continue with the gravel unloading, cement plant and concrete grinding. The asphalt plant would be devistating to the air quality of the surrounding property owners. Again we strongly oppose the rezoning by Martin Marietta Materials (aka Rock and Rail). This type of zoning should never be allow next to a well established subdivision. Regards, Mel Bicking 6690 Lakota Ct. Johnstown, CO 80534 May 11, 2020 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 COZ20-0004 Dear Ms. Synder, EXHIBIT 8 RErFIVED MAY 15 2020 k« CM� Planning Department CAL LEY OFFICE I am writing in opposition to the 1-3 rezoning proposal submitted by Rock & Rail/Martin Marietta Materials. I think it would not be in Weld County's best interest to have the first thing people see as they pass from Larimer to Weld County be an 1-3 enabled industrial site. With that zoning the noise, dust, and traffic issues that already exist would be worsened. I live in Indianhead Estates east and can say that the noise is an increasing problem. As 1 take many walks in the neighborhood, I have noticed a definite uptick in the amount of noise coming from the current Rock and Rail sites even though they are supposed to adhere to many noise standards. If those noise standards are relaxed and/or removed it would pose increasing difficulty for the people of Indianhead to enjoy the homes they have worked so hard for and that were here BEFORE Rock and Rail was; not to mention getting a good night's sleep with the rail traffic coming and going. Also, the dust and particulates in the air pose an additional problem. As someone who suffers from allergies the operations nearby have caused me to have to increase my medications. I have more frequent problems with eye irritations and my doctor has recently had to increase the type and number of eye drops I use on a regular basis. Please take into account the 1-3 zoning incompatibility with the surrounding areas. Respectfully submitted, Denise Rhoades 6771 Algonquin Dr. Johnstown, CO 80534 evedthrol 5/11/2020 Mail - BARRY ROBERTSON - Outlook COZ20-0004 BARRY ROBERTSON <robertsonbs@msn.cor L, "1 1 '?O f Pr�:1 To: asnyder@weldgov.com <asnyder@weldgov.com> Ms. Angela Snyder Weld Co Dept of Planning Services 1555 N. 17th Avenue Greeley,CO 80631 EXHIBIT 1 39 R Fc.FIvED MAY i 5 1010 Weld County Planning OF DepartmentFACE Dear Ms. Snyder As you have already been informed, there are multiple reasons that this neighborhood and this prime agriculture area residents have been adamantly opposed to the Martin Marietta I Rock and Rail invasion that we have all been subject to for the last 5 years. Of course, the illegality of the zoning change and the dubious moral character of our county commissioners and their self-serving decisions regarding anything Martin Marietta, certainly make one question the honesty and integrity of these public servants making the best decisions on this matter. These "public servants" decisions have clearly disregarded the original zoning and protection of this prime agricultural land and the residents who have enjoyed the peace and quiet of their country living here in Indianhead Estates. The effect on our community and the rural surroundings have been: There is constant dust: grinding commotion from noisy machinery; endless heavy truck traffic on all the surrounding roads: the presence and sounds of the train --horn blasting, brakes squealing, train cars banging together, and constant idling of the train engine for hours, have been documented by the very well educated scientific minds that live in this neighborhood. Their data show that noise limits have exceeded the acceptable limits both day and night! Needless to say, the quality of life here has changed for the worse and if Martin Marietta/ Rock and Rail are allowed to continue operations, our fear is that other large industry will see an open door for development here --in a place that should have NEVER have been rezoned from the beautiful and peaceful alfalfa and grain fields that rightfully and peacefully have been in place here for so many years. Thank you for your consideration. Sandy Robertson 27701 Hopi Trail Johnstown, CO 80534 https,//outlook.live.com/mail/O/sentitems/id/AQMkADAwATdiZmYAZCO4MTkzLWNjADEOLTAwAiOwMAoARgAAA3xfRiC%2FPVZGvvXQNCZrCdIH... 1/1 5/11/2020 Mail - BARRY ROBERTSON - Outlook i Case number COZ20-0004 BARRY ROBERTSON < robertsonbs@msn.com Mon 5/11/2020 12:34 PM To: asnyder@weldgov.com <asnyder@weldgov.com> Ms. Angela Snyder EXHIBIT 60 RFCF!VED MAY 15 2020 weld County Planning ueparcment GREELEY OFFICE We live in the Indian Head subdivision and are unhappy to say our home is on the south west corner. We have a direct view of the Martin Marietta facility from our deck. We ' in purchased our home in 2016 before any of the building of the facility and have put up with the constant changes and disregard to our pre -established neighborhood. This project was opposed by all surrounding it including the counties n in and towns. We as a group have won in the Colorado Appellate Court a decision to disallow the facility and have proven to the surrounding community that it was a mistake. To not reject the application for rezoning would be completely ignoring allof until now. p Y q g the history up I do not understand why this would be anything but a NO answer on the rezoning. We have put up with unreasonable noise, dust, traffic and railroad r t alas at overnight hours for too long already. Our house is disturbed all hours both night and day y to the point of not sleeping at night and not wanting to go out during the day Y to enjoy the day and our otherwise excellent neighborhood. Re7nning would only give them a green light to do as theyplease which it seems they are already taking to many liberty's. Respectfully Barry and Sandy Robertson 27701 Hopi Trail in Indianhead Estates https://outlook.live.com/mai I/0/deeplink?version=2020050302.03&popoutv2=1 &Ieanbootstrap= 1 1 /1 Weld County Department of Planning Services 1555 N 17th Avenue Greeley Co 80631 • . RE: Case # COZ20-0004 -- Deny Rezoning Weld County RFCEIVE MAY 15 2020 Weld County Planning Department GREELEY OFFICE May 12, 2020 I live at 27761 Hopi Trail, Johnstown, Co. 80534, my property is awfully close to this Plant, I have lived here at this location since 2004. I am opposed to the rezoning of since Martin Marietta Materials or Rock & Rail in which in reality is a cement plant. This plant and railroad have been declined by the area and residence for many years and in the Colorado Court of appeals in 11-2017, regardless of the name given it should have never been built in this location. Changing the name is just another ploy to the bully or buffalo the county and the surrounding residence. Stand up and reject this rezoning! The noise is a considerable issues along with the dust. As stated above, I have lived here since 2004 and have never had a dust issue until the opening of MMM DBA Rock & Rail. What concerns me the most is we MI know it should not hp thpro at all, yet it is, and the worst is still yet to come, and they want to add an Asphalt Cement plant into the mix. This Asphalt plant will only add to the noise and dust but throw nauseous toxic smell on top of it. Yet housing is to the west, east and north west — as stated many times, in county hearings, and court hearings it was brought up this is not a compatible location for a Rock & Rail — Martin Marietta Materials cement / Asphalt plant Rock & Rail — Colorado State Court system has denied this business regardless of the name. As outline by Weld County " Sec. 23-3-300. - Intent. -The purpose of the Industrial Zone Districts is to implement the goals and policies of the COMPREHENSIVE PLAN and provide areas for operation of land USES associated with distribution and warehousing of commodities as well as production, fabrication, manufacturing, assembling, and processing of materials. The Industrial Zone Districts have been established to promote economic development and job creation; to protect industry from the encroachment of residential and less intense COMMERCIAL USES; to reduce the adverse impacts of industries on surrounding, nonindustrial properties; and to encourage industrial development in areas that are compatible with heavy infrastructure and where necessary utilities are in place or reasonably attainable." It goes on and states the intent is to create minimal negative impacts for the area and even goes farther to state asphalt or concrete batch plants should only be approved for "TEMPORARILY and exclusively for a project. Regardless of the name it is a cement batch plant, Deny this application. As mentioned above in Weld Co Code 23-3-300 intent and the State of Colorado court of appeals states this property is not compatible with the area, agricultural uses and the people which have been contesting the plant and railroad loop from the beginning before being built, which is proof it is of what the people want. This plant needs to be denied and removed. The intent of 1-3 zoning is to provide large areas with limited public access. Not next to a residential area. I am sure you are aware of the pending court case and the past court cases that state the plant needs to be moved to a more compatible area. In the beginning this was brought up and ignored. I would hope this time it will not be ignored, and the re -zoning will be denied. Sincere Ro}1al"Jay pec 272761 opi Trail Johnstown, Co 80534 May 10, 2020 Paul Worrell 6873 Commanche Court Loveland, CO 80534 Ms. Angela Snyder Weld County Department of Planning Services 1555 N. 17th Avenue Greeley, CO 80631 RE: case number COZ20-0004 Ms. Snyder, RECEF E MAY 15 2020 Weld County Planning Department GREELEY OFFICE I am writing in regard to case number COZ20-0004. At the original hearing on the MM USR, I related that the major reason for my relocation from Loveland to Indianhead Estates in 1988 was the lack of noise at the location we purchased. I am a member of the Audio Engineering Society and use my home location for the design and evaluation of audio equipment. In addition, I provide recording and audio mastering services. These activities require quiet and that is the reason that I purchased my property. At the USR hearing MM provided materials that indicated that as a good neighbor they would comply with residential noise standards. Based on my understanding of the proposed activities at the MM location and the materials provided by MM it was obvious that MM could not and would not meet residential noise standards. In my discussion at the hearing, I opined that MM said that they would meet residential noise standards and that the County Commissioners should at a minimum hold MM to those standards. That is the noise requirements which were written into the USR. My worst fears have been realized with the current operations at the MM/RR facility. I cannot have a window open at night because the noise keeps me awake. (or wakes me up in the middle of the night if I am already asleep). The Colorado Noise Statue 25-12-103 require a level of less than 50 db(a) from 7 pm to 7 am for residential. There is an additional requirement in 25-12-103 (3) which states: (3) Periodic, impulsive, or shrill noises shall be considered a public nuisance when such noises are at a sound level of five db(A) less than those listed in subsection (1) of this section. Since rail car noise is all of the above (periodic/ impulsive/ shrill), the appropriate level for the MM/RR operations is not 50 db(a) as shown in the table, but actually a 5 db lower level of 45 db(a) because of the specific characteristics of the noise. With the current usage it sounds like a train switching yand in the middle of a quiet rural neighborhood. MM/RR has already proven that they have no intention of complying with the USR with their "creative" use of the federal railroad statutes. Now they are trying to "move the goalposts" once again to add other noxious and noisy operations to their "non -compliant" USR situation by changing zoning to 13 This is an obvious backstop situation to their potential court loss of the "railway usage argument" Please send a message to these people that the MM/RR usage of their site, was never going to be compatible usage with other pre-existing property owners' usage of their property, despite the BOCC requirements The original USR should have never been granted, MM should never have built when the USR was being litigated, MM should have never been allowed to "abuse" federal railway law to get around zoning laws and certainly they should not now be granted re -zoning to allow even more abusive/intrusive use of the site Sincerely Paul Worrell Coitywev S,5 i o ner5 frviesAAI 12/ 202-0 RECEIVED MAY 15 1020 ‘Adv, ar tvt aroon4ne., kiel _ etorshAet. ?ft° tt-t41 re-acq : k?A& CO&V‘ sy)-^ 4r0-�o.�f�M Coutrdvtat "rYls'42AOC yet% Qua co‘ok,A)Q4c2 GL"vrwrty i ?tett itiv‘ l 40 0�otLc op 16))) tacurb n p (m9 to \)tiviaa a tx-retiet pike v eut6r Sikorramorri-lem beit re, T“trietelaiik me oor (Lu-h voe perk vf1Fn\,7Ne one. '(12.k _ 0 rt +4�D aativt-\ pun oxi-Ann tOedGety,� Oe tit tear L RVs v'o�x7 t,30 wCcS� v u. Yo V v`otJctoorslitin4,�v � � to+1 tsta. 10O1r _spkC"' trace (1‘el, 'pGt5Snm ziVi% 1433 0\a your v3v)2411) X0,.5 fr41f\!SJ etoe.0J Weld County Planning uepartment •CREE Y .OFFICE cle", a.. aeertstoen k?a Q c- UN/9, lose 4-Fo 4-14, pwr» oniRe ootn au.�ovicA-necg pt, L 'Lae I�.I��te..e.� ne\kik ru, it) iiratAatts, r?‘ cvA+ jao\Aes2 ocavtert slai"I°rw4 'Ana f)ouo \int, oore, +kw) \4 Yv1M t 41> ro tO VA,\M ttA34dJT1, a 0 V� In,ay \ipAitti v�e��r� for t)jf)eac5 \iisr\ tY1,00) cwtcL awio n rae toe6 4 e `11a0(_cue Lko�,5 a,Ve c_es'-re,ut-rio '�-. - - i-fiv,, 3 oit- -1--Inr.k,A- .tec9 1 k__ Q -c) A -In?, 2\ _ 6u, -,t-- cji,,,,,,,),,,,z,_ ___.,, . ��` (� ,�^ } ( t ,,Q a }-� C `` j 1 1 + r t'n 4,-_-;, ; sr i �lrr�"..! elf ^it��l�i l,C.. tS'��.r L'�\-'' t CL f t....f 4 YC7�.+� 1..,'�i i� �� S i� it ,I 6681 Apache Road Johnstown, CO 80534 11 May 2020 Ms. Angela Snyder Weld Coun Department of Planning Services 1555 N. 17 Avenue Greeley, CO 80631 RE: Weld County Land Use Case COZ20-0004; To be included in the record Ms. Snyder: RECEIvED MAY 15 2020 Weld County Planning Department GREELEY OFFICE With this letter I am requesting that the staff of the Weld County Department of Planning Services recommend denial of the Rock & Rail (R&R) application to rezone the former Martin Marietta Materials (MMM) site on WCR 13, 0.5 miles south of US 34, to Heavy Industrial, 1-3, Case CO720-0004. When MMM lost the court case challenging their Use by Special Review (USR) at the Colorado Court of Appeals based on clear evidence that the operation was incompatible with the surrounding uses, they cynically sold the operation to their wholly owned subsidiary, Rock and Rail, for $10, and began operating the concrete manufacturing plant under the Interstate Commerce Commission Termination Act (ICCTA). That effort to evade local and state land use regulations is currently being challenged in US District Court. R&R must now anticipate an adverse ruling by the U.S. District Court, so they are attempting once again to bypass the entire process, this time by applying for rezoning to Heavy Industrial, 1-3. Rezoning is the only remaining way to eliminate any scrutiny of their impact on the neighboring property owners, since they would avoid any restrictions that could be imposed by Development Standards if this were instead a USR permit. In their application, Rock & Rail attempts to justify their application by misrepresenting the character of the area surrounding their proposed operation. For example, they minimize the significance of the Indianhead Estates and Indianhead Estates -West -residential developments, although many of those homes have been in place for over 40 years, with most having been in place for at least 10 years. Whatever the process might have been that resulted in the construction of what are now about 100 single family homes is completely irrelevant. The nature of the area was established at that point, and cannot simply be "wished away" by R&R. In addition, R&R completely ignores the presence of the Coyote Ridge residential development that is about a mile away or, Lakota Lakes, which is within 2 miles. And, although they pay lip service to the Rockin' S Ranch wedding and event venue with its approved USR, the true impact is again minimized as they claim that the surroundings are largely industrial. Of course, MMM attempted the same misrepresentation at both the Planning Commission and Board of County Commission hearings in 2015. But, as in 2015, the R&R claim that the area is industrial is simply false. There are no other industrially zoned parcels within at least a mile. And, although there are some Weld County USR's in the area that include commercial and light industrial uses, nothing nearby even approaches the intensity of the proposed 1-3 zone. The Weld County Code (Section 23-2-30.A.2) requires that "The uses which would be allowed on the subject property by granting the change of zone will be compatible with the surrounding land uses." However, a similar case was discussed by the Planning Staff on 5 May 2020 at the Planning Commission hearing for another rezoning attempt, Case # COZ20-0002 In that case, which also involved an agricultural property with several nearbyUSR permits, the Staff recommendation for denial was clear :The zoning on all adjacent properties is A (Agncultural) While some of these [nearby] uses are lndustnal they are allowed by the Use by Special Review process The USR uses are non -permanent and may be removed by action of the Board of County Commissioners or vacated per request of current or new property owners Therefore, the uses that would be allowed omthe subject property will not be compatible with the surrounding land uses '—Staff Comments, COZ20-0002 Clearly, if that proposal, which would have resulted in a change from Agricultural to 1-2 was incompatible with the surrounding agricultural and residential uses, then the current proposal, COZ20-0004, which would result in even more impact from the 1-3 zone district, must be even MORE incompatible, so consistency, fairness and equal protection of the neighbors surrounding the R&R property demand a recommendation for denial In addition to the obvious incompatibility of a rezoning to 1-3, as well as the virtual certainty that it would be a "spot rezoning" since it would be for the sole benefit of the property owner without consideration of the impact on the surrounding uses, the 1-3 rezoning attempt itself is indicative of the operational approach of this company Instead of simply attempting a rezoning to light industrial, I-1 together with a USR application, which would have allowed the proposed uses, but also would have resulted in the imposition of Conditions of Approval, Development Standards and limits on the allowed uses, R&R is instead trying to continue their completely unconstrained operation In addition to allowing their supposed aggregate, concrete, asphalt and rail operations, an 1-3 parcel could be transferred to a different owner that could pursue even more intensely invasive activities If this cynical attempt at rezoning is successful, then there will be no consideration given to the impact on the surrounding properties, either by R&R or other future owners Although R&R claims to have mitigated their current uses, nothing could be further from the truth They routinely operate at all times of day and night, starting concrete and aggregate operations as early as 3AM, including on weekends In addition, the neighbors have documented regular violations of the residential noise limit, to which MMM agreed in the original USR, Development Standard 23 R&R has also had violations of dust emission regulations and has made no attempt to communicate with the neighbors using the Community Work Group established by MMM, also a Development Standard Despite MMM promises to the contrary, R&R has generally been an invasive operation with substantial negative impact since it began in October 2018 The Planning Department must not be fooled by any circular logic that attempts to argue that since the operation is here, then it must stay here The Colorado Court of Appeals ruled that this operation is illegally incompatible with the surrounding properties, and it remains incompatible today Allowing any change to the Heavy Industrial zone would exacerbate that incompatibility and must not occur Respectfully, 21.,960 4144 -- David W Kisker Lisa Piraino 27660 Hopi Trail Johnstown, Co 80534 May 11, 2020 Ms. Angela Snyder Weld County Department of Planning 1555 N 17th Ave Greeley, Co 80631 RE: COZ 20-004 Gerrard Investments, LLC c/o Rock & Rail, LLC Dear Ms. Snyder: Thank you for taking the time to read this. RFCFfIctED MAY 1 51010 Weld County Planning Department GREELEY OFFICE My husband and I built our retirement home in Indianhead Estates West 14 years ago. The location was ideal for proximity to children and grandchildren. The one -acre lot allowed us to build a large shop for my husband and allowed me a large yard so I could pursue my passion of gardening. From April through October I usually spend two to six hours most days working outside. I had been blessed to have no issue with allergies but that has all changed since Rock & Rail started operations across the street from my house. (We are in the 500 ft. zone across from the plant.) I have developed breathing problems and an intermittent cough, one that just will not go away! I became concerned that something serious was going on in my lungs to the extent that I went to the doctor for an exam and chest x ray. The diagnosis is that I have allergy related asthma. The only change in my habits and environment is the operation of Rock & Rail's cement plant across the street, therefore the conclusion is that the allergy related asthma is from the dust created by the cement operations! The dust is evidenced by the increased amount of dust in my house, on my outdoor furniture and patio, on the cars, plus my husband has had to replace the furnace filters with significantly increased frequency. In addition to the dust and particulate problem I would now like to address the noise issue. My observations are not scientific and statistical as some of my neighbors have submitted; my observations are from my own personal experiences. I have been inside my house with the doors and windows closed and when the trains are unloading the noise is so loud it sounds and feels like thunder. I have even had an item fall off my soffit ledge from the vibrations! When I am working outside in the garden (remember, two to six hours most days) I like to listen to either podcasts or music with my headphones. I cannot hear when a neighbor walks by and says "hi" but I can hear the loud noise of the trains and of the concrete crushing and manufacturing machinery This noise level far exceeds the residential noise restrictions set forth by the county. These complaints refer to the current situation with Rock & Rail's operations. Should the property be rezoned to I-3 then the allowed uses would create a far greater invasion of my life and my neighbors' lives. In fairness to this community, please deny this application. I request this letter to be entered into the official public record. Sincerely, Lisa Piraino Martin P (Pete) Straub 27793 Hopi Trail Johnstown, CO 80534 EXHIBIT Ms. Angela Snyder Weld County Department of Planning Services 1555 N 17th Avenue Greeley, CO 80631 asnyder@weldgov.com P FCFIVED MAY 15 1020 Weld County Planning Department GREELEY OFFICE RE: COZ20-0004: Application of Rock & Rail to rezone their concrete operation from Agricultural to 1-3 Industrial. (This letter is "For the Record") Dear Ms. Snyder: My name is Pete Straub, and I live at 27793 Hopi Trail in Indianhead Estates West. In fact, I live on the western border, so my wife and I reside at "ground zero" to all the noise, dust, traffic, and negative impacts of the Martin Marietta operation. This is our lifelong dream, a rural large lot home with a shop and yard to enjoy in our retirement. Unfortunately, this 4 Y year -long nightmare has negated that dream. In the application to rezone the Rock and Rail facility land from Agricultural to 1-3, Industrial, I believe this action should not even be heard, much less allowed. My strong recommendation is for staff to recommend denying the rezoning, and for the Planning Commission to recommend to the BOCC to deny the rezoning and for the BOCC to deny the rezoning. Martin Marietta, the parent company of Rock and Rail, was deceptive in this action in the first place. With an ongoing court action pertaining to previous Weld County Use by Special Review approval, this is clearly a "end -around" to nullify the regulatory process in Weld County land use and subsequent relief sought by neighbors opposed to the USR approval in the state court system. The planning staff, planning commissioners, member of the BOCC, should especially recoil at the prospect of Martin Marietta and Rock and Rail in the circumventing of local regulatory and land use process. Although interstate rail commerce is a Federal issue under the regulatory authority of the Surface Transportation Board, along with essential related operations like transloading into haul trucks, it is clear that the separate operations of manufacturing concrete, transporting concrete slurry out in concrete trucks, hauling used concrete chunks in by truck, crushing it, and then hauling crushed concrete out of the facility is not. Neither is asphalt manufacturing, which is an ultimate goal of the owners of this facility. This rezoning flies in the face of the Weld County planners, who in good faith, worked with Martin Marietta in the USR process, and who Martin Marietta has now completely and absolutely demonstrated that they could not attain noise standards agreed to in the original USR stipulations. Over 150 homes, most likely Weld citizens within a mile circle of this facility Let me tell you how the quality of life has decreased for us Noise • Concrete operations Whirring, high pitched noises, and other mechanical noises come from the operation under normal use • Used concrete crushing Crushing has nothing to do with transloading, as large concrete used road pieces are hauled in by truck and then unloaded, (noisy), and then ran up a conveyer, (noisy) and then crushed, (real -real noisy) This prevents us from enjoying our backyards, visiting with our neighbors, walking the neighborhood in peace, and enjoying the homes we worked hard all our lives to have Check with Gary Opplinger, my neighbor to the south, who has a complete record of just how noisy this actually is Gary, on behalf of the neighborhood, has obtained noise measuring equipment and has kept a good record of the negative impact • Unloading operations When trains come, (at all hours of the day and night), the sound of the coupling and uncoupling can be heard and felt at our property We were told this noise would not occur It has • Rail traffic The addition of several trains per week at any hour increases industrial noise in this residential setting • Truck Traffic More trucks are more tire noise at all hours of the day Horns, accelerating trucks, shifting gears, are now the hallmark of our environment Martin Marietta & Rock and Rail said that they would abide by noise limitations prescribed in the USR stipulations but have always failed to do so If the 1-3 industrial application is granted, things will only get worse as far as noise It will even be much worse Dust and Microscopic Pollution • The level of dust and dirt in the air has increased proportionally to what you expect unloading, dropping from conveyers, loading aggregate, and extra truck traffic involves • My wife has suffered from acute asthma since childhood This facility has put her life at risk. Recently we invested in a new HVAC system with a special filter unit as a first line defense This extra expense was due entirely to MMM and R&R's improper and illegal use of Weld Agricultural land Visual Impairment to viewshed • Berms, walls, fences, big buildings, land scars, rail cars, and trucks now have replaced farmland that was our viewshed to the south west Not a pretty sight any longer With 1-3, this will become worse Decreased value of our Property • Any potential increase in value of our home the last 4 % years has been diminished by 15-20% due to this facility, Our neighborhood, and the surrounding area has fought this facility since this was first proposed We have won several court fights both in District Court and in front of the Colorado Court of Appeals We currently have a court date for yet another fight when this unreasonable request for rezoning happened We urge denial of this zoning change application due to the following reasons 1 There is a current court case underway concerning this land use in front of the Colorado Court of Appeals This application is an obvious move to bypass the court 2 A rezoning of the adjacent property to even a less egregious Industrial zone classification, was denied In 2015, an attempt to rezone 135 acres the NW quarter of the same section was made by EnviroTech and McWhinney Enterprises and it was denied by the Weld BOCC If the BOCC found that rezoning objectionable, it would naturally follow that this application is even more objectionable for the same and even greater negative impact Subsequently Anadarko Petroleum (now Occidental), purchased that land and is keeping the vast majority of that as agricultural as a buffer for two well sites Oxy has been an example of someone working with surrounding landowners to maintain the character and use of the land in the area and minimize the impact of their well sites on the enjoyment of our property 3 This zoning change request clearly constitutes "spot zoning" which is prohibited in Colorado 4 This facility serves limited use in Weld County and mostly benefits the market in Larimer County, but the negative impact is here in NW Weld County and to Weld residents. Tax revenue is not as great as the overall negative impact of this facility The few people that work her can be transferred to other MMM facilities easily The concrete can be supplied by many other existing facilities in the area Under current Weld Land Use regulations, this facility would not have been allowed There are industrial zoned alternatives for MMM to have this facility in Weld and the surrounding area Please recommend denial of this application Our neighborhood is tenacious and will not give up We have pulled deeply from our own pockets to finance an expensive legal battle Our county government should work for us here and not for a multi -billion -dollar corporation somewhere in North Carolina Pete Straub 303-330-6353 Susan F. Straub 27793 Hopi Trail Johnstown, Colorado 80534 May 12, 2020 ez 2 EXHIBIT 67 Ms. Angela Snyder Weld County Department of Planning Services 1555 N 17th Avenue Greeley, Colorado 80631 asnyder@weldgov.com RECEIVED MAY 15 1010 Weld County Planning be GREELEY OFFICE rrment RE: COZ20-0004: Application of Rock & Rail to rezone their concrete operation from Agricultural to 1-3 Industrial. (This letter is "For the Record") Dear Ms. Snyder; My name is Susan Straub and I live at 27793 Hopi Trail in Indianhead Estates West. I live on the western border (ground zero as we refer to it) of the Martin Marietta operation. My husband and I are directly affected by the noise, dust, traffic and all the negative impacts of Martin Marietta's operation. Moving to this small rural subdivision was a lifelong dream for both my husband and me; he had his shop, we had a large yard in which to enjoy our grandchildren, and clean air to breathe which was very important for me as I have had asthma all my life. In short, it was our retirement dream. Unfortunately, that all changed 4 1/2 years ago when this nightmare with Martin Marietta began. Our dream has been all but lost to the underhanded and deceptive behaviors of Martin Marietta. With an ongoing court action and without the approval of Weld County Use by Special Review, they not only went ahead and built their concrete facility but did what has clearly been an end - around to nullify any regulatory process in Weld County land use and subsequent relief by neighbors opposed to the USR in our state's court system by declaring themselves a Railroad. We have spent thousands of dollars fighting for our way of life against these bullies in what was once a quiet, peaceful subdivision in Weld County to have them do what they are now trying to do because they could see that we were not going to back down and were even winning. The application to rezone the Rock and Rail facility land from Agricultural to 1-3, Industrial, I believe should not be heard, much less allowed. It is my strong recommendation for the staff to recommend denying the rezoning, and the Planning Commission to recommend to the BOCC to deny the rezoning and the BOCC to subsequently deny the rezoning. The idea of Martin Marietta and Rock and Rail in the circumventing of local regulatory and land use process should enrage the planning staff, planning commissioners and members of the BOCC Interstate rail commerce may be a Federal issue under regulatory authority of the Surface Transportation Board, along with essential related operations; separate operations of manufacturing concrete, transporting concrete slurry out in concrete trucks, hauling used concrete chunks in by truck, crushing the concrete and then hauling it out of the facility is not Neither is asphalt manufacturing which is Martin Marietta's ultimate goal Rezoning is nothing but a slap in the face to the Weld County planners' good faith effort who worked with Martin Marietta in the USR process to appease us as well as them. As I stated before, our home here in rural Weld County was a retirement dream — if you allow this rezoning of prime agricultural land which our home directly borders, we will have lost it all My health will be at risk due to the asphalt chemicals in the as such pollution will certainly aggravate my asthmatic condition which improved tremendously once we left the city We will no longer be able to enjoy our yard due to the increased noise, traffic, dust and air pollution Once you allow them to rezone their land they currently occupy — it will not stop, we will lose all this beautiful prime agricultural land around us I, again, ask that you recommend denying this application. Sincerely, Cog) Susan Straub 303-319-6746 May 11, 2020 Weld County Department of Planning Services 1555 N 17th Avenue Greeley, CO 80631 EXHIBIT a 68 RE: Weld County Rezoning Application Case COZ2o-0004 Major objections related to this request RECEIVED MAY 15 2010 Weld County Planning Department GREELE( OFFICE Dear Weld County Department of Planning Services/Weld County Board of Commissioners: We respectfully request that you deny this change of zoning from Agricultural to Heavy Industrial (I-3). We looked at our potential property for 4 years, then decided to purchase in late December of 2014. Three weeks later we got an invitation to an open house on 1/27/15 stating Martin Marietta (aka Rock & Rail LLC) was proposing a concrete/asphalt plant basically in our new backyard (see attached picture taken by the Greeley Tribune). Our neighborhood and the surrounding area have been in a battle against this endeavor from the start, and we have been bounced around like a pinball machine with various "decisions" for the last 5+ years. In the summer of 2015 the planning staff opposed the initial plan and on 7/28/15 the planning commission opposed the plan, but subsequently the Weld County Commissioners approved the plan on 8/12/15 with 40 conditions for approval and another S5 or so development standards aimed at mitigating impacts on the industrial operation on its neighbors. Despite legal action, Martin Marietta (aka Rock & Rail LLC) started work on the project in October of 2015 "at their own risk". The court reversed the Commissioners decision on 11/22/17, then on 6/4/18 the judge gave the case back to the Commissioners! On 9/25/18 Martin Marietta leased the property to Rock & Rail LLC for no, apparently purchasing Rock & Rail LLC in December of 2015 after the Commissioners approval just in case they were ousted stating there is "nothing anybody can do about it". What a slap in the face to the Commissioners and the neighborhood/surrounding area, and therefore a loss of local control. In this process, 130 acres have been displaced (9o+ acres of existing "prime farmland"), and most of the mitigating factors the Weld County Commissioners set forth have not been followed. Here are some of our complaints living within 500 feet of this property: Compatibility: Indianhead Estates was started in 1979 and has been a well -established neighborhood for over 40 years. To build a plant of this magnitude near an existing well - established neighborhood in the first place was a travesty, let alone wanting to zone it now as industrial is incompatible to say the least! We believe this is just another attempt by Martin Marietta to bypass the November 2017 Court of Appeals in our favor, just like the lease fiasco to Rock & Rail LLC in September of 2018 (the property is loaded with MM trucks). Also, there are no existing surrounding uses for their existing Use by Special Review, let alone Heavy Industrial (1-3). For example, there is also a wedding venue and an organic farm adjacent to the site. 2 Noise Violations On the existing Agricultural Zoned property is a 6400 ft railroad loop Imagine a train arriving at 3 a m blasting its horn, switches being moved, a locomotive headlight coming around the track shining into our bedroom window, the squealing sound as the wheels rub along the circular track, then the engines idling all night until they can unload after 7 a m The unloading process then takes 5-6 hours, after which they do a couple of laps around the track, uncouple the locomotives, and burst out a loud wailing sound for approximately 5 minutes Rock & Rail LLC apparently feels since they are now under the jurisdiction of the Federal Surface Transportation Board, they can preempt local and state noise regulations for "rail activities", but aren't they just leasing the property and should therefore maintain the mitigating factors the Commissioners set for owners of the property? Also, does a Use by Special Review include "rail activities" in the first place? Aside from the trains, the rest of the plant makes a lot of noise during the day and night with the constant motion of MM trucks and backup beeping noises 3 Dust With the constant motion of trucks we have noticed a huge increase in the dust on our property We just washed windows and the sides of our house a couple weeks ago and the dirt just flowed off in a dusty silty mess You can also see it accumulate on our BBQ on our deck I can't imagine what we breathe in while trying to enjoy the outdoors on our acre lot 4 Truck Traffic Renata travels west every day on Highway 34 to work from our neighborhood to the 2534 area Even with the Stay At Home and Safer At Home mandates we have had recently, the truck traffic off of County Road 13 is congestive When we are at full workforce, the extra traffic on the highway is horrible! Bob travels east every day on Highway 34 with a short acceleration lane that is only 6o feet long, and this is challenging to say the least If you miss the wave either direction you are sitting another 6-8 minutes 5 Danger with odor and chemicals Although we haven't noticed too much of an odor at this point, we do worry about the dangerous aspects of this plant in its present state, let alone if it was changed to Heavy Industrial Right now, we believe they have tens of thousands of gallons of diesel fuel, i8o tons of coal fly ash, and 40,000 pounds of color additives We have seen a large gas fire on the north side of the property a few months ago, and just this past Sunday (5/10/20) there was some type of smoke fire in the middle of the property 6 Wildlife When we first moved into our house we noticed a plethora of fox, coyotes, and bunnies, not to mention a lot of hawks and other types of birds The plant has displaced so much of this wildlife and we rarely see them any longer, and we can't imagine what it would do if it was to be zoned Heavy Industrial On 1/22/16 we were asked to be a part of a Community Work Group with Martin Marietta (aka Rock & Rail LLC) We attended all the meetings, and although we were able to give our Input, it was basically on the choices for some of the ideas they put forth in their attempt to be a "good neighbor" For example, MM built a huge plant and we got to choose the design and the color, but we didn't get a choice in the height of the building (again see attached photo, noting our grandchildren's playhouse), size of the building, etc They did put up a berm around the edge of their property that fortunately keeps some of their operations from our line of view, but we feel for several of our neighbors who aren't as fortunate The berm does have an opening right where the train engine comes around the track to have the headlight beam shine into our windows on the back of our house, i e our bedroom window, at all times of the night' I We implore you to NOT rezone this parcel from Agricultural to Heavy Industrial (1-3) Heavy Industrial would allow for many other uses that are incompatible and have even more impact on our surrounding area Also, becaus6this Use by Special Review would now be denied (changes to County Zoning code last year on AG zoned land), this is another attempt by Martin Marietta (aka Rock & Rail LLC) to bypass law, rules, mitigating factors, etc They have already proven they will go to any length not to comply with the operational restrictions placed on them in the initial approval Sinerely, .- Bob & • -nata Meusch 27647 Hopi Trail Loveland, CO 80534 970-590-9624,970-590-4315 OALailet;n9ciaLak_ EXHIBIT 1 69 Dear Weld County Planning Commission, 5-14-2020 R FCFIVFD MAY 1 9 2020 Weld County Planning Department G I am writing to request your opposition to the Weld County Rezoning Application CRasEeELE5 Zzoo 6Fd664. Rock & Rail LLC and/or Gerrard Investments LLC property located at 27486 CR 13 & 6433 CR 56 from zoning A to 1-3. An 1-3 Zone is inconsistent with the current and future use of this area. this property abuts the Indian Head Estates residential neighborhood and agricultural land. This property is in an area that is projected for urban and residential development not industrial development. Heavy industrial use of this property has already negatively impacted this area by adding increased truck traffic, train traffic, dust, odor and noise pollution. The building of the Martin Marietta plant a few years ago was grossly misplaced in this agricultural and residential area. This zoning change will further negatively impact the quality of life in this area. The enjoyment of a peaceful, quiet quality of country living and the potential to impact property value has been affected since this company has moved into our neighborhood. 1 am asking for your careful consideration as you hold the future of the quality of life in this neighborhood your hands. Lee Anne Rosequist 27740 Blackfoot Rd Loveland, CO 80534 rrnsnn COMPANIES M D P N I E 5 C O M PA N I E S 27154 County Road 13 /Johnstown, CO 80534 office 970.669.1463 / fax 970.669.1964 May 14, 2020 Weld County Planning Commission Weld County Board of County Commissioners c/o Weld County Planning Department Re: Rock and Rail Application #COZ20-0004 Dear Commissioners: EXHIBIT 70 I am the property owner for the Rock and Rail facility and also an applicant for the zoning change. My purpose for writing this letter is in regard to the referral you received from the Town of Johnstown in the form of a Board Resolution opposing our application. I believe it's important for both the Planning Commission and the Board of County Commissioners to understand the context of Johnstown's position before any serious consideration is given to either the Town's Resolution or its stated opposition. As recently as one week before they passed their Resolution in opposition to the application, the Town through, its lead Planner and Town Manager, approached me with both an offer and an ultimatum to annex the Rock and Rail facility into Johnstown. In three separate overtures, the most recent on May 1st, I was told that Johnstown wanted to annex the Rock and Rail facility in order to capture the long-term employment and stabile tax base it represents. Mr. LeCerf also mentioned they have an interest in annexing the entire area around Rock and Rail, including other industrial use properties owned by Gerrard Investments, due to the area's inclusion in their master growth plan and the potential for other employment - based industries. As part of their expressions of interest, Johnstown officials made it clear they knew that industrial zoning acceptable to me and Rock & Rail was a necessary component of any annexation. At one point, after expressing that both Gerrard and Rock and Rail have been very content operating within unincorporated Weld County, along with my questions regarding Johnstown's ability to annex my properties due to contiguity, Mr. LeCerf went so far as to say that if we refused to table our Weld application and work towards annexation, the Town would oppose the zoning change. A threat with which they obviously followed through. So, regardless of Johnstown's strongly worded opposition to this application, it should be readily apparent through their pursuit of this facility that Johnstown only has an issue with the proposed zoning change and current use if it remains outside its boundaries. Just days before their Council voted in a special meeting to oppose the application, they were perfectly fine with both the existing and proposed land uses along with all of the supposedly objectionable activities and consequences they listed I would respectfully urge both the Planning Commission and the Board of County Commissioners to ignore Johnstown's duplicitous opposition to a facility they had just recently expressed a strong desire to annex A facility that serves their interests well by guaranteeing a nearby continuous supply of aggregates and aggregate based construction materials to meet a regional market demand that has been driven to a large degree by their own appetite for growth If their opinion of this trans -load facility has any legitimacy, it's in their desire to annex it Their overtures and ultimatums are not only contrary to their opposition, they prove Johnstown understands this Rock and Rail facility is not objectionable at all, but is in fact an attractive and crucial employment -based component of any jurisdiction's economy Thank you for your consideration / Gary Gerrard Robb Redlin 11932 Irma Drive Northglenn, CO 80233 May 12, 2020 To Whom It May Concern, EXHIBIT My name is Robb Redlin, and I am currently employed as Pastor of Calvary Community Baptist Church in Northglenn Co. In 2018 and 2019, for two years, my family and I lived at 6433 WCR 56. During that time, I was interim Pastor of a church in Ft. Collins, who rented the house for us as part of our pay that included housing. The house we lived in was just a hundred yards away from where the trains are u nloaded and during my time there, 1 saw many trains pull in behind my house and unload. It takes about four or five hours to completely unload one train and then the train either stays there for a while o r it leaves empty. Sometimes the trains would come in once a week and sometimes two or three a week. While I was there, I read and heard about complaints from some of the neighbors that are on the opposite side of the train facility - much farther away than where I lived. These complaints had to do with vibration, dust and noise. These complaints made me quite angry as never once did we feel any ✓ ibration in side our home, and if we were outside, only a very small amount but only when the train went past our house on the main track just a hundred feet west of the house or only a very small amount from the train facility when the engines were running. There was plenty of dust, especially in the morning, but it wasn't from the train facility, it was from CR 56 where dozens of trucks from the businesses across the road to the south would drive west to CR13. This would happen in the mornings and evenings when they returned, but the mornings especially, the dust from the county road would hang in the air and drift over my home. I never saw dust coming from the rail road facility. As for noise, after reading an article about some angry neighbors, I made a video that recorded the train unloading from inside the house and outside. You can hear from the video there is no more noise than we would get from the road out front or from somebody mowing their lawn. Once in a while we would hear some squeals from the train wheels when it moved. There is another train track to the south of the one that serves this rail facility and it creates a lot of horn noise as it crosses two county roads, in just a short distance, at an angle, several times a day. Additionally, they unload materials from those trains at a spot west of CR13 throughout the night most nights that we lived there, which we felt this train made much more noise, blowing its horn several times in the night and often times waking us u p. Sincerely, DocuSign Envelope ID: 470CA334-ADE2-4820-997B-8C8E2C44530F NA Affinity COMMERCIAL REAL ESTATE SERVICES, WORLDWIDE May 27, 2020 Weld County Board of County Commissioners Weld County Planning Commission 1150 O Street P.O. Box 758 Greeley, CO 80631 Submitted electronically RE: Rock and Rail Application #COZ20-0004 Dear Commissioners and Planning Commission Members: 5 EXHIBIT 72 My name is Ryan Schaefer. I am the CEO of NAI Affinity. a northern Colorado based commercial real estate brokerage. Our sister company Affinity Partners. LLC, also invests in apartment communities. throughout the western United States, including a recently approved and to be constructed apartment community within Weld County, in the Town of Evans. I am writing to express my support for the above referenced rezoning request. While NAI Affinity has a business relationship with affiliates of the applicant, we have no direct conflicts on this matter, and I am sharing my opinion freely. I support this rezoning request on the basis of four points: 1. Consistency with the Existing Use: This rezoning request and the proposed uses that would be allowed thereunder are materially consistent with the established railroad use and regulations. 2. Economics: Post Great Recession. construction costs have increased at a much faster rate than the sales prices and rental rates of commercial and residential real estate. This makes development less financially viable and has cost our region jobs. It is making our state and region less competitive when primary employers consider their options, while simultaneously driving up the cost of housing and making it less attainable for our citizens. Regional critical infrastructure facilities such as those proposed will contribute to lower construction costs. Conversely; the alternative of shipping these materials from out of state exacerbates the problem. 3. Environmental & Public Safety: I have grouped these two points together as the rationale for each is synonymous. One unit train replaces hundreds of semitrucks on our roads. Similarly, the inability to process concrete and aggregate on the property also results in additional truck traffic throughout the region. It is logical and in the public good to reduce this truck traffic on our roads. in order to avoid unnecessary pollution and degradation of our often underfunded highway infrastructure, while simultaneously increasing traffic safety. Thank you for allowing me to share the reasons for my support of this request. I appreciate the long hours that each of you devote to serving the citizens of Weld County. Best regards. DocuSigned by: rilletAAl 1 Satati-V Rv /1.ei ~S fer Chief Executive Officer 3665 John F Kennedy Parkway Building 2. Suite 202 Fort Collins. Colorado USA 80525 +1 970 663 3150 naiaffinity.com (m) May 29, 2020 TETRA TECH b 4 2 EXHIBIT 73 Ms. Angela Snyder Weld County Planning Department 1555 North 17th Avenue Greeley. Colorado 80631 RE: Rock and Rail, LLC Highway 34 Site (COZ20-0004) — Response to Reorganized Farmers Ditch Company Comments; Tetra Tech Job No. 117-8723001 Dear Ms. Snyder: Rock and Rail LLC received referral comments. dated May 7, 2020. from the Reorganized Farmers Ditch Company (RFDC) on the proposed rezoning of the Highway 34 site (Weld County Case ID COZ20-0004). Tetra Tech has prepared this response to address water quality and stormwater runoff concerns mentioned in the RFDC letter. Tetra Tech prepared the Final Drainage Report for Highway 34 Development, dated January 2017, in support of the Highway 34 development. The drainage design in the Final Drainage Report meets the Weld County Code, including detention requirements for the site. The site grading and drainage are designed to drain on -site runoff that contacts industrial activities through one of the three detention ponds. Some non -contact areas and off -site runoff is conveyed around or off -site to the historical discharge points south of the property. Detention ponds serve as both a flow attenuation measure and a water quality treatment device to provide reasonable protection to downstream owners from increases in runoff and potential water quality issues. The detention ponds are designed following the Weld County Engineering and Construction Guidelines (2012). The design of each pond also exceeds the requirements of the Guidelines by providing a valved outlet that is normally closed to trap stormwater on the site to allow for visual checking prior to release. Each detention pond is also fitted with a flow restrictor plate that lowers the peak discharge rate to not exceed the 10 -year historical discharge rate following the County Guidelines. Rock and Rail. LLC also complies with State of Colorado environmental quality requirements at its site including: • Registered Storage Tanks • Tier II Hazardous Chemical Inventory Reporting • Spill Prevention. Control, and Countermeasures Plan • Colorado Discharge Permit System. Industrial Stormwater Discharge Permit The comments in the RFDC comment letter about stormwater quality and drainage contend that there is a risk of contamination to irrigation water in the RFDC ditches or Koenig Reservoir and groundwater from site runoff. The site grading and drainage design minimizes the risk of contamination in the following ways: • Topography and off -site drainage diversion channels physically separate the site from the RFDC main channel and the laterals. The RFDC main channel is located entirely uphill from the project site where site runoff cannot flow into it Lateral #1 is located along Weld County Road 13. Site topography in this area, as presented in the drainage report. shows that site runoff from adjacent areas flows to the east to Detention Pond A and does not flow west into the lateral. Lateral #2 is located along the north and southwest property boundaries. The portion of Lateral #2 on the north property boundary is located uphill from the project where site runoff cannot flow into it. The portion of Lateral #2 on the southeastern property boundary is physically separated from site runoff by the Union Pacific Railroad embankment. Laterals #3 and #4 are located on the eastern side of the site and are physically separated from the site by an off -site drainage diversion channel. the rail embankment, and a visual barrier Tetra Tech 1900 South Sunset Street, Suite 1-E. Longmont, CO 80501 Tel 303-772-5282 Fax 303-772-7039 www.tetratech.com TETRA TECH Ms. Angela Snyder May 29. 2020 berm. The grading of the visual barrier berm in this area prevents runoff from the site, including the on -site railroad, from flowing east towards the lateral. • Koenig Reservoir is physically separated from the developed portion of the site by the railroad embankment and the visual barrier berm. A drainage channel, which only conveys runoff from adjacent properties to the east of the site, directs the stormwater into Koenig Reservoir. where it has gone historically. The only location where there is a potential for on -site stormwater to enter the RFDC irrigation system is at the historical discharge point at the intersection of the Union Pacific Railroad and Weld County Road 56. This point is the ultimate discharge point for site runoff leaving the property boundary. At this point, on -site runoff has passed through a detention pond, checked for visually identifiable contamination, and released at the 10 -year historical rate The project site is also subject to the requirements for a Spill Prevention, Control, and Countermeasures (SPCC) plan. This plan outlines the preventive measures and cleanup requirements in case of a spill of petroleum products on -site. The implementation of and adherence to an SPCC, in addition to other Federal and State environmental regulations.. is reasonably protective of the groundwater. The risk of contamination to surface water and groundwater from this site is minimized by: • Implementation of a Spill Prevention, Control, and Countermeasures plan that includes: o Secondary containment of petroleum storage tanks o Control and Cleanup measures for spills that escape secondary containment • Monitoring and testing of stormwater quality as required in the individual Industrial Stormwater Permit • Voluntary trapping and inspection of stormwater for visual contamination before release The RFDC also requested several development standards be considered for approval. We have reviewed each of their requested standards and have determined that they are not acceptable. Below is a listing of each of the requested standards followed by an explanation as to why the standard requested is not acceptable to Rock and Rail Comment: RFDC requests that the County require that stormwater will be piped directly to the Big Thompson River. Response: The owner of upstream property possesses a natural easement on land downstream for surface water flowing in its natural course. The upstream owner may alter drainage conditions so long as the water is not sent down in a manner or quantity to do more harm to the downstream land than formerly. Bittersweet Farms. Inc. v. Zimbelman. 976 P.2d 326 (Colo. App. 1998). The Final Drainage Report shows that this development complies with this standard by detaining the 100 -year developed flows and releasing at the 10 -year historic rate. Rock and Rail is allowed to discharge at the historic discharge point and is not required to construct a pipeline to the Big Thompson River. Comment: RFDC requests that the County requires that an agreement be entered into between the applicant and surrounding RFDC landowners on how the applicant will maintain water quality before leaving the detention pond. Response: Environmental controls, as required by the State, are in place to protect water quality. Comment: RFDC requests that the County require the applicant to install a release control valve on the detention pond that will prevent water release for up to three (3) days following a storm event until an on -site analysis of the water quality can be performed to determine if contaminants are reduced or eliminated. Response: Rock and Rail has valved outlets to allow for visual assessment of runoff prior to release. Discharges from the site are required to be monitored for specific contaminants per the Industrial Stormwater Permit. Holding stormwater runoff for three days is not permitted because 97% of all the runoff from a 5 -year storm or greater must be released within 72 hours (3 days) under Colorado Revised Statute 37-92-608(2). Comment: RFDC requests that the County require the applicant not build or install any structures, fences, or other obstructions within 35 feet of the center of the RFDC main ditch and lateral ditches so maintenance can be performed. Page 213 l TETRA TECH Ms. Angela Snyder May 29, 2020 Response: This standard is unnecessary because no change in maintenance access is proposed. Thank you for your consideration. If you have any questions, I can be reached at jeff.butson@tetratech.com or 720-864-4566. Sincerely, TETRA TECH Jeffrey Butson, PE Senior Engineer 11rt.local\IERIProjects1Longmont187231117-87230011Docs1Reports\Ditch Company Response Letters\Rock and Rail Ditch Co Comment Response RFDC docx Page f _ l May 29, 2020 TETRA TECH EXHIBIT 74 Ms. Angela Snyder Weld County Planning Department 1555 North 17th Avenue Greeley. Colorado 80631 RE: Rock and Rail, LLC Highway 34 Site (COZ20-0004) — Response to Hill and Brush Ditch Company Comments; Tetra Tech Job No. 117-8723001 Dear Ms. Snyder: Rock and Rail. LLC received referral comments dated May 11. 2020. from the Hill and Brush Ditch Company (HBDC) on the proposed rezoning of the Highway 34 site (Weld County Case ID COZ20-0004). Tetra Tech has prepared this response to address water quality and stormwater runoff concerns mentioned in the HBDC letter. Tetra Tech prepared the Final Drainage Report for Highway 34 Development, dated January 2017, in support of the Highway 34 development. The drainage design in the Final Drainage Report met the Weld County Code, including detention requirements for the site. The site grading and drainage are designed to drain on -site runoff that contacts industrial activities through one of three detention ponds. Some non -contact areas and off -site runoff is conveyed around or off -site to the historical discharge points south of the property. Detention ponds serve as both a flow attenuation measure and a water quality treatment device to provide reasonable protection to downstream owners from increases in runoff and potential water quality issues. The detention ponds are designed following the Weld County Engineering and Construction Guidelines (2012). The design of each pond also exceeds the requirements of the Guidelines by providing a valved outlet that is normally kept closed to trap stormwater on the site, which allows for visual assessment prior to release. Each detention pond is also fitted with a flow-restrictor plate that lowers the peak discharge rate to not exceed the 10 -year historical discharge rate. following the County Guidelines. Rock and Rail; LLC also complies with State of Colorado environmental quality requirements at its site including: • Registered Storage Tanks • Tier II Hazardous Chemical Inventory Reporting • Spill Prevention, Control, and Countermeasures Plan • Colorado Discharge Permit System. Industrial Stormwater Discharge Permit The stormwater quality and drainage comments from the HBDC comment letter are listed below. followed by our responses to each comment. Comment: There is a risk of contamination of irrigation water in the HBDC ditches or Koenig Reservoir and groundwater by site runoff Response: The site grading and drainage design are planned to minimize the risk of contamination of surface water and groundwater using engineered solutions and compliance with applicable Federal and State regulations. The risk of contamination to Koenig Reservoir is minimized because the reservoir is physically separated from the site by the railroad embankment and the visual barrier berm. An off -site drainage channel, which only conveys runoff from adjacent properties to the east of the site, directs the stormwater into Koenig Reservoir, where it has gone historically. The only location where there is a potential for on -site stormwater to enter the HBDC irrigation system is downslope of the historical discharge point, at the intersection of the Union Pacific Railroad and Weld County Road 56. This point is the ultimate discharge point for site runoff leaving the property boundary. At this point. on -site runoff has passed through a detention pond, been checked for visually identifiable contamination, and released at the 10 -year historical rate. Tetra Tech 1900 South Sunset Street, Suite 1-E, Longmont, CO 80501 Tel 303-772-5282 Fax 303-772-7039 www.tetratech.com (m] TETRA TECH Ms. Angela Snyder May 29. 2020 The project site is also subject to the requirements for a Spill Prevention. Control, and Countermeasures (SPCC) plan. This plan outlines the preventive measures and cleanup requirements in case of a spill of petroleum products on -site. The implementation of and adherence to an SPCC. in addition to other Federal and State environmental regulations, is reasonably protective of the groundwater. The risk of contamination at the ultimate site discharge point is minimized by: • Implementation of a Spill Prevention, Control, and Countermeasures plan that includes: Secondary containment of petroleum storage tanks c Control and Cleanup measures for spills that escape secondary containment • Monitoring and testing of stormwater quality as required in the individual Industrial Stormwater Permit • Voluntary trapping and inspection of stormwater for visual contamination before release Comment: There is an increase in volume and flow rate of runoff. Response: The flow rate that is released from the site is restricted to the 10 -year historical flow rate. This flow rate is less than the pre -development flow rate for storms greater than the 10 -year frequency storm. This is an improvement over the pre -development condition where runoff rates can be greater. The HBDC also requested a development condition requiring the site runoff to be conveyed to the Big Thompson River via pipe. This is not a reasonable request. According to Colorado law. the owner of upstream property possesses a natural easement on land downstream for surface water flowing in its natural course. The upstream owner may alter drainage conditions so long as the water is not sent down in a manner or quantity to do more harm to the downstream land than formerly. Bittersweet Farms. Inc. v. Zimbelman, 976 P.2d 326 (Colo. App. 1998). The Final Drainage Report shows that this development complies with this standard by detaining flows and releasing at a lower rate of flow than the pre -developed condition. Rock and Rail is allowed to discharge at the historic discharge point and is not required to construct a pipeline to the Big Thompson River. Thank you for your consideration. If you have any questions, I can be reached at eff.butsontetratech.com or 720-864-4566. Sincerely. TETRA TECH Jeffrey Butson, PE Senior Engineer 11 Tt locaNER'Projects\Longmont187231117-87230011DocslReports\Ditch Company Response Letters1Rock and Rail Ditch Co Comment Response Hill and Brush.docx Page 212 EXHIBIT 1 75 Weld County Planning Project File No. COZ20-0004—Highway 34 T ermina Responses to Referral Comments Prepared by Rock & Rail, LLC May 28, 2020 Rock & Rail, LLC ("R&R"), is in receipt of referral comments submitted to the Weld County Planning and Building Department in response to the above -referenced application (the "Application") relating to the real property that is the subject thereof (the "Property") or the facilities located thereon (the "Facility"). R&R responds to the various agency and public comments as follows: 1. Weld County Department of Public Health and Environment (memorandum from Lauren Light dated May 11, 2020) R&R has reviewed and acknowledges these referral comments. R&R has no concerns with incorporating the recommended plat notes. 2. Reorganized Farmers Ditch Company (response letter from John Cummings, Vice President, dated May 7, 2020) R&R's consultant on stormwater management, TetraTech, has provided responses to the RFDC letter. In addition, R&R responds to the RFDC letter as follows: • • • The Property is presently developed with a concrete mixing facility and associated uses, and significant stormwater management improvements were made on the Property in connection with the original construction of the Facility, as required by County and state regulation, and the Property's state stormwater discharge permit. These improvements include appropriate detention for 100 -year storm events. Since the Facility has been operational, no stormwater discharges have occurred into the RFDC system. Furthermore, the release of contaminants into any stormwater discharge is barred by the above - referenced state stormwater discharge permit. Any future development of an asphalt plant on the Property would utilize these same stormwater management improvements. The author of the RFDC response letter was one of several persons who challenged the County's approval of the original Use by Special Review authorizing the construction of the existing improvements on the Property, and is also one of the litigants in currently - pending federal litigation regarding the Property. Several of the comments contained in the RFDC letter appear to address matters beyond the scope of RFDC's business interest in the Application. R&R thus questions whether the author of the RFDC letter is providing comment on behalf of RFDC, or in furtherance of his personal interests and opposition to the Application. R&R is not aware of any current contamination issues associated with drainage from the Property, nor does the RFDC letter identify any such issues. Furthermore, since the completion of the Facility, R&R is not aware of any storm event in which drainage was released into the RFDC system. Additionally, R&R notes that no additional uses of the 1869840 6 Property, beyond the construction of an asphalt plant and the present Facility, are anticipated at this time • Although RFDC suggests incorporating several development standards into the proposed change of zone, R&R notes that development standards are not typically incorporated at the change of zone stage Stormwater management of the Property is governed by County and state standards, and the Facility operates under an approved stormwater management plan Any future development of the Property will be subject to site plan review, will comply with state and local regulation, and will also comply with the effective stormwater management plan for the Property 3 Town of Windsor (email from Scott Ballstadt, AICP, Planning Director dated January 23, 2020) The email states that the Application lacks detail about the proposed use of the Property, however, there is a high level of detail accompanying the Application R&R's purpose in submitting the Application is to allow the buildout of the Property as initially envisioned in the 2015 Use by Special Review approval —which contained significant detail as to prospective uses of the Property No additional uses of the Property, beyond those indicated in that prior approval, are anticipated at this time 4 Weld County Department of Public Works (memorandum from Melissa J. King, PE, dated May 14, 2020) R&R has reviewed and acknowledges these referral comments R&R has no concerns with incorporating the recommended plat notes 5 Hill and Brush Ditch Company (letter from Jim Croissant, President, dated May 11, 2020) The content of the HBDC letter appears nearly identical to that of the RFDC letter R&R thus incorporates by reference its responses set forth under Section 2 above in response to this letter R&R further notes that, although the HBDC letter argues that the proposed zone district is incompatible with surrounding uses, it fails to state any reasons for that assertion 6 Town of Johnstown (Resolution No 2020-13) Please see the response letter from Gary Gerrard on behalf of Gerrard Investments, LLC, the owner of the subject Property, addressing these referral comments R&R additionally offers the following response to the Resolution The third "Whereas" clause of the Resolution states that "the Town anticipates the development of low -density, single-family residential homes in the area surrounding the Property" The Land Use Framework Plan depicted on Page 2-5 of the referenced Johnstown Area Comprehensive Plan ("JACP"), however, depicts the Property as being located in an area designated for agricultural uses, and properties in the immediate vicinity are designated for Employment and Commercial Mixed Use uses 2 1869840 6 The JACP also discusses the need for a "land use balance" in the Town, with "adequate commercial, industrial, public and quasi -public, and residential uses such that the Town is self-supporting and self-sustaining " JACP, p 1-2 The Property's current and proposed industrial uses —concrete and asphalt mixing —are essential to any self-sustaining, growing community, as the products transloaded and mixed on the Property are necessary for critical infrastructure and nearly any type of construction Many recent development projects located within the Town or in the vicinity have used products that were transloaded through the Facility These projects include Johnstown Plaza, the Johnstown Recreation Center, and several highway projects that have improved the Town's infrastructure The location of such a Facility in close proximity to the Town is integral to the future growth and development of the Town • The Town's designation of the Property for agricultural purposes on the Land Use Framework Plan does not reflect current and future realities on the Property Since the Town's adoption of the JACP in 2006, the Property has been improved with a rail spur track, railyard, and transloading facilities These uses are not governed by local land use regulation, and even if the Facility were to cease operation, would remain in place due to strong market demand for rail transportation and logistics Moreover, the area surrounding the Property continues to grow and develop The Property's location in a transportation hub —with significant rail and highway infrastructure in the immediate vicinity —makes its fair rental value too high for agricultural users Thus, irrespective of the Land Use Framework Plan's designation, it is highly unlikely that the Property would ever be put to agricultural use in the future ® The fifth "Whereas" clause describes the current and proposed uses on the Property as being "wholly inconsistent with residential development and with the Town's Comprehensive Plan " As discussed above, several aspects of the Facility are consistent with the JACP Additionally, this statement ignores the industrial uses that presently exist in the immediate vicinity of the Property —including within the Town's corporate limits The Town itself has approved industrial development approximately '/z mile away that is visible from the Property The industrial park located within the Town includes a bakery operation and multiple logistics and distribution operations that produce many of the same types and volumes of traffic as the Property Thus, the Town's own land use decisions have reinforced the industrial character of the area surrounding the Property This statement in the Resolution further ignores numerous other industrial and oil and gas uses in the vicinity of the Property in the unincorporated areas of Weld and Larimer counties ® The last "Whereas" clause on the first page of the Resolution is wholly unsupported The clause references negative impacts to existing and future residential development and potential losses of property value, yet five years after the County's original approval of the Facility, none of that has happened In fact, several new homes have been constructed along the western boundary of the Indianhead Estates subdivision, in clear view of the Facility after initial construction began Publicly -available sales data from residential properties in the subdivision also confirm that there have been substantial gains in property values in the Indianhead Estates subdivision and other surrounding residential properties, exceeding countywide property value increases 3 1869840 6 The Resolution also fails to (1) identify what "continuous industrial operations" residents are exposed to, (2) substantiate its position regarding "unplanned industrial development," and (3) offer any support for its references to quiet enjoyment or quality of life The Application materials establish that the Facility and proposed additional uses are consistent with the County's comprehensive plan, which directs the location of industrial land uses along railroads, which is the exact opposite of "unplanned industrial development " To the contrary, placing industrial land uses in a multi -modal transportation corridor is consistent with good planning to accommodate necessary industrial development Additionally, no objective evidence supports the conclusion that the Facility impairs quiet enjoyment of surrounding properties As the County's own complaint data shows, before the filing of this Application, no residential landowner complaints regarding dust or noise from the Facility were submitted since the completion of the Facility's construction • The first "Whereas" clause on the second page fails to observe the existence of other industrial and extraction uses along the U S 34 corridor, and again fails to acknowledge the Town's approval of industrial uses in the vicinity of the Property • The third "Whereas" clause on the second page suggests that the proposed I-3 zoning designation is "far too intense " The resolution offers no support for this conclusory statement and the application shows it to be incorrect The Property has extensive buffers and areas of passive use Only two plants, a concrete mixing plant and an asphalt plant are proposed for the entire site The site is extensively bermed and screened R&R leases the Property, rather than owning it and the lease does not permit it to engage in uses other than those specified in this application 7 City of Greeley (letter from Brad Mueller dated May 14, 2020) R&R offers the following response to the letter • As an initial matter, R&R observes that the City's letter appears to be largely premised upon the intergovernmental agreement between the City and the Town of Windsor (the "IGA"), to which the County is not a party and thus is not bound by the terms thereof The County is, however, a party to various coordinated planning agreements with its constituent municipalities, and provided notice of the Application to those municipalities Each municipality to which the County provided notice, with the exception of Johnstown, declined to engage in annexation discussions with R&R • The comments contained under Section 1 of the letter fail to acknowledge the existence of several industrial uses in the immediate vicinity of the subject Property, as well as various extraction uses located within a mile and a half of the Property Any evaluation of the compatibility of the proposed zone district with surrounding uses must take into account all surrounding uses • 1869840 6 Section 2 of the letter suggests that R&R should seek a rezoning to a less intense industrial district R&R considered requesting I-2 zoning, but the screening requirements under that zone are not clear, and would inevitably lead to disputes as to the adequacy of screening Further, the uses allowed in the I-2 are not significantly more restrictive than in the I-3 4 zone R&R concluded that the risk to both itself and the County —of disputes over the requirements of the I-2 zone outweighed any gain from eliminating undesirable uses, which are already limited by other code provisions The I-1 district does not permit permanent asphalt or concrete batch plant operations • Section 3 indicates that the "proposal limits the ability of the public and nearby jurisdictions to comment on future land use proposals " This assertion is incorrect The County code supplies ample opportunity for public involvement in the current Application Furthermore, the site plan review process provides for referrals to interested agencies, which would include the City • Section 4 incorrectly asserts that the Application would restrict the County's ability to impose performance or operational standards to mitigate the impacts of industrial uses The County code already contains limitations on industrial uses to ensure that they do not negatively impact surrounding properties, and nothing in the Application results in the County waiving any of its regulatory or enforcement powers 0 • Section 7 of the letter suggests that the proposal "threatens the agricultural entryway into Weld County and Greeley " R&R's predecessor worked closely with the County and some community members to make the concrete facility look agrarian and to limit uses on the Property so that it did no look out of place in the surrounding landscape What's more, to the extent the referenced "entryway" is U S 34, this suggestion is factually inaccurate and inconsistent with the planning priorities of the County and other, surrounding jurisdictions The Property is located one-half mile south of U S 34 and is buffered from U S 34 by an existing agricultural property Other uses along U S 34 include residential uses, automobile dealerships, a junk yard, and oil and gas -related uses West of the County boundary, uses include a variety of commercial and industrial uses Thus, the characterization of the corridor as an "agricultural entryway" is not consistent with its actual development Furthermore, other, surrounding jurisdictions have proposed commercial and industrial uses along the corridor in their future planning efforts Section 8 of the letter notes that the Board of County Commissioners previously denied, in 2015, an application for change of zone to I-2 pertaining to adjacent property, in which the Board concluded that the proposal was incompatible with surrounding uses Each land use application is unique, and different landowners take different efforts to make their development compatible with surrounding uses Here, R&R's predecessor leased a large tract of land and developed it with interior concrete mixing, agricultural architectural treatments, substantial buffering and berming, lowered roadways, and limited uses, in response to neighborhood compatibility concerns These improvements were designed in coordination and collaboration with neighbors As a result of those efforts, the Board approved the development of the subject Property with concrete and asphalt mixing operations, finding those exact uses compatible with surrounding development Irrespective of the history of land use applications in the vicinity of the Property, R&R acknowledges that the Board must evaluate every unique land use application on its own merits, and a particular finding on a prior land use application has no bearing on a subsequent application 5 1869840 6 • The balance of the letter appears to implore the County to collaborate with surrounding jurisdictions regarding planning in the subject area As discussed above, per its coordinated planning agreements, the County notified three municipalities of the preapplication in this matter, offering them an opportunity to explore annexation of the Property Johnstown was the only municipality to indicate any interest in annexation, and informally offered to approve industrial zoning on the Property R&R is supportive of good planning, and indeed, the Application is consistent with the County's comprehensive plan, which supports the location of industrial uses along railroad lines 8 Ireland Stapleton (letter from Mark Lacis, dated May 8, 2020) Although not a referral agency, this letter raises several legally and factually inaccurate arguments regarding the Application R&R responds to this letter as follows 9 • B • 1869840 6 The County's Use by Special Review approval for the Property contained development and operational standards to mitigate negative impacts on surrounding properties, including those owned by Ireland Stapleton's clients Rather than accept those limitations, Ireland Stapleton's clients chose to challenge the approval, which had the practical effect of invalidating those standards However, before the USR was invalidated, the Facility was constructed in full compliance with the development standards imposed by the County —to the great benefit of Ireland Stapleton's clients Although R&R's railroad operations are exempted from local land use regulation, R&R's purpose in its Application is to restore local land use regulation to the concrete and asphalt mixing operations to allow them to be subjected to County code standards R&R acknowledges that a trial has been set in the referenced "Federal Lawsuit," however, R&R disputes that it is "seeking to avoid the Federal Court's impending resolution" of that case Although the County's approval of the Application may affect the Federal Lawsuit, the Application was filed because it is consistent with good planning principles and because R&R believes that it is in its, the County's, and the community's best interests to ensure that the Property's zoning is consistent with —and binding upon —its concrete and asphalt mixing operation uses The Application is part of R&R's long-term plans to operate the Facility compatibly with surrounding land uses The letter's assertion that approval of the application would result in "illegal spot zoning" is meritless In determining whether or not spot zoning is involved, it is necessary to determine whether the change in question was made with the purpose of furthering a comprehensive zoning plan See Clark v Boulder, 362 P 2d 160, 162 (Colo 1961) Here, the County's comprehensive plan clearly directs that industrial uses should be located along railroads, and the Application unquestionably establishes consistency with the County comprehensive plan R&R's assertion in the Application that the Property is operated in conformance with noise limitations not otherwise preempted by ICCTA is factually accurate The letter's assertion to the contrary offers no evidence supporting that assertion Underscoring this point is the fact that the County has received no noise complaints —until the filing of this 6 Application —regarding the Property's operation, save for one that occurred during the construction of the Facility • The letter's assertion that the Property is presently in violation of County zoning law is wrong Although the letter contains an attachment of selected quotes from the County's FRCP 30(b)(6) deposition, the County staff —and the code itself —make clear that the County does not regulate railroad operations Likewise, ICCTA, several federal cases, and the federal district court's summary judgment order in the Federal Lawsuit make clear that local zoning laws do not apply to railroad operations There is no zoning violation • In the last paragraph on page 2, the letter confuses a performance standard —that is, the applicable noise limitation —with compatibility The applicable code provisions require the County to determine whether "the USES which would be allowed on the subject property by granting the Change of Zone will be compatible with the surrounding land USES " Code § 23-2-40 B 2 That is a discretionary determination that must be made by the Board of County Commissioners in evaluating the Application Conversely, a noise standard is a nondiscretionary performance standard, applicable to any current or future land use, which falls entirely within the enforcement discretion of County staff, pursuant to Code § 14-9-70 A • The letter's assertions that Board members cannot impartially render a decision on the Application are without merit The entry into a joint defense agreement between parties with a common goal in litigation is a routine activity, and the agreement in question relates to now -concluded litigation The Application is a wholly separate application, involving a separate business entity R&R does not interpret the agreement as applying to anything outside of the judicial challenge to USR15-0027 9 Public Comment Letters Although R&R will refrain from responding to each individual public comment letter, R&R provides the following responses to certain matters raised in those letters • • Several of the letters originate from a small portion of the Indianhead Estates subdivision, and many were authored by parties that previously challenged the 2015 Use By Special Review approval and who are now parties to litigation with R&R regarding the scope of federal preemption Although several letters complain about noise and dust allegedly emanating from the Property, County complaint records do not substantiate these concerns Notably, none of the letters provides any evidence supporting these assertions Only two complaints have been filed about the Facility since it commenced operation in 2018 Just one of these was found by the County to be valid, and resulted from a faulty switch that was quickly fixed by R&R • Several letters note concerns regarding property values, however, data regarding home sales in Indianhead Estates and the surrounding area indicate that home values have increased since the Facility commenced operation, and have done so at a faster rate than in the remainder of the County R&R additionally notes that several new homes have been 7 1869840 6 constructed and sold along the western boundary of Indianhead Estates, in plain view of the Property, since the Facility commenced operations • Several letters identify concerns regarding the noise and operation of trains Trains and railroad operations are prevalent throughout the area, with a Union Pacific mainline and several short line rail operations in the immediate vicinity of the Property These rail operations are preempted from local regulation under the Interstate Commerce Commission Termination Act ("ICCTA") Even if the County were to deny the Application, there would be no limit on railroad operations at the Property Although several letters indicate that unloading of railcars occurs at night, this is not the case, as R&R unloads railcars only during the daytime hours In addition to the foregoing responses, R&R will be submitting additional reports addressing matters raised in the public comment letters that have been submitted to date These reports will be sent to the Planning and Building Department prior to the Planning Commission hearing on June 16, 2020 8 1869840 6 EXHIBIT 1 76 Weld County Planning Project File No. COZ20-0004 Highway 34 'i Summary of Complaint Data Prepared by Rock & Rail, LLC May 28, 2020 On May 7, 2020, Rock & Rail, LLC ("R&R"), by and through its legal counsel, submitted a request pursuant to the Colorado Open Records Act, C.R.S. § 24-72-101 et seq., seeking copies of all complaints made to the Weld County Department of Public Health and Environment ("DPHE"), and any documents relating to the disposition of the same, pertaining in any way to the real property identified as Assessors' Parcel Numbers 095718000009 and 095718300050, which constitute the property that is the subject of the above -referenced planning project file (the "Property"). The following is a summary of the information produced by DPHE. DPHE staff has confirmed that the County does not have any other complaint data besides that identified herein. Overall, DPHE has records of 14 complaints relating to the Property. The earliest complaint of which DPHE has a record was logged on August 30, 2016. Two of the complaints were logged in 2019, three were logged in 2017, and nine were logged in 2016. Each complaint's date, the complainant's name, the nature of the complaint, and the disposition of the complaint are identified in the table attached as Exhibit A. The complaint files are attached as Exhibit B. All but two of the complaints occurred during the initial construction of the facilities located on the Property. All of the complaints relate to dust emissions on the Property, and two include complaints regarding noise. In each case, a DPHE inspector visited the Property and, in all but one case, observed either little or no dust. The follow-up inspections addressing the noise complaints did not identify violations. The only case in which an apparent violation occurred was an incident in February 2019, in which a pressure switch malfunctioned in the concrete batch plant on the Property, resulting in fly ash dust visible from U.S. Highway 34. In each case, R&R had either responded to the complaint by taking action to stop the dust emission or, in the case of the February 2019 incident, R&R shut down the plant and made appropriate modifications to avoid a recurrence. Additionally, on May 19, 2020, R&R, by and through its legal counsel, conducted a search of the records of the Weld County Department of Planning and Zoning ("DPZ") via the "E -Permit Center," seeking records of any complaints made to DPZ regarding zoning compliance matters, and any documents relating to the disposition of the same, pertaining in any way to the Property. No records were identified. County staff has confirmed that there are no additional complaint records outside of those available on the "E -Permit Center." 18695571 EXHIBIT A Summary of Complaints Complaint Log Date Complainant Nature of Complaint Disposition 2016-08-30 Jim Piramo (Indianhead Estates neighbor) Dust Site inspection occurred next day, minimal dust observed, no citation Note occurred during initial construction 2016-10-19 Jim Piramo (Indianhead Estates neighbor) Dust Complaint made four days after dust was allegedly observed, no citation Note occurred during initial construction 2016-10-19 Jim Piramo (Indianhead Estates neighbor) Dust Site inspection occurred same day, minimal dust observed, no citation Note occurred during initial construction 2016-10-25 Vicki Wilson (CR 13 neighbor) Noise, dust Site inspection occurred same day and follow-up four days later, no violation observed, no citation Note occurred during initial construction 2016-10-27 Jim Piraino (Indianhead Estates neighbor) Noise, dust Site inspection occurred same day, no violations observed, no citation Note occurred during initial construction 2016-11-05 Not identified Dust Site inspection occurred same day, minimal dust observed, no citation Note occurred during initial construction 2016-11-08 Jim Piramo (Indianhead Estates neighbor) Dust Site inspection occurred same day, minimal dust observed, no citation Note occurred during initial construction 2016-11-26 Pete Straub (Indianhead Estates neighbor) Dust Site inspection occurred same day, no dust observed, site had been shut down due to high wind, no citation Note occurred during initial construction 2016-12-06 Jim Piramo (Indianhead Estates neighbor) Dust Site inspection occurred same day, could not evaluate dust conditions due to high wind, site had been shut down due to high wind, water trucks operating, no citation Note occurred during initial construction 2017-02-21 Jim Piraino (Indianhead Estates neighbor) Dust Site inspection occurred same day, could not evaluate dust conditions due to high wind, site had been shut down due to 18695571 EXHIBIT A Summary of Complaints Complaint Log Date Complainant Nature of Complaint Disposition high wind, water trucks operating, no citation Note occurred during initial construction 2017-05-01 Dave Kisker (Indianhead Estates neighbor) Dust Site inspection occurred same day, limited dust observed, no citation Note occurred during initial construction 2017-05-01 Jim Piraino (Indianhead Estates neighbor) Dust Site inspection occurred same day, minimal dust observed, no citation Note occurred during initial construction 2019-01-10 Ed Suppes (neighbor) Dust Site inspection occurred, no visible dust emissions 2019-02-07 James Taloumis (County Inspector) Dust Inspector noticed fly ash dust, informed facility operator, facility operator shut down plant and replaced malfunctioning pressure switch 3 1869557 1 Complaint Report Case Number CP-1600187 Type of Complaint Air Received by James Taloumis Complainant James Piraino Address CO Phone Number 9703001000 Complaint Address 27486 CR 13, WELD, CO 80537 Property Owner Gerrard Investments LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 10/19/2016 2 10 21 PM Discription of Complaint Date of Incident Received phone call from complainant at 11 49 A M left message Called complainant back around 12 20 Complaint that there have not been water trucks onsite for the past few hours and that the dust has gotten really bad out there Conducted an inspection of the site starting at 14 00 Observed 2 water trucks onsite at the time of the inspection Very minimal dust observed onsite at the time of the inspection Photos attached in file Called to notify MM at 15 30 that we had received a complaint Close out complaint Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1600200 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address CO Phone Number 9703001000 Complaint Address 27486 CR 13, WELD, CO 80537 Property Owner Gerrard Investments LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 8/30/2016 3 31 43PM Discnption of Complaint Date of Incident Martin Marietta dust complaint Sent in photos that were taken on 8/29/2016 of dust on the property complainant stated that there were no water trucks onsite at the time of the bad dust Sent in photos showing dust onsite Inspection conducted by Ben Fussell on 8/30/2016 at 1 05 PM to 1 30 PM Inspector observed water trucks onsite at the time of the inspection Did not observe any offsite dust at the site Attached letter sent to Martin Marietta regarding dust on 8/30/2016 Close out complaint Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1600254 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address Phone Number Complaint Address 27486 CR 13, CO Property Owner Gerrard Investments LIc Property Owner Address Property Owner Phone Number Discription of Complaint Received the following email on Friday October 7th regarding dust onsite on Monday October 3rd James, Issues continue almost daily None today due to the recent rain Date/Time 10/19/2016 2 09 37PM Date of Incident This photo was taken by my neighbor Karl Scott on Monday, October 3rd at 1 53 PM additionally the day' we had 20 mph winds was a disaster The water truck could not keep up, not even close In the past the neighborhood has funneled complaints to Dave Kisker who then forwarded them to your department I suspect it was viewed as one person complaining and thus not getting your attention I suggest you might want to interview our neighbors first hand Just as the BOCC make claim that MMM operation hours are during the day when most neighbors are working and won't be seen or heard, so are these dust violations Those of us who are retired or work from home deal with it daily My wife complains of having to keep the windows closed the mail "feels gritty" , our furnace filter requires cleaning or changing and the worst yet my wife commented to me that she had bad allergies issues this year Let me state clearly, my wife does not suffer from allergies' Ironically, when we left the neighborhood to run errands or on a recent trip to Branson, MO her symptoms disappeared Once again, I expect your response to be "we have to catch them in the act, your input is not enough to issue a citation or enforcement " yea I get it' Do something please' Jim Piraino PS Look carefully at the photo even the UPS driver is distracted Name of Inspector/Investigator Investigation Findings By Date/Time r Complaint Report Case Number CP-1600298 Type of Complaint Air Received by James Taloumis Complainant Vicki Wilson Address CO Phone Number 9705905169 Complaint Address 29486 CR 13, CO Property Owner Gerrard Investments LIc Property Owner Address 29486 CR 13 Property Owner Phone Number Date/Time 10/25/2016 10 06 50AM Discnption of Complaint Date of Incident The noise is absolutely ndiculous at early hours of the morning However, I am more concerned about the dust and the allergens from the dirt and movement of the air right now I left my car out for an hour yesterday after washing it and it was completely covered with dirt particles I happened to be on the north central side of Indian head west and I experienced this much dirt in an hour, I can't imagine what my friends on the southside experience I continue to be appalled that this project was allowed to move forward while in litigation Thank you for listening Conducted dust and noise investigations on both 10/21 and 10/25 Did not observe any violation of either the State land use permit or the site USR conditions relating to dust and to noise Close out complaint See opacity log and noise investigation log Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1600332 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address 27760 Hopi Trail CO Phone Number 9703001000 Complaint Address 6433 CR 56, WELD, CO 80537 Property Owner High Rail Holdings LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Discription of Complaint Following email sent by complainant Commissioner Conway, Date/Time 10/27/2016 10 02 00AM Date of Incident As a member of the Board of Directors of the Indianhead Estates West HOA, I wish to call to your attention the concerns of our neighborhood Although the section 106 appeal of the Martin Marietta project is pending, the following comments are independent of that activity and need to be addressed since you are the Commissioner that is coordinating the health department " I wish to bring to your attention the string of mails below that clearly show concerns for our health and wellbeing These concerns are simply brushed aside and explained away with the typical rhetoric from Martin Marietta Complaints to the Health Department are met with ,thanks for contacting us, but WE have to catch them in the act of code violation, so if it happens again call use, I and my neighbors are well aware of what the code allows and what it does not In my opinion, there are violations almost daily which we have photographed and submitted as evidence that the problems are real Meanwhile the dust continues, You are in an election cycle and seeking votes, you help in this situation will go a long way to earning those votes' Jim Piraino 27660 Hopi Trail 970 300 1000 Conducted inspection on 10/28/2016 from 0840 to 0900 for noise at the complainants property line Conducted a method 9 evaluation for dust from 0917-0932 Noise study form is attached to complaint Dust method 9 form is attached to complaint No violations were observed Name of Inspector/Investigator Investigation Findings By Date/Time Complaint Report Case Number CP-1600397 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address Phone Number 9703001000 Complaint Address 27486 CR 13, WELD, CO 80537 Property Owner Gerrard Investments Llc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number' Date/Time 11/8/2016 4 49 46PM Discnption of Complaint Date of Incident Received phone call at 12 47 stating that dust was bad onsite Got to site to take a full method 9 reading by 13 15 Started readings at 13 20 There were times when there was some visible emissions of dust that were 5-10% opacity No violations noted At 13 30 a water truck sprayed the area where visible emissions were noted stopped doing readings at that point Complainant was notified Name of Inspector/Investigator James Taloumis Investigation Findings No violation noted No visible emissions Attach a map of property By James Taloumis Date/Time 11/8/2016 12 00 i Complaint Report Case Number CP-1600426 Type of Complaint Air Received by James Taloumis Complainant Address Phone Number Complaint Address 27486 CR 13, WELD, CO 80537 Property Owner Gerrard Investments LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 11/15/2016 3 34 46PM Discription of Complaint Date of Incident Received complaint that the dust was bad onsite due to dumping of dirt to create a berm Went onsite for an inspection from 1530 to 1600 Did not observe any visible emissions of dust at the time of the inspection Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1600427 Type of Complaint Air Received by Cindy Salazar Complainant Pete Straub Address 27793 Hopi Trail CO Phone Number Complaint Address 27486 CR 13, WELD, CO 80537 Property Owner Gerrard Investments Llc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 11/23/2016 9 28 36AM Discnption of Complaint Date of Incident Received call at 2 30 pm on 11/16/16 Call was that there was severe dust onsite and some traveling offsite After receiving the call, the inspector drove out to the site for an inspection and was onsite by 3 10 Did not observe any work occurring onsite other than a water truck spraying Left site at 3 40 Spoke with Martin Marietta representative who stated that they had closed the site at 2 45 due to high windspeed This matched with observations noted during the inspection No violations were observed Name of Inspector/Investigator Investigation Findings By Date/Time Attach a map of property Complaint Report Case Number CP-1600519 Type of Complaint Air Received by James Taloumis Complainant Karl Scott Address CO Phone Number 3033599430 Complaint Address 6433 CR 565, CO Property Owner Property Owner Address Property Owner Phone Number Date/Time 12/6/2016 11 23 17AM Discription of Complaint Date of Incident Received complaints at 1350, 1530, and 1550 from general area NE of the site Complaint email noted below James Today could well be the worst dust situation we have faced The winds are blowing dust in the most severe fashion Although Martin Marietta has halted operations do they not have an obligation to suppress the blowing dust that would not be a problem is not for their grading9 I have photos but believe you should visit the site personally My wife and I are dealing with nasal issues that when expelled contain dirt' Please advise Jim Piraino 9703001000 Noted that windspeed in the area reached sustained 30 mph at 1400 Contacted Martin Marietta regarding the complaint MM had shut down the site starting at 1340 When windspeed reaches 30 mph, the site is required by their GP03 to shut down the site and cease their operations They are also required to keep using their dust abatement plan even when closed for high wind conditions Their dust abatement plan was reported to be in use by both the complainants and source Did not conduct a method 9 observation in response to the complaints as there were windspeeds greater than 30 mph can only conduct observations when wind is < 30 mph There was no violation Close out complaint Name of Inspector/Investigator Investigation Findings By Date/Time Complaint Report Case Number CP-1700122 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address 27660 Hopi Trail CO Phone Number Complaint Address 6433 CR 56, WELD, CO 80537 Property Owner High Rail Holdings LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 2/21/2017 2 05 43PM Discription of Complaint Date of Incident Received an email at 0700 from Jim Piraino regarding the dust at Martin Marietta There was a photo included in the email showing a significant amount of dust Called Keith Horton with Martin Marietta A delay was ordered at 0633 today with water trucks scheduled to run all day to keep the dust down All site activities were halted at 0950 Checked the current wind speeds for the Fort Collins/Loveland airport Current windspeed of 33 mph with gusts up to 39 Site should be closed but cannot do any readings due to high wind speed Source states that they are going to run a water truck all day today to keep it down as much as possible in accordance with their dust abatement plan Received complaint at 0702 from complainant in Indian Head Estates Complaint that dust was very bad at time of complaint and included a photo showing dust onsite Called Martin Marietta at 0945 regarding the complaint Stated that they had put operations on hold starting at 0633 and had never started grading operations The water truck was put out onsite to water all day at this point At 0950, the official email was sent out closing all work operations at the site for the day Wind speeds at greater than 30 mph all day could not conduct opacity or off property transport readings Name of Inspector/Investigator Investigation Findings By Date/Time Attach a map of property Complaint Report Case Number CP-1700179 Type of Complaint Air Received by James Taloumis Complainant Dave Kisker Address CO Phone Number Complaint Address 27486 CR 13, CO Property Owner Gerrard Investments Llc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 5/1/2017 2 45 28PM Discription of Complaint Date of Incident 04/18/2017 Received complaint on 4/18/2017 at 1 50 P M that there was dust crossing property line of the Martin Marietta facility onto the property to the North On 4/18/2017 at 4 30 PM, Ben Fussell was onsite to observe fugitive dust emissions from the property Observed water truck onsite and some occasional dust Received video on 4/19/2017 from Dave Kisker showing trucks creating dust onsite while driving along the north property line and showed no water trucks at the time of the video Spoke with Martin Marietta regarding the dust situation onsite Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1700180 Type of Complaint Air Received by James Taloumis Complainant Jim Piraino Address CO Phone Number Complaint Address 27486 CR 13, CO Property Owner Gerrard Investments LIc Property Owner Address 27486 COUNTY ROAD 13, LOVELAND, CO 805348207 Property Owner Phone Number Date/Time 5/1/2017 2 44 03PM Discnption of Complaint Date of Incident Complaint received at 1347 from neighbor in Indian Head Estates Complaint was that the dust onsite was worse than it was yesterday Sent video in email Went out for an inspection at 1600 and conducted a Method 9 evaluation There was no visible dust from the property The only dust in the vicinity of the site was coming from an adjacent farm where the farmer was tilling a field and fugitive dust was created This activity would be ag exempted Notified Martin Marietta of the complaint and the results of the complaint investigation Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1900009 Type of Complaint Air Received by Isabelle Vazquez Complainant Ed Suppes Address CO Phone Number 9703960930 Complaint Address 27486 CR 13, WELD, CO Property Owner Gerrard Investments LIc Property Owner Address 27154 COUNTY ROAD 13, JOHNSTOWN, CO 805348205 Property Owner Phone Number Date/Time 1/10/2019 8 30 13AM Discription of Complaint Date of Incident Complaint of dust from truck traffic at the Rock and Rail facility Will follow up Went out to the area on 1/8/2019 There was truck activity onsite, but there were no visible emissions observed from any activity occurring No opacity reading conducted as there were no visible emissions to observe Emailed Erin Kunkel and received the following response I spoke with our onsite staff and they have conveyed to me that we did not complete any specific activity onsite that may have caused excessive fugitive dust emissions on either Thursday or Friday After speaking with them, we determined that the loader operator moved a small amount of material on Thursday, but the activity occurred for less than 30 minutes and did not deviate from our active air permits Close out Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time Complaint Report Case Number CP-1900036 Type of Complaint Air Received by James Taloumis Complainant Address Phone Number Complaint Address 27486 CR 13, WELD, CO Property Owner Gerrard Investments LIc Property Owner Address 27154 COUNTY ROAD 13, JOHNSTOWN, CO 805348205 Property Owner Phone Number Date/Time 2/7/2019 9 54 45AM Discription of Complaint Date of Incident Observed high opacity fly ash dust being emitted from the Rock and Rail HWY 34 facility while driving by on HWY 34 coming back from an inspection Inspector stopped and took method 9 readings and the average opacity was 32% Inspector did not have time to stop in and conduct a partial compliance evaluation on that day Inspector notified source of the observation conducted on 2/4 (the following Monday) via email The inspector was out of the office on 2/4 and 2/5 and returned on 2/6 and sent the source a copy of the readings on 2/6 The source reported this as a malfunction event to the Division on 2/5 (one day late) Met with the source on 2/6 to discuss the malfunction The source indicated in their initial malfunction report that a contracted flyash deliver driver began offloading material into one of the silos of the Ready Mix Plant Minor dusting was observed by the QC team at approximately 9 30 am Approximately 15 minutes later the plant team noticed additional dust and proceeded to immediately shut down the plant Once the plant was shut down, the batchman was able to inspect the silo and dust collector They found that the pressure switch in the silo had malfunctioned After a thorough inspection, the switch was fixed and dust was not observed again after restarting the plant The source indicated that a safety valve in the baghouse at the top of the silo malfunctioned and made it so that the baghouse filters on that silo were not being pulsed with air to shake of the fly ash dust The filters are normally pulsed on a regular basis, and that day, the switch that controls the timing of the air pulse broke and prevented the baghouse filters at the top of the stack from being pulsed and removing excess dust The dust then built up on the filters which prevented airflow through the filter and the air pressure in the silo eventually built up and caused the safety hatch to blow off the top of the stack releasing the fly ash emissions The source is planning on implementing some additional measures to ensure that this does not occur again The source is going to be training loader operators on method 9 so that they can recognize opacity issues and shut the plant down faster They are also planning on installing a camera on an operator building to the SE of the plant that watches the top of the silo and allows the operator to shut the plant down if they observe any opacity issues Name of Inspector/Investigator Investigation Findings Attach a map of property By Date/Time EXHIBIT � 77 a CHAPTER 2. ra:�i+u=::• '��.'. �. rrria.:i._ LOVELAND LCR18 -- AMP Ilia CI: 6U �1 R- 56 CENTERS Village Center Johnstown Gateway Gateway Center DOWNTOWN Downtown (Set dtwtin:or sn framework t n ) DISTRICTS Employment Commercial 4 w r ISIC !If BERTHOUD NEIGHBORHOOD(S) eis 4 I WW I I I i WCR42I I WINDSOR . i • I •• • i I• ` I a . IMP.p M r- I al. OW MULTI -MODAL CORRIDORS Conservation -oriented Agricukunl/large Lot Residential Residential Mixed -Use Low Density Residential (avg. 3 du/at) Medium Density Residential (avg. 6-8 du/ac) Public/Institutional PARKS & GREENWAYS Greenways Commercial Mixed Use Park/Cemetery Johnstown Comprehensive Plan Freeway Expressway Major Arterial Minor Arterial Local Roads Railroad Community Trail Pnmary Greenway GREELEY a as a a I .I • .• ••• Leer a - - 1 r • a . +r IMO 1 • • • - - 1 I }1 r. :2st MILLIKEN Land Use Framework Plan ors CS Johnstown GMA Boundary Town of Johnstown e: Town of Jc mtarr.. !DM November 2006 EDAW I AECOM Johnstown Area Comprehensive Plan 2-5 GROWTH STRATEGY EXHIBIT I 78 ■ le MI • • • • • • • 4 • • .... 8O 1 r L r J 1 13 CHERRY BLOSSOM AI LONGS PEAK • • • • • • • • 34 I I I I I I I I L 60 72 • • • • • • • • • • • • • • 20{, AMEND s Key De\eloped Areas P" r Rry Growth Area Comr7itted Growth Area Secondary Growth Area j ertiary Growth Area I I I I 19 I I a 70 1- — i 21 I • • •` • r— •; I I I I L_.1 I L2t7 L Windsor Incoporated Area ♦ ° Growth • Management Area . . ••• 3 -Mile Planning Area i� • . . • • • • • • • • • • • . 60 (392, i -J I 62 5.19 II\IN-\III 37th Si Johnstown "3+ It }I INSri )\t & O z W 0 W J Windsor 1\ I`.I rlt tit US 34 Industrial Area 3La#s$ttWCR 54 p ere ,/ K Employment Uses Business Parks, Major Employers Industrial Uses Industrial Parks, Major Employers Natural Uses Parklands, Open Space .,b ►loth St• ct 3 LAND USE GUIDANCE AREAS* lbth SI_ xlensrnn 'Land use areas generated from an analysis of Topography Data, Transportation Features (Rail, Highway, Airport Access), Areas of Ecological Significance, Commercial Gravel Deposits, Floodway B Floodplain Information, Hydrography (Canals, Ditches, Draws etc), Regional Features, visibility, and existing Regional Uses gisej 479*.reAo' 1 ae Cr og O 4e ae (se(� \�i(' ; Commercial Nodes Special Uses UNC, Aims, NCMC, Downtown Multimodal Corridors Planned transit corridors 13th Sl I.\S\III MC -1616'S S 0 5 7th St twck 51I He' 50 LONG RANGE EXPECTED GROWTH AREA (LREGA) Area within which the community expects to grow within the next 20+ years. Subject to Cooperative Planning Areas and IGA's. Updated via annual Capital Improvement Project (CIP) Assessments S twCR 64 WER•52 • .Vt.R•62si Gr ley-W,iel'd Airpart TRANSPORTATION dra\n/ U.S. Highway IN,se State Highway • Major Road Railroad 1i �.It..vl• h t�. iiikSF.\ r• CC V cc 3 Water Features (milt V V Clreele All plantmetnc data was digitized from aerial photographs dated May. 2005 Updates are continual and data representations wilt change over time This product is not necessarily accurate to engineenng or surveying standards but does meet National Mapping Accuracy Standards (NMAS) The information contained within this document is not intended to be used for the preparation of construction documents information conteMaid that document 'smart the property Wm City of Greeley Copying any portion of this map without the h.+leten permission of the City of Greehey is ,tndty prohibited Front Range MPO 2010 Land Use Allocation Model viss uti34FkRc EXHIBIT SO iA ''I (//;is. Js, 1v. L ri, HERE. DeLorrne, U5 . I; ' ip. INCREMENT P NRCan, Esn Japan. METI Esri China (Hong Kong), Esri Korea, Esri ii Mapmylndia, NGCC. © Opt: l..ti,:r.tMap contributors and the GIS User Con inunuty Legend LUAM Future Land Use Description Agriculture Commercial Industrial Mixed Use Open Space Public Residential Transition World Street Map 1 inch = 0.89 miles 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations FREIGHT MANAGEMENT AND OPERATIONS Table of Contents FHWA Freight and Land Use Handbook 2.0 Freight as a Good Neighbor — Land Use, Transportation Syster. Environmental Considerations 2.1 Purpose and Content EXHIBIT The previous section discussed some of the positive benefits of freight movements — including jobs, increased tax revenue, and supporting the demands of growing just in time" consumer markets. Unfortunately. if not properly planned. freight movements and related land uses also have the potential to produce negative environmental impacts. including noise and light pollution, unwanted odors. vibrations, safety concerns. and impacts to regional air and water quality. These impacts can be mitigated. to a great extent. by careful and smart regional planning, local land use and zoning, site and facility design, and operational considerations. However, these enhancements are only possible if they are implemented as part of a public transportation planning and land use planning. and zoning and permitting processes. If freight planning and land use decision -making activities are well integrated, both the public and private sector may benefit through reduced congestion. improved air quality and safety, enhanced community livability, improved operational efficiency, reduced transportation costs. and greater access to facilities and markets. The freight community can be considered "a good neighbor. when such a balance between economic activity and external impacts is achieved. The purpose of this section is to review a range of strategies and tools that have been used successfully to ensure that freight land uses have a positive relationship with surrounding land uses. Throughout the section, "best practices" will be used to illustrate how other regional authorities and cities have successfully implemented freight uses into their land use fabric. Since land use and zoning rules, and responsibilities of public agencies regarding them vary widely from place to place. "best practices" were drawn from agencies of all sizes. and reflect freight and community needs in urban, rural, and suburban areas alike. A number of "critical success factors" are identified in each case, which are intended to provide key lessons learned and guidance to a variety of stakeholder and agency types. Section Organization This section will provide regional and local -level tools, strategies and resources to ensure that freight is a good neighbor. These tools strategies. and resources will be focused in five areas • Appropriate and Coordinated Land Use Policies — identifies land use policies. including regional visioning and planning, local zoning and transportation policies. and site -specific policies and practices addressing context -sensitive design and access to industrial and freight transportation facilities. • Effective Transportation Systems and Services — presents suggested ways of improving transportation systems The development and maintenance of transportation systems that can effectively, efficiently. and safely accommodate freight and passenger traffic can help freight systems be better neighbors in a community or region. • Effective Operations and Management Policies — provides examples of policies to operate and manage transportation systems in order to reduce peak -period demand, and therefore. reduce congestion, and in ways that produce fewer negative impacts to quality of life and the environment. • Education and Outreach — describes how state and regional agencies, by educating themselves and providing technical assistance to local jurisdictions and other agencies and authorities. can effectively engage private stakeholders and develop effective land use and transportation policies. • Putting it All Together — demonstrates, through a series of detailed case studies, how several government agencies throughout the country have tied each of the previous four sets of policies and practices into a successful program. Table 2.1 Examples of Freight and Land Use Integration Strategies and Tools Policy Area Strategy/Tool Case Study Goals Examples Appropriate and Coordinated Land Use Policies Effective Transportation Systems and Services Regional visioning and scenario planning Incentives to reinvest in existing industrial space - e.g., tax credits Creating buffers around freight Using zoning tools to preserve industry and limit freight impacts Promote context - sensitive site and building design features Freight - exclusive facilities Pittsburgh Region "Power of 32" Connecticut Urban and Industrial Reinvestment Tax Credit Program Vancouver, Washington pedestrian bridge Baltimore, Maryland Maritime Industrial Zone Overlay District (MIZOD) Layton City, Utah manufacturing (M) zoning code Port of Seattle Central Waterfront Project mitigation I -S Truck Lanes Sets regional stakeholder goals and gain common understanding between different levels of government Offers tax credits as an incentive to (re)develop in urban and industrial areas, provided performance criteria are met Provides safe means for residents to traverse a freight facility Provides space for manufacturing where appropriate infrastructure and adjacent land uses exist, and protect industry from pressures to change use Reduces the noise and vibration, light, aesthetic, and local air quality impacts of freight facilities on neighboring land uses Reduces the noise and vibration, light, aesthetic, and local air quality impacts of freight facilities on neighboring land uses https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 1/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations Effective Freight Operations and Management Education and Outreach Effective truck route networks Arroyo Grande, California truck route network Offering Boston downtown incentives for delivery hours off-peak delivery Technical assistance to local jurisdictions Atlanta, Georgia - Atlanta Regional Commission Ensures truck routes avoid sensitive areas and link with truck routes in neighboring jurisdictions. Spreads truck traffic times across a wider timeframe, as well as increase their efficiency because of decreased road congestion Ensures that local land use policy -makers are informed of freight needs and can help codify freight and land use integration best practices 2.2 Appropriate and Coordinated Land Use Policies As described in Section 1.0, agencies at all levels of government have responsibilities regarding transportation and land use planning. Through goods movement studies. corridor studies. modal plans. and other planning efforts. state and regional agencies collect and publish data on goods movement, on economic activity. and on changing land use patterns at the state and regional level. These agencies establish policy guidelines and offer technical assistance to local jurisdictions. which have zoning authority. Local comprehensive planning and zoning authorities have the responsibility of establishing areas for residential. institutional, commercial. industrial. and other types of zones their areas require while ensuring that the various types of land uses can coexist, and minimizing impacts on residents and businesses. One important way to make sure that freight is a good neighbor is to implement appropriate land use policies. and to coordinate those policies among various local initiatives and between agencies in neighboring jurisdictions. The planning process. whether through regional transportation planning or local land use planning, can facilitate this interaction and problem solving. This section demonstrates how regional and local agencies can work together through the use of land use strategies, tools. policies, and practice. to include industrial and freight generating land uses, while minimizing their impact on other, sensitive land uses. Example of Regional Visioning Process Recognizing the Needs of Freight Land Uses — Pittsburgh, Pennsylvania region The "Power of 32' is a regional visioning effort launched in May of 2009. The goal of the process is to allow every resident of the 4 -state. 32 -county region to participate in creating a shared vision for the region's best future. Representing the economic region centered on metropolitan Pittsburgh. the process recognizes and communicates the importance of freight land uses such as manufacturing. research and development. and fuel extraction to the region's economy and has taken steps to include freight -intensive land uses. and the transportation infrastructure supporting them. in the visioning process. The region's vision includes strategies to help businesses find suitable development sites, including those with existing utilities. transportation facilities, and/or in existing industrial or commercial areas. The effort also includes an extensive outreach and education program to communicate the importance of the region's major industries to its economy. and to receive constructive feedback from stakeholders and the public. In addition, the group's steering committee includes representatives of many of the region's major shippers and receivers. The Power of 32 effort is a good example of how statewide and regional agencies can work together to address multijurisdictional freight and land use issues. It is also a good example of how private sector freight stakeholders can participate in the process. Source. Regional -Level Strategies and Tools Land use is generally planned and implemented at the local agency levet using the comprehensive plan. zoning code, and permitting system as reviewed in the previous section. However. many regional agencies. such as Metropolitan Planning Organizations (MPO) are recognizing the importance of linking freight transportation and land use planning, and are learning to find ways to guide or educate local jurisdictions without infringing on their sovereignty. As such, strategies and tools at the regional level involve guidance in locating major freight -generating uses (such as manufacturing centers, distribution centers. etc.) within the region, as well as gaining regional planning consensus. and suggesting regionwide policies and approaches. Some strategies and tools implemented by regional agencies include scenario planning. preferential zoning and tax relief programs. Scenario Planning Scenario planning is a collaborative visioning exercise which analyzes trends and alternative futures regarding forces such as health, transportation, livability issues. economic. environmental. and land use patterns, that affect the transportation needs of a community or region. The Federal Highway Administration (FHWA) encourages and supports scenario planning that is focused on transportation issues. From a freight perspective. changes in demographics (e.g., aging populations or changing population densities), advancements in alternative fuel technologies. fluctuations in fuel prices, climate change and associated policies. and economic variability can result in radical changes in global supply chains. influencing where raw materials are sourced, where goods are produced. and where and how they are transported to consumer markets. Shifts in global supply chain patterns can have significant implications for local and regional governments in the United States. For example. in scenarios in which diesel fuel prices become volatile, advancements in alternative fuels or mode shift from truck to rail may accelerate. Such an outcome could result in changes in distribution networks, industry location decisions. and truck and rail travel patterns at the global, national and local levels. At the local level. land use policy scenarios that account for current trends versus "smart growth" scenarios could demonstrate the impact of land use policy decisions on economic development and land use conflict issues. The specific issues addressed by a scenario planning process will depend on the priorities of the community, region. or study area engaging in the exercise. The engagement of freight stakeholders. including the public at large. is therefore required in order to develop a collaborative vision of a desired future, and principles that guide the development of the trend and alternative scenarios. FHWA published the Scenario Planning Guidebook which helps agencies understand and engage in the scenario planning process. The guidebook suggests six phases that agencies are likely to encounter when implementing scenario planning process. The phases are: • Phase 1: How Should We Get Started? Scope the effort and engage partners. • Phase 2: Where Are We Now? Establish baseline analysis. Identify factors and trends that affect the state, region. community or study area. • Phase 3: Who Are We and Where Do We Want to Go? Establish future goals and aspirations based on values of the state. region. community or study area. • Phase 4: What Could the Future Look Like? Create baseline and alternative scenarios. • Phase 5: What Impacts Will Scenarios Have? Assess scenario impacts. influences. and effects. • Phase 6: How Will We Reach Our Desired Future? Craft the comprehensive vision. Identify strategic actions and performance measures. (FHWA Scenario Planning Guidebook. Federal Highway Administration.) Tax Relief Programs to Preserve Freight —Dependent Land Uses https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 2/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations Although the redevelopment of former industrial sites for residential and/or commercial land uses near many city and town centers is acting as a force to push freight development to the fringes of many metropolitan areas. regions and states are finding that preserving industrial areas can contribute to economic vitality and a variety of other regional objectives, such as limiting -freight sprawl" and associated impacts. (Freight sprawl can result in increased truck vehicle miles traveled (VMT), introducing significant air quality, congestion. safety. pavement issues. and other implications. Local and regional planning agencies sometimes facilitate this process because uses such as residential, commercial, or tourism are seen as preferred ways to foster economic development and expand the tax base.) Tax incentives are among the tools states, regions. and municipalities can use to encourage the preservation of industrial activity on existing industrial sites. Recognizing the public purpose provided by private rail services (such as job creation or retention. reduced congestion. reduced fuel consumption and emissions reductions), some states grant property tax relief for certain rail properties. The Federal Government offers tax credits (ranging from 10 to 20 percent) to businesses that rehabilitate existing and/or historic industrial buildings. Many states and municipalities offer additional incentives to encourage reinvestment in existing industrial buildings or parcels. Figure 2.1 Creating Buffers or Separation Between Industrial Land Uses and Other Land Uses Example of a State Tax Relief Program — Urban and Industrial Reinvestment Tax Credit Program, State of Connecticut Department of Economic and Community Development The Urban and Industrial Sites Reinvestment Tax Credit Program is an example of an economic development tool that a state may develop in order to steer investment to urban centers, economically distressed communities, and existing or former industrial sites. Under the Connecticut program. the State may provide up to $100 million in tax credits over a 10 -year period to support projects that create significant jobs and capital investment in these areas. The program's expenditures are capped at $500 million by statute. The amount of credits offered to applicants is determined upon the outcome of a comprehensive financial and economic impact review process, including the use of econometric modeling. Eligible projects must demonstrate significant new economic activity. increased employment, additional tax revenues to the municipality and state, and (if applicable) a return of contaminated property to a viable business condition. Candidate projects must be located on an "urban site." defined as 1) a designated enterprise zone, 2) an acknowledged distressed area, 3) a municipality with a population of more than 100,00O, or in on an "industrial site.- defined as a site that has been subject to environmental contamination. Many states offer similar incentive programs to encourage development in desirable areas, such as urban and former industrial sites where appropriate land use regulations and supporting infrastructure are established. Source. Local Policies and Practices Local policies and practices generally refer to issues within a municipality including the existence of truck routes and the access to intermodal facilities. Municipalities and businesses can work together in a number of ways to reduce the conflict between freight and sensitive land uses within communities, such as neighborhoods. schools, playgrounds. or near other areas where freight movement may have a negative impact. Tools and strategies included in this section. therefore. are most likely instituted by the municipality. However. private -sector businesses have also been active in voluntary restrictions to mitigate the impacts of goods movement on the communities that surround them. The following sections highlight some of the "best practices" (including local government policies and business practices) to mitigate the conflicts between freight and sensitive land use at the local level. (Many examples in this section came from NCH RP Report 320.) Example of Industrial Uses and Highway Access — Layton City, Utah Layton City, Utah. provides an example of using zoning codes to ensure that freight facilities are located with appropriate access to infrastructure while avoiding sensitive land uses. In its Municipal Code. Layton City describes characteristics about each of the zones in the zoning code. including industrial uses. It states: The "M" (Manufacturing/Industrial) zoning districts are intended to provide areas for manufacturing and industrial uses, where they will have the necessary services and facilities, and minimize obtrusions by adjoining uses and districts. These districts shall be located near rail lines and shall be near interstate highway interchanges for ease of transportation of goods. In order to minimize conflict among incompatible usesmost non -industrial uses are not allowed in the -M" zoning districts. Source. Creating Buffers or Separation Between Industrial Land Uses and Other Land Uses https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 3/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations One method to reduce the impact of freight on the rest of the environment is to minimize the interference of freight on communities quality of life. This can be achieved through the construction of physical barriers. freight routing. and others. Examples are discussed below. • Create walls around freight corridors or create pedestrian/bicycle paths to make crossing of freight facilities safer. Pedestrian crossing of freight rail facilities and major highways is a safety concern. which governments and businesses can mitigate through the construction of walls to discourage pedestrian crossing of railways and highways. A better but more expensive option is to build pedestrian crossings over the facilities. • Build sound walls or berms around areas with freight activity. Installing these can reduce noise and light pollution. These types of structures can be mandated in zoning codes for specific sites or can be required through agreements between the surrounding community and the facility. Trees or tall plants can also act as a good visual barrier to freight centers. • Include buffer zones around freight generating sites. Creating a buffer zone between freight intensive activities and the rest of the community can insert space between two incompatible land uses. The buffer could take the form of open space. or make use of the concept of "stepping up" land uses. which refers to incremental increases in land use intensity over a given area. Intermediate land uses such as retail or office. may be located between freight -intensive land use areas and sensitive areas such as residential areas and schools. The intermediate land uses should be less sensitive to industrial and freight activity. and impose fewer impacts on sensitive areas. The use of buffers in this manner reduces noise and air quality issues that increase with proximity to heavy industrial and freight -heavy facilities. Figure 2.2 Creating Buffers between Industrial Land Uses and Other Land Uses Upgrade Rail Crossings with New Technologies The public and private sectors are developing and deploying technologies to reduce hazards at at -grade rail crossings. These new technologies include installation of median barriers (raised islands with markers mounted atop). four -quadrant crossing gates, and intelligent signal monitoring systems, which provide notification when the grade crossing mechanisms have failed. (Luczak. M., "Beating Back the 'beat -the -train Brigade. Railway Age, July 1999.) Example of Construction of a Bike/Pedestrian Bridge at a Major Railyard — Vancouver, Washington Washington State.DOT (WSDOT) provides an example of how an investment in a pedestrian bridge can effectively connect neighborhoods, and provide safe travel for residents over a busy freight facility. At one of the busiest railyards in the Pacific Northwest. located in Vancouver. Washington, WSDOT is improving pedestrian and bike safety by constructing an overpass over tracks near the railyard. In addition to providing a safe separation of pedestrian and bicycle traffic from the railyard freight activity. this crossing will improve connectivity between neighborhoods in this Portland suburb. Source. Utilize Zoning Powers Zoning can be used to guide the development of industrial land uses, such as new freight warehouses or intermodal facilities, near major highway access points. It is recommended to locate new warehousing facilities close to major truck routes. such as interstates. The closer these freight generators are to major highway infrastructure, the fewer miles trucks will need to move on local roads before moving onto highways. The same can be said for intermodal facilities. Airports. rail/truck terminals, and seaports should have proximate and adequate freeway access to avoid truck movements on local roads. While facilities generating large volumes of freight should be located away from sensitive land uses. some industrial and retail activities which generate smaller volumes of freight activity may be allowable or even desired within multiple -use communities. Tools such as zoning overlay districts and preferential zoning can establish parameters to accommodate those activities while minimizing external impacts on surrounding areas. • Zoning overlay districts. Zoning overlays allow for the requirement of fewer or more restrictions on land use types within a zone or a district. Zoning overlay districts are typically designed to promote or discourage a particular type of land use or activity. Zoning overlay districts are often applied to historic neighborhoods in order to preserve scale and design features, or in special industrial areas to preserve endangered or incubate emerging industrial activities. Two examples of zoning tools used in overlay districts include form -based and performance zoning. Rather than segregating all industrial land uses, form -based and performance zoning may be used as tools to accommodate suitable retail and light industrial activities within or on close proximity to residential or multi -use communities. o Form -based zoning. Form -based zoning codes are methods for regulating development by building form rather than by land use. Form -based codes are typically employed in urban districts where mixed -use developments are encouraged, and address the physical and aesthetic relationship of a building to the streetscape and to surrounding buildings. Planners may use form -based codes to require retail and light industrial activities be housed in buildings that conform to neighborhood standards. The requirements may include maximum setbacks from the lot line. restrictions on driveways and curb cuts in front of a building, and establishment of loading areas on the rear facade of a building. away from the street. where possible. The desired form and design principles established in a form -based code are communicated with developers graphically using site plans and street section drawings to limit confusion or misinterpretation. o Performance zoning. While traditional zoning addresses land use types and form -based zoning addresses building form and design. performance zoning codes address the intensity of activity on a given parcel and the impacts of that activity on surrounding areas. Performance codes are more flexible regarding permitted land uses, provided impacts such as noise, odors, light pollution. water contaminants. and traffic generation remain within allowable thresholds. Theoretically, performance zoning could allow industrial land uses to be located almost anywhere in a community as long as the impacts to adjacent properties are not excessive. Communities which adopt performance standards will have to weigh the benefit of reducing the effort required to draft zoning codes and administer variance procedures under traditional zoning codes against the effort required to establish performance criteria frameworks and a system to monitor performance. • Preferential zoning. It is possible to develop zoning regulations that encourage development that meets established planning goals. For instance. if regional stakeholders have determined that the provision/retention of freight -dependent land uses is an important goal. the planning authority can establish special zoning designations based on existing land use patterns and then offer rewards to developers who include desired freight amenities in their plans. These can include incentives such as floor -area -ratio (FAR) bonuses (FAR refers to the ratio of the total floor area of a building to the total area of the parcel on which it sits. Limits on https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 4/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations FAR (often built into zoning codes) thus regulate the intensity of development.) or height limit bonuses. (Height limits are another way agencies regulate development intensity. in this case by specifying the allowable building heights for a property in a particular zone.) Allowing a developer to build to a higher FAR or height will increase the value of the property for the developer. Example of Zoning Overlay to Preserve Freight Activity and Reduce Land Use Conflicts — Maritime Industrial Zoning Overlay District (MIZOD) — Baltimore. Maryland The City of Baltimore s Maritime Industrial Zoning Overlay District (MIZOD) is an example of an effective zoning tool that preserves a limited and desirable resource (waterfront land) for industrial uses in the face of a mixed -use real estate boom that has applied considerable pressure to convert waterfront industrial properties to mixed -use. The City enacted the MIZOD in 2004 to preserve maritime properties with deep water, rail and highway access in order to protect maritime -dependent uses and intermodal freight movement. The goal was to balance the needs of both mixed -use and maritime shipping. maximizing each to the extent possible without harming the other. The City categorized its waterfront into two general districts: Mixed -Use and Maritime Industrial. In the first. mixed -use would be allowed. enabled, and encouraged. In the second, the MIZOD would protect maritime uses by prohibiting conversion of land to non -industrial uses. Establishing clearly defined mixed -use and maritime industrial areas streamlined the development by avoiding costly and time-consuming delays associated with site -by -site decision -making regarding changes of use. It is also credited with protecting the integrity of the maritime area by avoiding the -leapfrogging" of mixed use into maritime areas. The City publishes an annual report to tracks performance indicators such as number of businesses located in the district, number of new permits. property tax collected, cargo volumes. and a survey of firms within or dependent upon the City's maritime industry. The 2010 MIZOD Annual Report concluded that MIZOD protection has allowed companies to feel confident in making significant capital investments in Baltimore, citing a series of recent and planned investments as evidence. The Baltimore experience can serve as an example for other locales experiencing rapid land development and population growth. and other pressures on industrial land uses. Source. Preserve and Maintain Existing Industrial Land Uses Some regions have found that dedicated. preserved space in which to foster manufacturing and industrial land uses is a good way to support the development of freight generating land uses. In addition. by designating this space as industrial land and explicitly discouraging other land uses (such as residential or commercial). it is easier to build infrastructure and policies to support freight land uses. This can include infrastructure considerations — such as buffers or wide turning radii — but can also include supportive policies. for example relaxing any time -of -day restrictions in freight districts that may apply in surrounding residential communities. Supporting brownfield redevelopment for industrial use is another strategy that municipalities can consider. This can be accomplished through incentives and assistance in order to foster freight intensive activities in suitable locations as well as to maintain some freight generating land uses within the urban core. Brownfield development is discussed in greater detail in Section 3.0. Promote Context -Sensitive Solutions (CSS) CSS is an approach used in transportation planning to achieve consensus among project stakeholders. and to ensure that a transportation project (solution) is in keeping with the context of a community's identity. CSS requires the continuous involvement of stakeholders in the process of establishing an understanding of the context, documenting problems and issues, identifying and evaluating alternatives. and selecting a solution. CSS can be an effective process for freight -related transportation projects. as it calls for solutions that are sensitive to surrounding land uses. and it can solve the "freight doesn't vote" problem by bringing private -sector freight stakeholders such as shippers. receivers, and motor carriers into the planning process with community residents and leaders. The outcome of CSS when applied to freight projects should be a solution that addresses the needs of the community. and which has the support of businesses and residents. Examples of building and site design features that could be part of context -sensitive applications are listed below • Orient loading facilities to minimize aesthetic. noise, and pollution impacts on residents, including creating loading bays that are sufficiently large to allow easy truck entrance. egress. and maneuvering. • Consider creating a buffer around all freight generating land uses to preserve land for expansion and prevent encroachment of incompatible uses. Another option is to allow only those other land uses that are compatible with freight activities. • Establish staging areas for freight delivery. Many stores and other facilities receiving shipments do not have staging areas or freight loading docks. Trucks making deliveries must park along the curb or in a parking lot. which can impede traffic flow and cause congestion on the streets around the store. One solution calls for municipalities and other zoning authorities to require on -site, and. preferably, off-street staging areas for facilities and businesses that regularly receive freight shipments. In some cases there may not be sufficient space for on -site loading docks or parking areas. The establishment of common loading areas in multiple -tenant facilities. and/or regulations to effectively manage curbside truck parking may be more suitable solutions. • Reduce light spillage from freight facilities. Often, freight yards or businesses use heavy lighting for security. signage. or other reasons. However. lighting can have negative impacts on neighbors surrounding the facility. as the light might be a nuisance during sleeping hours or at other times of the day. This is referred to as -light pollution." When selecting lighting for a facility, it is important to select fixtures, locations, and lighting orientations that minimize light spilling onto adjacent properties. (Source.) Freight locations located near highways or roadways should make sure that glare is reduced. so that drivers are not distracted by the glare produced by these lights. Glare can be reduced by locating the lights at an angle that minimizes disturbance to drivers. • Employ "Green Port" Technologies. Ports have historically been hotspots for air pollution and GHG emissions, as a result of the high density of truck. marine, and rail traffic at these facilities. As a result. much can be gained in terms of air pollution reduction at these facilities. This includes the following: o Installing electric gantry cranes. o Using modern generator set. or -GenSet- locomotives. which do not consume as much fuel as a diesel locomotive engine. for yard operations or drayage activities and o Improving efficiency of flow through the port through the implementation of appointment systems. virtual container yards. peak -hour truck reduction programs and others. o Installing electric plug-in, or "cold -ironing" at ship berths so that ships do not need to idle their engines to power the ship while in port. Figure 2.3 Flat -lens Lighting Fixtures, Direct light downward, reducing light pollution and glare https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 5/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations Example of Truck Lanes — Interstate 5. California Caltrans, through its implementation of truck lanes on Interstate 5 and other highways. provides an example of managing traffic through freight -only transportation facilities. Caltrans has developed truck lanes on segments of Interstate 5 to facilitate the rapid movement of freight and passenger traffic in a safer, separated configuration. Caltrans and other DQTs throughout the country are examining the feasibility of developing truck lanes and/or truck -only toll (TOT) lanes. Source. 2.3 Effective Transportation Systems and Services In addition to pursuing "good neighbor" land use policies. developing and maintaining effective transportation systems and services is an important element of supporting the freight community and mitigating potential adverse effects of freight. Freight -exclusive transportation facilities such as truck lanes. direct highway connections to freight facilities, and the reduction of at -grade rail crossings are examples of strategies that improve transportation system safety and limit the potential impacts of freight movement on the safety and quality of life of the public at large. Example of Truck Route Language in the General Plan - Arroyo Grande, California The City of Arroyo Grande, a small city with nearly 16.000 residents on California's Central Coast. illustrates how a municipal truck route network should be coordinated with neighboring jurisdictions. and avoid areas containing sensitive land uses. The City includes language in the circulation element of its General Plan that seeks to keep truck movements away from residential areas. The plan states "Truck routes should coordinate with County and adjoining cities designated routes and avoid traversing residential areas." (CT3-4.1) Source. Freight -Exclusive Facilities Many of the issues and challenges associated with freight transport revolve around safety and quality of life concerns that arise when freight vehicles come into contact with passenger modes. At the regional level. motorists and businesses are often concerned with the safety, congestion. and air quality impacts of commercial motor vehicle traffic on major freeways and arterials. Although it is usually recognized that freight movements are essential to commerce and economic growth. there is often pressure to find policies which reduce these negative externalities. One way to mitigate these problems is to establish infrastructure solely dedicated to freight movements. The most common example is truck -only lanes. which are typically implemented as a regionwide network of managed lanes dedicated to trucks. This can reduce freight delays (trucks no longer have to contend with passenger cars for road space) while simultaneously minimizing conflicts between trucks and passenger cars. It can also focus truck traffic on one or more specified corridors — as opposed to having trucks impacting multiple routes in a region. Truck -only lanes are typically planned as tolled facilities (truck -only toll. or TOT lanes), because it is often politically infeasible to raise taxes or use bonding authority to pay for transport infrastructure that is perceived to only benefit the freight industry. This raises the possibility of making the TOT lanes self -financed through user fees or using private capital through a public -private partnership (PPP) arrangement. However. there are some practical considerations which must be evaluated when looking at TOT implementation_ • Tradeoff between limiting access and generating demand. From an operational standpoint. the most efficient TOT -lane configuration would feature limited access points. for example between a port and a major transcontinental Interstate link. However, research suggests that average truck trip distances in many regions are shorter than might be expected. as freight trucks often need to access warehouses and distribution centers nearby other freight generators such as ports or intermodal yards. In this instance. providing access points at just a few locations would discourage truckers making local trips from using the facility More access points may generate additional local demand, but this could come at the expense of operating speeds/efficiency while also increasing project capital costs. Fischer. Michael J.. Ahanotu, D.N.. and Waliszewski, J.M. Planning Truck -Only Lanes. Emerging Lessons from the Southern California Experience. Transportation Research Record No. 1833 1 • Time -of -day distribution of truck traffic. Peak truck travel patterns differ from peak commuter travel patterns largely because truckers strive to avoid the most congested periods of the day. As a result truck volumes often peak in the mid -morning (after the morning rush) and again in the mid -afternoon (before the evening peak), and long -haul trucks are much more likely to operate at night than passenger vehicles. This means that travel -time savings associated with TOT lanes may be https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 6/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations minimal — which reduces demand — unless the roadway in question is congested for most of the day. (Fischer. Michael J., Ahanotu, D.N., and Waliszewski. J.M. Planning Truck -Only Lanes: Emerging Lessons from the Southern California Experience. Transportation Research Record No. 1833.) • Tradeoff between toll rates and demand. Ideally, toll rates would be set in a way that maximizes toll revenues. achieves an acceptable level of service and a high - utilization rate. and diverts a significant number of trucks from local roads to the TOT lanes. In practice it is difficult to achieve all four of these objectives at the same time. since they may work at cross-purposes. For instance. if tolls are set higher than the travel -time savings that truckers would realize by using the facility, they would be unlikely to use the TOT lanes. thus reducing demand and toll revenues without removing many trucks from congested free lanes. (Chu. Hsing-Chung. Implementing Truck -Only Toll Lanes at the State, Regional. and Corridor Levels: Development of a Planning Methodology. Doctoral dissertation. Georgia Institute of Technology. 2007.) Trucker utilization of TOT lanes also is affected by the value and time -sensitivity of the cargo. Replace At -Grade Rail Crossings Rail tracks running near neighborhoods often create safety issues for pedestrians, bicyclists, and motorists looking to cross from one side of the tracks to the other. While expensive. replacing at -grade rail crossings with above or below -grade crossings for these modes will reduce conflicts with freight trains. These may also mitigate the divisive impact of a rail line on the community. allowing for more integration between neighborhoods on both sides of the tracks. Removing an at -grade crossing can reduce noise (no whistle blowing required) and may increase the effectiveness of freight rail operations. If removing at -grade crossings is not an option. upgrading rail crossings with new technologies. such as four quadrant crossing gates and intelligent signal monitoring system. can help make existing at -grade rail crossings safer. 2.4 Effective Operations and Management Policies In addition to providing a safe and effective transportation system, there are a number of strategies that can be implemented to improve the operations of the transportation system to reduce freight impacts. Such operations strategies include incentivizing off-peak deliveries to reduce freight contributions to congestion during peak travel periods, creating "quiet" or "no whistle- zones along rail lines to reduce noise pollution in residential areas, and installing "hush kits- to reduce airplane noise impacts. Incentives for Off -Peak Delivery One way to minimize the freight contribution to traffic congestion in a region is to provide incentives that encourage delivery during off -peak -periods such as nights and weekends. Since one 70 -foot long tractor -trailer occupies space on the road equivalent to 1.5 to 8 passenger cars depending upon the type and condition of the roadway. (Highway Capacity Manual 2000, Transportation Research Board) any reduction in peak -hour truck volumes can yield significant congestion relief benefits. It can also reduce the environmental impacts of goods movement since the time trucks spend idling in traffic typically translates into wasted fuel and increased emissions. Successful implementation of off-peak delivery incentives requires freight carriers and receivers to come to an agreement about delivery times. Modeling simulation research suggests that the businesses that are most receptive to off-peak deliveries are those that would likely be open during off-peak hours anyway, such as restaurants. bars. convenience stores. 24 -hour supermarkets and big -box retailers, and medical facilities. (Silas. Michael S. A Simulation -Optimization Formulation for Design of Off -Peak Delivery Policies.' Rensselaer Polytechnic Institute. presentation dated September 18, 2007. Retrieved April 12, 2010.) The same research also found that off-peak delivery activity is driven mainly by receivers' preferences. This is because the freight transportation industry is fragmented and intensely competitive, which makes it hard for carriers to unilaterally impose delivery times on their customers. The model found a positive correlation between tax deductions given to receivers and off-peak delivery participation rates among both carriers and receivers. This suggests that incentives targeted towards the receivers of freight may have the largest impacts on congestion relief. Such incentives might be paired with discounted truck tolls on nights and weekends, which might encourage carriers to engage in off-peak deliveries where feasible. Example of Restricted Downtown Core Delivery Hours — Boston, Massachusetts The City of Boston offers an example of a management policy that can reduce congestion and limit competition between trucks and automobiles for curb space. Boston prohibits commercial vehicles from using certain downtown streets within the Downtown Crossing area (a high business and commercial area) between 11:00 a.m. and 6:00 pm. This helps to reduce congestion during the evening peak period of 3:00 p.m. to 6:00 p.m. Exceptions are made for trucks with time -sensitive cargoes. including trucks from Brinks. FedEx, and the U.S. Postal Service. Source. At the local level, agencies, ports. and freight carriers can work together to adjust the times during which freight movements occur within municipalities. There are a number of options, which have different benefits and drawbacks: • Encourage off-peak delivery/pick-up times for major freight generators. Major freight generators, such as seaports. can reduce peak -hour traffic congestion by incentivizing goods pick-up/delivery during off-peak hours. For example. the Ports of Los Angeles and Long Beach created a program called PierPASS, which provides incentives for shippers to move cargo at night and on weekends. rather than during congested daytime hours. This leads to reduced queues at the Port which reduces truck idling and therefore has a positive impact on the air quality of surrounding communities. One drawback of this strategy is that off-peak hours usually are night hours, or quiet hours. If the freight facility or port is located in or near a residential area, this strategy may result in increased noise pollution near the facility. • Use an appointment system to schedule delivery of goods to freight pick-up or drop-off facilities. At facilities where numerous trucks are scheduled to deliver or pick up goods every day. it may be beneficial to create an appointment system to clear traffic. For example. if 5:00 p.m. is a very congested time when all carriers would like to pickup goods. an appointment system would require goods to be picked up at the discretion of the business or factory — this would enable the business to spread out the times at which goods are picked up. which can improve operations and lower the number of trucks around the factory at one time. This. in turn, can reduce negative externalities for surrounding communities and traffic. Any appointment system should be developed in coordination with the trucking industry. as it will likely impact company's logistics patterns. labor needs. and scheduling. • Implement restricted delivery hours in the downtown core or create surcharges for peak -hour delivery. This strategy can reduce congestion and potential conflicts between residents and goods movement activities in the downtown core during peak travel times. In some cases (mostly smaller deliveries). this strategy can be coupled with the use of unattended delivery systems (such as electronic drop boxes or off -site collection locations) to minimize the impacts on labor or business opening hours. • Implement restricted delivery hours in residential zones. This strategy can reduce congestion in residential zones during peak personal travel hours or "quiet" hours. The main reason to do this would be to reduce the noise impact from freight movement on neighborhood residents during the least desirable periods for noise. This strategy is not applicable everywhere, as the shifting of truck travel from one period of the day. from nighttime to daytime. for example, may result in negative impacts on traffic congestion. by pushing more trucks onto the road during peak daytime traffic hours. • Modify rail hours of operation to minimize noise/vibrations during "quiet" hours. Trains can create noise pollution due to contact with the rails and their horns. For residences in close proximity to the railroad. vibrations may be another impact felt by residents. One strategy is for railroads to voluntarily move goods only during daytime hours when most residents are not asleep or at home. thus reducing conflicts. This is likely only a potential strategy for smaller. regional "shortline" railroads. Some shortlines. such as the Morristown and Erie (M&E) Railway. have done this. (NCFRP 320.) Promote the Application of Anti -Idling Technologies for Trucks Idling trucks are recognized as a significant source of localized pollution in neighborhoods around the country. A heavy-duty diesel truck engine can burn one gallon of diesel for every hour the engine idles. and emit tons of CO2 and particulates over the course of a year. In many states and locales. truck idling is prohibited for periods longer than a few minutes. One method to reduce truck idling is to use on -board anti -idling technologies such as engine control modules, automatic shut-down/turn-on systems. direct -fired heaters, auxiliary power units, or generator sets. These technologies reduce or eliminate the need to idle the engine, although each has different capabilities (engine control and automatic shut-down/turn-on systems to not address cab comfort or power source needs, for example). and costs to install. Electrified parking spaces can provide electrical power and cab heating or air conditioning while trucks are parked at spaces equipped with the technology. Through the SmartWay Program. the U.S. Environmental Protection Agency (EPA) has partnered with trucking companies throughout the country to upgrade truck fleets with power units, generator sets. and other emissions- https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 7/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations reduction technologies. Government agencies may find it worthwhile to direct motor carrier and locomotive fleet operators to programs like SmartWay for assistance in determining their emissions reduction needs and opportunities. (More information regarding the U.S. EPA SmartWay Program is available from.) Create "No -Whistle Zones" or "Quiet Zones" for Rail While it is a Federal requirement for trains to blow their horns at at -grade intersections, there are some instances where alternate safety measures can be put in place that waive this requirement. The required measures are site -specific and vary per intersection. but can include measures such as four quadrant gates or public education. Communities can apply for "quiet zone designations," but are responsible for all costs to make their crossings qualify. (Source.) Reduce or Mitigate Airplane Noise Aircraft. especially older ones, create lots of noise for surrounding communities. As a result. airlines have retrofitted many of their older planes with hush kits. which reduce the noise produced by aircraft. Newer airplanes are designed with larger fan blades. which turn at a slower speed and emit less noise. Installation of sound -protective walls between airports and adjacent sensitive land uses can reduce the spillage of noise associated with on -airport activities into surrounding areas. In addition, strategies that manage approach and on -the -ground operations, including suggested limits on use of reverse thrust upon landing. limitations on power used while taxiing. and reconfigurations of runways or taxiways (where possible) to direct activity away from residential areas may be implemented to reduce noise impacts. The ability to implement these and other noise -reducing strategies at airports depends upon airport size, space availability. the location and configuration of sensitive land uses near the airport and along approach paths. and day-to-day weather and runway conditions. (ACRP Report 15. Aircraft Noise. A Toolkit for Managing Community Expectations.) 2.5 Education and Outreach Lack of awareness is a key reason that logistics needs are not often considered in planning and development decisions. Local and regional authorities can therefore make sure that its staff members are well educated in freight and land use issues. and can develop and deliver training targeted towards planning and zoning board officials and professional planners that educates them on logistics and freight needs with regard to transportation and land use planning. This can help provide the institutional push to integrate freight into the planning process. Through improving the understanding of material flows. receiving technical assistance and engaging and educating community groups and residents. and industry representatives. dialog about community needs and freight impacts can be undertaken in an educated manner, in which the benefits of freight and the community impacts are understood by everyone at the table. Stakeholder Engagement Freight -dependent businesses may be engaged in zoning and land use planning processes. however, they may not fully understand the transportation implications of zoning and land use decisions. Therefore. it is important for local and regional authorities to "go to them by actively reaching out to the freight generators. For example. a regional body could host a -Freight Forum" bringing stakeholders and local planning agencies together periodically or on a regular recurring basis to discuss freight -related land use needs and issues. Engage Community Groups and Residents The communities who are impacted by freight have legitimate concerns about the noise, vibrations. light. air quality and other impacts they experience. While many communities may find freight an undesirable neighbor. there are strategies that industry groups. possibly with the assistance of government. can implement to engage the community and become a welcome neighbor. • Create a neighborhood investment fund. Freight generating industries or freight carriers themselves can volunteer to give back to their surrounding communities by setting up neighborhood investment funds. These funds can help facilitate local economic development, which improves the lives of those in surrounding communities by adding jobs and improving services. This also can work as a public relations tool for the freight company. as direct investment in the community can lead to better relations with neighbors and local officials. • Hire locally. Another strategy that helps to make the economic benefits of freight uses very evident to nearby communities is to develop an on -site workforce composed largely of community residents. This also can serve to improve private -sector relations with the community and officials. • Create complaint hotlines and open communication with neighbors and the community. It is important to create a way for neighbors and the community to express their concerns. so that they can be addressed as appropriate by the business. Businesses can add such information to their web sites, while the government also can take complaints. if citizens feel more comfortable going to the local jurisdiction for complaints. Technical Assistance to Local Jurisdictions Oftentimes. inadequate consideration for freight in local land use and development decisions stems from a lack of freight provisions in local comprehensive planning efforts and associated zoning codes and land development regulations (LDR). As a result. freight and logistics needs end up as an afterthought in the planning and development review process. This can result in development projects getting approved even if the plans do not include sufficient provisions for efficient freight operations. For example. a freight and land use study in Atlanta found examples of large new mixed -use (residential and commercial) centers with no loading zones. off-street truck parking. or rear access for trucks. This could easily lead to conflicts between freight and passenger vehicles. not to mention pedestrians. The same study found instances of new residential development immediately adjacent to truck and rail terminals (see Figure 2.4). (Mays. Caroline A. 'Integrating Freight and Land Use in the Atlanta Region.' Presentation given November 9. 2008 to FHWA Talking Freight Seminars.) Figure 2.4 Residential Development Adjacent to Freight -Generating Land Use https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 8/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations Source: Atlanta Regional Commission. State DOTs and MPOs can help resolve this problem by educating their own staff members, and other divisions and departments. and by offering technical assistance to local governments. This assistance should cover several key areas, including: • Providing data and modeling tools that quantify freight needs and impacts. Often. state and regional agencies. through transportation planning activities and special studies such as corridor and subregional freight studies, have developed detailed freight data and regional modeling tools and products that local jurisdictions may not have the capability to develop or use on their own. By sharing these data. local jurisdictions may achieve a fuller understanding of freight activity occurring in their areas. weigh the costs and benefits of freight activity to the areas economy and quality of life. and make appropriate policy decisions. • Assisting local jurisdictions in developing coordinated comprehensive plans that consider freight. Because agencies at all levels of government (local. regional. state, and Federal) are engaged in transportation, economic development, land use. and many other subjects of comprehensive plans. the task of ensuring that planning activities are coordinated with other agencies. and neighboring jurisdictions activities can be daunting for local government planners. State and MPO agencies can assist by being engaged in local planning activities occurring within their jurisdictions. participating on advisory committees, and by cataloguing published planning documents for reference. • Model zoning/land development regulations. Since freight is often not considered in local zoning ordinances or LDRs, a regional authority can help by developing model land development and zoning codes for use and adaptation by local agencies. These codes may include provisions for: o Buffer zones between incompatible land uses; o Protecting undeveloped land near freight facilities from encroachment through zoning, easements, or outright purchase of the land (this has the benefit of providing future expansion opportunities for freight businesses): or o Directing warehouse and distribution center development towards sites with multimodal access options. • Develop "logistics supportive design guidelines." Ultimately all development occurs at the site level. so it is important that freight -friendly design requirements are built into the site design and development review process. Regional agencies can provide site layout and building design guidelines that address logistics needs such as loading zones. street geometry. truck routes, and access points. This helps ensure that logistics needs are met for individual projects. Example of Offering Technical Assistance to Local Jurisdictions and Stakeholders — A Lesson from the Atlanta Regional Commission — Atlanta, Georgia The Atlanta Regional Commission (ARC), the MPO for the Atlanta, Georgia region. offers a Community Choices Resource Center, which provides tools and guidance to communities to help them wrestle with land use decisions and (re)development plans. This service is a proven example of how a regional agency can assist local governments in making smart land use policy decisions. Through the Community Choices Program. ARC provides a broad range of tools, staff resources. and technical assistance to help local governments design communities that work for them. The goal is to assist local governments with making good, long-term decisions about where. when and how they should grow in order to achieve the unique and individual vision of each community. ARC has assisted over seven local governments to implement their growth and land use visions. Source. 2.6 Putting it All Together This section highlights, through three detailed case studies, specific examples of how issues in Sections 2.1 through 2.4 have been addressed and mitigated in three different metropolitan regions. Each case study is presented according to the following outline: • Issue Background — insight into the key problem and causes of the issue addressed by the case study plan or initiative. • Approach and Resolution — a summary explanation of the procedure. findings and recommendations each case study plan or initiative identified. • Critical Success Factors — key points or "takeaways that planners in other jurisdictions should learn from the case study subjects' experiences. Table 2.2 Key Issues Illustrated within the Best Practice Review Case Study Key Issues Addressed Chicago Industrial Corridor Program Atlanta Regional Freight Mobility Plan • The importance of preserving industrial and freight -related land uses • Retaining manufacturing in the urban core • Encroachment of residential development onto freight/industrial land uses https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 9/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations • Site design to mitigate freight/industrial noise, light, and dirt Seattle's Urban Mobility Plan • The use of restricted delivery hours in the urban core • Provisions of off-street loading areas and reservation of on -street parking for trucks Case Study: City of Chicago's Industrial Corridor Program and The Metropolis Freight Plan: Delivering the Goods Issue Background Since its founding in 1833, Chicago has been a major transportation hub — growing from a small trade link between the Great Lakes and the Mississippi region — to the point where it now sees the convergence of over 500 freight trains a day, as well as thousands of trucks and a vibrant air cargo industry. Chicago's residential housing market has been putting increasing pressure on many of the city's prime industrial sites. especially those located near downtown. Many sites previously devoted to transportation and industry are now being converted into residential lofts and condominiums — leading to tension between uses and diminishing the city's manufacturing employment base. These factors led to two different actions by two different groups: The City of Chicago created an Industrial Corridor Program in the early 1990s to protect and guide industrial land use development along specific corridors. Part of this included the creation of 'Planned Manufacturing Districts (PMD).' The latter is a special zoning designation for a defined geographic area that limits the types of development to industrial activity. as well as other compatible land uses. The Industrial Corridors and the PMD are shown in Figure 2.5. In 2004, Chicago Metropolis 2020 created The Metropolis Freight Plan: Delivering the Goods in 2004. Chicago Metropolis 2020, since renamed Metropolis Strategies, is not the region's MPO. rather it is an organization composed of civic and business leaders, collaborating in an effort to secure the regions economic competitiveness. (-Metropolis Strategies-) Starting with the Industrial Corridor Program activities. this plan goes further to suggest a series of steps that Chicago Metropolis 2020 believes are needed to prevent future freight gridlock and to secure the economic benefits of growing freight traffic. Figure 2.5 Chicago's Designated Industrial Corridors and Planned Manufacturing Districts tfrt ,,- nosyMSS mom I ....tra..w• S City of Chicago Industrial Corridors if II Ltd iieranrq -SSe *ono, P.• .. liphimisrs T 3,x-3 C r, to Me Source: City of Chicago. Approach and Resolution Gar p The City of Chicago established Planned Manufacturing District (PMD) zones in 1991 to preserve the city's industrial economy. The zones protect industry from encroachment of incompatible land uses by disallowing residential and other sensitive uses within the PMD zones. The City established 'buffer" subzones near the edges of some of the PMD zones that allow for a variety of commercial and institutional uses to smooth the transition between industrial and sensitive land uses. Chicago's zoning code also includes performance criteria specific to the conditions within each PMD zone that limit the levels of noise, vibration, smoke and particulate matter. toxic matter, noxious odorous matter, fire and explosive hazards. and glare or heat emitted from properties within the zones. (Zoning Ordinance. City of Chicago.) The City of Chicago's Industrial Corridor Program is designed to support Chicago's industrial environment by bringing company and community interests together to plan and implement improvements in dedicated industrial areas. Corridors are identified by a series of characteristics, including their accessibility to goods dependent industries and transit, the existence of compatible uses within the corridor. By mid -2004, the City of Chicago had delineated 24 industrial corridors. and 35 were designated by 2011. The industrial corridors program has helped to organize and -legitimize" the industrial clusters throughout the City as neighborhoods or districts. The corridors have served as mechanisms through which appropriate redevelopment and improvement programs have been implemented. (Source.) In 2004, this concept was expanded upon by Chicago Metropolis 2020, which completed the Metropolis Freight Plan: Delivering the Goods. This report began with a close study of the Industrial Corridor and Planned Manufacturing District program. It then went further, to complete an in-depth interview/discussion period. held with a wide range of industry professionals involved in freight. logistics managers. drayage carriers. commercial real estate developers. academics, transportation advocacy groups, county planning departments, municipal government. and law enforcement. Finally. it included a truck modeling effort, including different scenarios of truck -only infrastructure, including a truck bypass of the downtown core. Outcomes from this effort include the identification of a need for more intermodal facilities in the region, as well as the establishment of local truck routes to connect freight -generating facilities to the main freeway facilities efficiently to reduce VMT and associated impacts. It also called for improved coordination between land use authorities and transportation agencies throughout the metropolitan region. Critical Success Factors https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 10/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations Two key lessons emerge from these two actions: • Preservation and maintenance of manufacturing and industrial land uses in urban areas. Both actions began with the assumption that it is critically important for cities to maintain a mix of land uses in order to support a full range of employment opportunities for residents. It also is vital that manufacturing and industrial land uses be maintained in their current locations in dense urban areas so that the jobs they provide can be reached by public transit systems and so that their freight transportation needs can be met on existing facilities. • Zoning as a tool. The City of Chicago used several tools at its disposal, in this case zoning and land use planning. to maintain the viability of its manufacturing sector and attract new industrial development. By designating 35 industrial corridors. and 15 Planned Manufacturing Districts this land is preserved in a manner that means it will not be encroached upon by residential or commercial land uses. In all, these two efforts are an example of incremental freight and land use integration. They offer: 1) key lessons to any growing urban region. in particular those experiencing residential redevelopment pressures on industrial land, 2) guidelines by which to retain goods movement industries within the urban center, instead of pressuring them to relocate towards the urban fringe, and 3) a compelling argument for cities to understand the hidden costs of these changes. both in terms of job loss and new infrastructure needs. Case Study: Atlanta Regional Freight Mobility Plan Issue Background According to the Atlanta Regional Freight Mobility Plan. the population of the Atlanta region is expected to reach almost seven million people by 2030. The region is one of the fastest growing metropolitan areas in the nation. This growth has and will continue to put development pressure on areas with existing infrastructure. Key freight corridors with access to the interstate and major arterials also are becoming prime space for high -density office and residential or mixed -use developments. As a result. the incidence of adjacent but incompatible land uses is growing (e.g., residential subdivisions bordering warehouse facilities). As property values increase within the urban core. distribution and logistics firms locate facilities at more remote sites at the metropolitan fringe, a phenomenon that has come to be known as -freight sprawl." Approach and Resolution The Atlanta Regional Commission (ARC) identified the connection of land use and transportation as a key element of developing the ARC Regional Freight Mobility Plan. The Plan is intended to provide guidance for accommodating freight facilities and reduce the sprawl of freight activities (illustrated in Figure 2.6) by developing goods and trade -related distribution facilities within existing transportation corridors and zones. This can also help ensure a balance between the movement of people and the movement of goods across key corridors in the region. The goals of integrated freight -land use planning are to: • Preserve the region's quality of life by seeking -peaceful coexistence- of freight and non -freight land uses: • Preserve and enhance efficient and safe access and mobility for freight transportation purposes: and • Support smart transportation planning and projects. (Atlanta Regional Commission, Atlanta Regional Freight Mobility Plan. February 2008.) The ARC study examined planning documents completed by various agencies in the region. interviewed stakeholders, and conducted a review of literature produced in other regions to identify freight and land use issues and strategies that are in use. or could be used. to mitigate conflicts. Figure 2.6 Geographic Distribution of Warehousing/ Distribution Centers in the Atlanta Region wQ«1e C/f wr'i•I QML) `•••1•• • • ; f4C • a1 1 •j:, • reel . 2 S t • I.01 • 1•k• • 1101 - t •t• eed Imo. 0•a •N./•C. t,10, -21.E 2101 •1!l• 1.101 . • 4) bdimarisl Ornibrie • 0•t00 • to • 2001.7.i•- • $14t•aua 4:D s• 1� <O ••. n, E o cU o•a. U• o n = N • • s • • 4a • • • • • •, • • • v J Of 5 • ;MT*** V • • 5 • • - • • • -4 7. • • F •UM• • • • • • • C lwt C-" Dort • • • 4•130 • • uay on • Hier • • • • • LIPS • yr • m • • Bun • • • t• • \ta4or '.1tx•.• • Bait** Ranks Source: Atlanta Regional Freight Mobility Plan, Atlanta Regional Commission. Critical Success Factors The Freight Mobility Plan discovered the following issues and opportunities: • Recognizing corridor -level impacts of freight. The study found that corridor -level impacts of freight -related development is fairly minimal. and that the focus of freight planning activities tends to rest in resolving local traffic concerns and accommodating future traffic volumes rather than management of mobility and access. Many planning documents and processes do not fully understand logistics and supply chain systems and the needs of different freight system users. and they apply one -size -fits -all solutions to freight issues that may not address unique activities or impacts, and may result in the potential for poorly coordinated land use planning. As the region grows, so too will the need for freight infrastructure to support the population. Current trends indicate that freight facilities will locate in areas with relatively inexpensive land capable of accommodating facilities with large footprints, and with access to high-speed/high-capacity transportation networks. A proactive approach is needed to plan to accommodate the needs of the industry. to keep freight mobile and the population mobile. https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 11/12 5/8/2020 FHWA Freight and Land Use Handbook: Section 2.0 - FHWA Freight Management and Operations • Recognizing freight's contribution to a region's economy. The plan recognizes that freight -supportive land use planning is critical to sustaining the Atlanta Region's economic vitality, mobility and quality of life in the future. The plan advised ARC and its planning partners to evaluate in future Metropolitan Transportation Plans (MTP) and Regional Development Plan (RDP) updates and pursue the following objectives: o Preserve freight mobility as the region continues to develop: o Coordinate freight and non -freight land uses and mobility needs: o Ensure adequate segregation and protection of different land uses: and o Build goods movement and logistics needs into land development and site design. (Atlanta Regional Commission. Atlanta Regional Freight Mobility Plan, February 2008.) Case Study: City of Seattle Urban Mobility Plan Issue Background Seattles Urban Mobility Plan (UMP) was undertaken in order to chart a course for the City as it undergoes rapid population and employment growth in the coming decades. The goal of the plan was to ensure that Seattle's Center City would continue to grow in size. economic vitality. and accessibility through improving the efficiency of infrastructure, while also making it more inviting, and accommodating to users. The Plan specifically recognizes the importance of goods movement to support industry, facilitate port activities, and attract businesses. Approach and Resolution The UMP includes a section detailing best practices in freight movement. which identifies practices in use or under consideration by other cities to keep freight moving in congested multiuse areas. Many of the examples profiled in this review are European cities, since they often deal with tighter geometric requirements that U.S. cities and have been considering this issue for many years. Recent developments include: (Briefing Book. Seattle Urban Mobility Plan, January 2008.) • Low emission zones — where vehicles can only enter a designated Low Emission Zone (LEZ) if they meeting specific emissions criteria set by the local government (currently in use in Sweden. Amsterdam, and London). • Combined -use lanes — where lanes are designated for different uses throughout the day — for example certain time periods allow through -traffic. truck stopping, or parking (currently is being used on Barcelona's Balms Street arterial). • Preferential zoning or property tax relief for properties used in urban goods movement — which offers incentive to incorporate goods movement into new development plans. exists in several Canadian cities. • Unattended delivery systems — that allow deliveries to be made when offices are closed or recipients are not at home, so trucks do not need to return goods to the depot for later delivery. This may be in the form of a drop box. or a convenience store. • Retail delivery stations — micro -warehouses are used to receive large truckloads of goods. The goods are later transported to individual businesses by pallet truck, small carts. etc. This reduces the amount of large truck trips in the urban core (currently in use in Brussels). In addition. the UMP reviewed a wide variety of other freight and land use coordination methods from around the U.S.. including restricted delivery hours. incentives for off- peak deliveries. and combined use or freight -exclusive lanes. The UMP also identified a set of policies and practices that Seattle could use to best manage urban freight operations in a manner that both optimizes street operations and ensures safety. These proposed policies and practices are summarized in Table 2.3. (Briefing Book. Seattle Urban Mobility Plan, January 2008.) Table 2.3 City of Seattle Policies to Manage Urban Freight Operations Key Issues Addressed Reserve some on -street parking for commercial vehicles. Reserve some on -street parking for commercial vehicles. Require permits for all over -dimension trucks. Require new developments to provide off-street truck loading areas. Retain alleys for truck deliveries and garbage/recycling collection. Provide signage for truck drivers to identify appropriate routes and note prohibitions. Provide businesses with information regarding route closures and detours early enough for them to adjust routes or delivery schedules if required. Provide real-time information about incidents that will disrupt traffic operations. Critical Success Factors • Establish space for freight. By requiring new developments to provide off-street truck loading areas, and reserving some on -street parking for commercial vehicles. Seattle is implementing a management policy that will offer commercial vehicles a "place to work- while loading and unloading. This limits illegal and unsafe parking that may have occurred otherwise. • Share travel information. By providing appropriate signage for truck drivers, and making information on route closures and incidents available to the freight community. businesses can take appropriate measures to "plan accordingly" and avoid undesirable routes and congested areas. When incidents occur. trucks and passenger vehicles may divert to other routes, but not all routes are suitable alternatives for trucks. By having truck route and detour information available. trucks can take appropriate actions to avoid sensitive areas. You will need the Adobe Reader to view the PDFs on this page. previous I next e FHWA https://ops.fhwa.dot.gov/publications/fhwahop12006/sec_2.htm 12/12 A..COM Memorandum To CC AECOM 4225 Executive Square Suite 1600 La Jolla, CA 92037 www.aecom.com James Sharn, Martin Marietta Materials 858-812-9292 tel 858-812-9293 fax Thomas Damiana and Anthony Galligan, AECOM Page 1 Subject From Proposed Highway 34 Site - near Kelim Colorado — Noise Analysis Paul Burge, INCE Bd. Cert., AECOM Date March 26, 2015 1.0 Introduction and Background 1.1 Project Overview Martin Marietta Materials is evaluating potential aggregates sales yard and asphalt/ready-mix concrete production sites along railroads in Weld County that meet specific transportation and production criteria. One of the locations under consideration is the "Highway 34" site, located at 27486 Weld County Road 13. one-half mile south of Highway 34 in Weld County. The proposed site is made up of two parcels, totaling 133 acres. The western parcel is currently developed and permitted in Weld County to allow for the operation of a construction business. The eastern parcel is currently agricultural farmland. The general layout of the proposed site is shown in Figure 1. 1.2 Operations Overview The Highway 34 site is proposed to have four main components: a rail unloading facility to bring in raw material. an aggregate sales yard, an asphalt plant and a ready mix concrete plant. The rail loop will branch off the existing Union Pacific Railroad line to allow for the loading and unloading of aggregates. Trains will deliver aggregate from Wyoming approximately two to three times per week. Customers within northern Colorado will receive their materials from this site by truck. Generally, operations are planned to take place during daylight hours. six days a week. However. hours of operation are dictated by customers' project requirements, so at times, activities may need to occur early in the morning or at night. 2.0 Applicable Noise Ordnances Applicable noise ordinances exist for both the State of Colorado and Weld County. as summarized below. 2.1 State of Colorado The State of Colorado provides maximum permissible noise levels under section 25-12-103 of the State Code. as reproduced below. A. Table 1. Colorado State, Maximum Allowable Noise Levels Zone Maximum Sound Level (dBA) 7amto7pm 7pmto7am Residential 55 50 60 55 Commercial Light Industrial . 70 65 Industrial 80 75 In reference to this table. subsection 25-12-103 (1) of the Code states: Sound levels of noise radiating from a property line at a distance of 25 feet or more therefrom in excess of the dBA established for the following time periods and Zones shall contribute prima facie evidence that such noise is a public nuisance. It is also stated in subsection 25-12-103 (2) that, in the hours between 7:00 am and 7:00 pm, the noise levels permitted in subsection (1) of this section may be increased by 10 dBA for a period of not to exceed 15 minutes in any one hour period. 2.2 Weld County The maximum allowable noise levels for various land uses for Weld County noise regulations. as specified under Chapter 14. Article IX. Section 14-9-40. are presented as follows: Table 2. Weld County, Maximum Allowable Noise Levels Land Use Maximum 7:00 Noise am — 9:00 Level (dB(A)) pm Maximum Noise Level (dB(A)) 9:00 pm — 7:00 am Residential Commercial Property or Area 55 50 Industrial Area Activities or Construction 80 75 Non -Specified Areas 55 50 For residential and industrial land uses the allowable levels are the same for State and County regulations. Weld County has verified that the presented maximum allowable noise levels apply at the property line of the noise producing property. For the Highway 34 project the property would be considered "industrial," so the applicable maximum noise levels would be 80 dBA during the day and 75 dBA at night as predicted or measured at any point of the property line adjacent to another developed land use. 3.0 Assumed Nearby Noise -Sensitive Receptors, Noise Sources, and Plant Operations 3.1 Nearby Noise Receptors The closest nearby noise -sensitive receptors in each general direction from the proposed plant are presented in Table 3, below and are shown on Figure 1. 2'Page AECOM Table 3 Closest Noise -Sensitive Receptors Receptor ID Approx Address Land Use Direction, distance from nearest sound source R1A 27627 Hopi Trail Residential Development 353 ft NE from rail loop R1 B 27687 Hopi Trail Residential Development 472 ft N from rail loop R2 6577 County Rd 56 Isolated Residence 316 ft SE from rail loop R3 6190 County Rd 56 Isolated Residence 778 ft S from rail loop R4A 27236 N Co Line Rd Isolated Residence 558 ft SW from internal truck route R4B —27192 N Co Line Rd Isolated Residence 621 ft SE from rail loop ' R5 '-27846 N Co Line Rd Isolated Residence 161 ft N from internal truck route R6 —27864 N Co Line Rd Isolated Residence 120 ft E from haul route R7 —6577 County Rd 56 To be acquired by project Other noise sensitive receptors exist in the area, but those listed in Table 3 represent the closest in each direction, so it is reasonably assumed that project -related sound levels at other, more distant locations would be lower than those presented in this report Corresponding property line analysis locations have been established for each of the identified receptor locations, as indicated in Table 4, and as shown in Figure 1 Table 4 Closest Noise -Sensitive Receptors Property Line ID Corresponding Receiver ID Direction and distance from nearest sound source PL1A R1A 165 ft NE from rail loop PL1 B R1 B 57 ft N from rail loop PL2 R2 249 ft SE from rail loop PL3 R3 60 ft S from rail loop PL4A R4A 388 ft SW from rail loop PL4B R4B 82 ft SE from rail loop PL5 R5 59 ft N from internal truck route 3 2 Project -related Noise Sources The assumed project related noise sources are presented in Table 5 along with reference sound level/distance and reference source Table 5 Assumed Project Noise Sources without noise controls Project Noise Source Map ID Reference Level/Distance Reference Source Asphalt Plant A & C 82 dBA @ 175 ft Greely Measurements 2/20/15 Ready -mix Plant B 75 dBA @ 100 ft Livingston EIR Truck Movements E 73 dBA @ 60 ft Greely Measurements 3/5/15 Truck Washing D 78 dBA @ 60 ft Greely Measurements 3/5/15 Rail Car movements G 48 dBA @ 50 ft FTA Spreadsheet Rail Loco Idling G 73 dBA @ 50 ft FTA Table 6-7 Rail Hopper/unload H 65 dBA @ 50 ft Estimate from TX plant Conveyer transfer tower I 63 dBA @ 100 ft Greely Measurements 2/20/15 3IPage AECOM The source levels for the above sound sources were derived from a number of reference,or measurement sources Sound levels for the asphalt plant, truck movements, truck washing operations, and material conveyor system were all conducted at the Martin Marietta asphalt plant in Greely, CO for equipment and processes similar to those expected to be installed at the new plant Source levels for the Ready -mix plant were referenced from the Environmental Impact Report (EIR) for Livingston Concrete Batch Plant, in Placer County, CO (2008) Source levels for idling locomotives and internal train movement were references from the Federal Transit Administration's manual for Noise and Vibration Assessment, 2006 Estimates for the Hopper unload station were estimated from interviews with plant personnel at other MMI plants with similar equipment 3 3 Plant Operations The following assumptions were used in estimating noise generated by the proposed project Although all the sources listed in section 3 2 are not expected to normally be operating at the same time, there is no way reasonably to estimate with any level of certainty exactly which sources will be operating when Therefore, for the purpose of calculating noise levels, it was conservatively assumed that all identified noise sources would be operating continuously and simultaneously during daytime periods The ready -mix and asphalt plants would not routinely operate during nighttime hours, but may be available on -demand for ready -mix deliveries Therefore, it was conservatively assumed that during nighttime hours the asphalt plant, ready -mix plant, truck wash station, and internal truck movement may all be operational 4 0 Proposed Noise Mitigation Elements The proposed noise control elements recommended to be constructed as part of the project include the following (and as conceptually indicated in Figure 1) • Berms to break line -of -sight between sound sources and receptors R1A, R1 B and R2 • Noise walls to break line -of -sight between sound sources and receptors R3, R4A, R4B, and R5 • Acoustical enclosures/silencers to provide at least 20 dBA of noise reduction at asphalt plant • Acoustical enclosures/silencers to provide at least 10 dBA of noise reduction at ready -mix plant • Noise wall to provide at least 15 dB noise reduction for truck noise at R5 Detailed locations and heights for noise walls and berms and details and specifications for noise control elements for the asphalt and ready -mix plants would be defined during final design, but may include such features as stack and intake silencers, burner enclosures, conveyor and chute enclosures and lagging, acoustically absorptive enclosure pens and administrative/operational controls 5 0 Predicted Operational Noise Levels Noise levels were conservatively calculated assuming spherical geometric spreading from the source without excess ground attenuation or atmospheric absorption (an approximate reduction of 6 dBA per distance doubling from the source), based upon distances from the center of each point source (asphalt plant, ready -mix plant, truck wash), or closest point of a line source (rail loop, internal truck route) to the property line or residential receiver location as shown in inset tables in Figure 1 Predicted sound levels for property line and residential receptor locations are presented in Tables 6A and 6B, respectively 4IPage AECOM Table 6A Predicted Project Noise Levels at Property Line Locations Property Line Location With No Mitigation (dBA) With Mitigation (dBA) Notes Max allowable 80 dBA day, 75 dBA night Daytime level Nighttime level Daytime level Nighttime level PL1A 65 61 58 48 All meet maximum allowable "Industrial" property line limit, with or without mitigation, day or night PL1 B 72 63 72 51 PL2 64 62 55 47 PL3 73 68 67 52 PL4A 67 66 55 53 PL4B 73 71 64 55 PL5 74 74 68 68 Table 6B Predicted Project Noise Levels at Receiver Locations Property Line Location With No Mitigation (dBA) With Mitigation (dBA) Notes Max Allowable 55 dBA day 50 dBA night Daytime level Nighttime level Daytime level Nighttime level R1A 62 61 53 47 All meet maximum allowable "Residential" limit for daytime operations Occasional nighttime operations may exceed limit at R4A, R4B and R5 R1 B 62 61 55 48 R2 63 62 54 47 R3 64 64 53 50 R4A 65 65 55 55 R4B 66 66 53 52 R5 67 67 52 51 As shown in Table 6A the maximum allowable "Industrial" noise level of 80 dBA during the day and 75 dBA at night is met at all analyzed property line points with or without proposed noise mitigation elements, day or night Further, the secondary, "residential" limit, as shown in Table 6B, is also met for the 55 dBA daytime limit at all neighboring residential locations with proposed mitigation Occasional nighttime operations would meet the nighttime allowable limit at all locations except R4A, R4B and R5 which may be exceeded occasionally due to internal truck movements 6 0 Haul Route Noise , Noise levels could increase at residential land uses along North County Line Road between the proposed plant and US 34 as a result of increased traffic from plant operations To determine traffic noise levels for homes along this haul route the FHWA Traffic Noise Model (TNM) was used to predict noise levels for existing traffic conditions and traffic conditions for the full build out of the plant (2036) Receiver location R6 (as shown on Figure 1) was used to represent the limited number of residences along the haul route The predictions where based upon traffic data provided in the Traffic Impact Study, Martin Marietta Materials, Highway 34 Site The TMN analysis calculated peak hour noise levels at Receiver R6 as 57 dBA for the current conditions and 64 dBA for future (2026 conditions) This does represent a potentially noticeable increase but it is less than the 66 dBA level or 10 dBA increase that is typically considered a traffic noise impact by FHWA and Colorado Department of Transportation 5IPage AECOM 7 0 Conclusions and Recommendations Based upon this analysis it is concluded that the proposed Highway 34 proposed operations operations would not exceed the maximum allowable "Industrial" noise limits during the day or at night In addition, with recommended noise control elements as listed in Section 4 0, it is predicted that the plant operations would not exceed the "residential" noise limits at nearby residences for daytime operations, but may exceed those limits for periods during on -demand nighttime operations at some receiver locations 6IPage OVERVIEW MAP Albany County Larimer County Laramie County Project Site Boulder County Cheyenne___A• - Weld County r i r Denver - Morgan. "County Adams County Arapahoe County Receptor R1A RIB R2 R3 R4A R48 RS PL1A PL1B PL2 PL3 PL4B PL4A LEGEND Noise Sensitive Receptor Property Line Noise Source (A -D, H, I) Nearest Track Location (Noise Source G) Improvements Conveyor Truck Route (Noise Source E) Wall - Noise Abatement Railway Berm - Noise Abatement County Boundary Commanche.C Source - Receptor Distances feet Asphault Ready Mix alMbirk Truck Rail Loop Hopper 11 Plant (A) Plant (B) Load (C ) ash D) Route (E ) (G) Unload (H) Tr 2250 2121 1859 1421 1415 1817 1564 2225 2072 1353 2317 2205 1804 1319 1463 1705 1537 1974 1944 1573 1264 1003 1305 1248 558 353 472 316 778 650 2343 2555 510 1242 2759 1167 1270 1592 2178 2334 2260 2437 Asphault Ready Mix Asphault Truck Truck Truck Rail Loop Hopper Conveyot Plant (A) Plant (B) Load (C ) Wash (D) Route (E ) (G) Unload (H) Transfer( 2078 1776 1801 894 665 1175 1670 1282 2161 1486 851 1093 SOURCES Aerial Imagery (Microsoft 2011). Roads Railways. Boundaries (Esn 20091. Receptors (URS 2015) Protect Features ( Tetra Tech 20151 2142 1854 1749 803 702 1230 250 0 250 500 Feet SCALE: 1" = 500' (1:6,000) SCALE CORRECT WHEN PRINTED AT 11X17 1543 1204 1908 1310 984 1311 1128 719 1242 640 399 483 59 165 57 249 60 82 388 71c 2158 2140 459 705 1995 2526 MMMI ASPHAULT PLANT NOISE SENSITIVE RECEPTORS WELD COUNTY, COLORADO 980 855 1525 1461 1723 2072 CREATED BY: DA DATE: 3/26/2015 FIG. NO PM: PB PROJ. NO: 27655157.01000 1 ID i FINDINGS AND RESOLUTION CONCERNING INDIANHEAD SUBDIVISION PLAT The petition of Interladco, Inc., c/o Warren Strobbe, requesting approval, execution and recordation of a subdivision plat of the Northeast Quarter (NE -1) of Section Eighteen (18), Township Five (5) North, Range Sixty-seven (67) West of the Sixth P.M., Weld County, Colorado, designated as "Indianhead Subdivision" hereinafter referred to as the "plat", came on for hearing on October 30, 1972, and the Board of County Commissioners of the County of Weld, State of Colorado, having heard the testimony and evidence adduced at said hearing and having considered the testimony, evidence and recommendations of the Weld County Planning Commission filed with said Board, and having carefully weighed the same, now makes the following findings: 1. The evidence and testimony disclose that the applicant failed to sustain the burden of proof as to the need for a subdivision of this nature and size in a rural and remote area of the county; 2. That said plat encompasses land located with an area zoned "A" Agricutural and favorable consideration would have an undue adverse effect on existing agricultural uses adjoining and adjacent to the proposed subdivision; 3. The evidence and testimony show that the inhabitants of the immediate vicinity of the area proposed to be subdivided are unanimously opposed to the subdivision; 4. The evidence and testimony show that said subdivision would create an undue burden on existing fire and police protection services, and additionally, would create an undue burden on the existing facilities of School District Re -5J, 5. The evidence and testimony, including personal inspection of the subdivision site, disclose that a subdivision of this nature in said rural and remote area of the county would only tend to encourage urban 720671 -ya •I,44z le • sprawl and uncontrolled expansion within the county; 6. The evidence and testimony disclose that the remoteness and isolation of this subdivision from existing residential and commercial development with their conveniences and amenities, and said location being outside of the normal growth pattern for this type of residential development make it reasonably forseeable that the impact of this urban use will be detrimental to the development of agriculture in Weld County, 7. The evidence and investigation show that there is a need for an environmental impact study and development of a comprehensive plan for the greater Loveland, Greeley and Windsor areas, which would include the area sought to be subdivided, and therefore, approval of the plat for said subdivision at this time would be premature and not in the interest of good planning FURTHER, The Board makes the following additional findings 8 Said final plat is in violation of the Weld County Subdivision Regulations, as revised April 21, 1971, in the following respects - (a) Section 5 1(3) requiring (good and sufficient dedication of all streets . . , as shown on the plat to the public)" (b) Section 3. 7 - requiring reservation of "Suitable are for school, park, through street or similar public purposes, and where . . . . not dedicated on the plat . . . arrange- ments for said transfer of title shall be agreed upon prior to approval of the final plat" (c) Section 3 6 (1) prohibiting platting lots in areas subject to flooding (Block 3, Lots 20, 21 and 22). 9. Non-conformance of final plat with preliminary plat which shows minimum 150' right of way for U S Highway No 34 10. No provision for maintenance of proposed sewage treatment facility. 11. No provision for adequate fencing and maintenance along Greeley Loveland Ditch and Farmer's Ditch -2- ® • ATTEST • Clerk of thBoard ."c'i� D,pputy County Clerk .APPROVED AS FORM County Attorney �✓ 12, That each of the preceding findings in and of themselves and independent of each other constitutes a separate and individual ground for denial of the plat. RESOLUTION WHEREAS, the Board of County Commissioners of the County of Weld, State of Colorado, has heard the petition of Interladco, Inc., c/o Warren Strobbe, requesting approval., execution and recordation of a subdivision plat of a parcel of land as hereinabove recited and made a part hereof by reference, and WHEREAS, said Board has made its findings on the evidence and testimony submitted to it, including personal inspection of subdivision site, which findings precede this resolution and by reference are incor- porated herein and made a part hereof, and WHEREAS, the said Board has carefully considered the final plat, evidence and testimony and the recommendations of the Weld County Planning Commission and has given the same such weight as it in its discretion deems proper, and is now fully advised in the premises, NOW, THEREFORE, BE IT RESOLVED, that the petition of Interladco, Inc., c/o Warren Strobbe, requesting approval, execution and recordation of a subdivision plat of a parcel of land indicated above be, and it hereby is denied on each of the grounds set forth in the Board's findings therein Made and entered this 90th day of December, A.D , 1972 BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO )t „, I ((‘,/„L, vcr� re,A54.i1 e y•I„ R H4..m..,J -3- 758 za JAN 3 0 19?6 Recorded at .._n_..._.._�.._.. o'clock _ __.M.__.._. _ ._ RC No, 168Q23a S. Lee Shehee, Jr., Recorder oC RESOLUTION WHEREAS, by resolution dated December 20, 1972, the Board of County Commissioners, Weld County, Colorado, denied the request of Interladco, Inc., for a final plat of Indianhead Subdivision, more particularly described as follows: Considering the North line of the Northeast Quarter of Section 18, Township 5 North, Range 67 West if the 6th Principal Meridian in the County of Weld, State of Colorado, as bearing South 88°38'31" West and with all bearings contained herein relative thereto. Beginning at the Northeast Corner of said Section 18; thence along the North line of the Northeast Quarter of said Section 18 South 88°38'31" West 2669.54 feet to the Northwest Corner of the Northeast Quarter of said Section 18; thence along the West line of the Northeast Quarter of said Section 18 South 1°12'26" East 2648.06 feet to the Southwest Corner of the Northeast Quarter of said Section 18; thence along the South line of the Northeast Quarter of said Section 18 North 88°45'56" East 2656.07 feet to the Southeast Corner of the Northeast Quarter of said Section 18; thence along the East line of the Northeast Quarter of said Section 18 North 0°55'00" West 1942.69 feet to the Southeast Corner of that certain parcel of land described under Reception No. 1438250 in Book 516 records of said County; thence along the Southerly, Westerly and Northerly lines of said parcel the following courses and distances: South 88°14'00" West 660.00 feet; thence North 0°55'00" West 660.00 feet; thence North 88°14'00" East 660.00 feet to a point on the East line of the Northeast Quarter of said Section 18 from which the Northeast Corner of the Northeast Quarter of said Section 18 bears North 0°55'00" West 51.17 feet; thence along East line North 0°55'00" West 51.17 feet to the point of begin- ning. Containing 152.051 Acres more or less. and, WHEREAS, an action was brought in District Court in and for the County of Weld, State of Colorado, to approve said final plat; and it was the judgement of said court that the final plat should be approved, and WHEREAS, a court order has been issued to the Board thereby ordering the Chairman to sign said plat. NOW, THEREFORE, BE IT RESOLVED, by the Board of County Commissioners, Weld County, Colorado, that pursuant to the Court order dated April 22, 1974, issued by Judge Donald A. Carpenter, said judgement affirmed by the Court of Appeals, State of Colorado, dated April 22, 1975, Glenn K. Billings, Chairman of the Board of County Commissioners, Weld County, Colorado, be, and he hereby is authorized to sign said plat; and that said signature be attested by the County Clerk and Recorder in and for said County. ,o0K 758 1.660235 The above and foregoing resolution was, on motion duly made and seconded, adopted by the following vote this 19th day of January, 1976. PITWOirZ-*S.‘-40<° - /,+ ©t$T*Y, CLERK AND RECORDER 11D CLERKt TO THE BO e•; D e . ;�f,�Tlepiity County Cletk rolov A'•'s D = TO F ep /tip( ial Le ✓ 1� al Counsel THE BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO / 2 Norman Carlson, Abstained June K. Steinmark, Abstained rrnnn COMPANIES M P A N I E S C O M P A N I E S 27154 County Road 13 /Johnstown, CO 80534 office 970.669.1463 / fax 970.669.1964 May 18, 2020 Weld County Commissioners Attn: Angela Snyder Re: Rock and Rail Application #COZ20-0004 Response to the Farmers Ditch Referral Dear Commissioners: I am the land owner of the Rock and Rail property and an applicant for the zoning change. I'm also a shareholder (owner) in the mutually owned Reorganized Farmers' Ditch Company. The referral response prepared by John Cummings on behalf of the Farmers' Ditch contains inconsistencies and omissions that are relevant to this matter should the Commission consider any of his recommendations seriously. As a mutually owned ditch company, the Farmers' Ditch is responsible for diverting and delivering water to our shareholders through a system of ditches and head gates in accordance with the applicable water court decrees. It is not strictly an agricultural ditch company as the referral states, because a large portion of the water that is delivered through the ditch is used in Johnstown's "2534" mixed use development to irrigate urban landscaping. The Farmers' Ditch Company does not have a "Comprehensive Plan" related to land use as Mr. Cummings response seems to indicate, and it is not responsible to its shareholders for making recommendations regarding zoning or compatibility of land use. Mr. Cummings claims that the proposed zoning change will cause adverse water quality issues for the Farmers' Ditch that will require a pipeline from the Rock and Rail property to the Big Thompson River. This he says, is because the stormwater from the Rock and Rail property will supposedly enter into the irrigation laterals carrying with it certain contaminants from "asphalt, oil, gas storage", or even "refineries and junkyards". First of all, it's very misleading of Mr. Cummings to infer that stormwater from this site is either contaminated or ends up in a Farmers' Ditch lateral. Runoff leaves the site at the same point it historically has and at the same rate, but nowhere near a Farmers' lateral, and it is continually monitored for contaminants. It's important, however, to point out that several developed properties along the ditch actually do discharge stormwater directly into the ditch and at least two of them are adjacent to, and on either side of the Rock and Rail facility. To the north, Indianhead West HOA collects all of its stormwater from their asphalt streets and driveways and run off from fertilizers, insecticides and herbicides in a holding pond that is situated along the northeast boundary of the Rock and Rail property. Any captured stormwater in the pond that doesn't seep into the groundwater under my land is pumped directly into the Farmers' main concrete ditch just a few yards upstream of my head gate where my water is diverted, along with Laterals #2, 3 & 4, (Cummings map) where several others divert their water The stormwater from the Indianhead West HOA streets and driveways potentially carry asphalt, oil and other contaminant residue into the ditch and then onto the Rock and Rail property through my head gate This discharge into the Farmers' Ditch is pursuant to an Agreement between the Reorganized Farmers' Ditch Company and the Indianhead West HOA Mr Cummings as Vice President knew, or should have known this fact when he wrote his referral response The property located just south of the Rock and Rail site at 27292 WCR 13, was recently developed into a commercial property under a county USR In order to develop that property, the owner had to seek permission from the county and the affected farmer (John Cummings) to discharge his stormwater directly into the Farmers' ditch lateral that runs along the east side of WCR13 (Lateral #1, Cummings map) which also serves as a roadway drainage ditch This ditch delivers water to Mr Cummings property for irrigation of his crops and is also exposed to the same asphalt, oils and other contaminants from WCR 13 and the storage facility that are such a concern for Mr Cummings regarding the Rock and Rail site These two unmonitored discharge points have a much greater potential to carry contaminates directly into the Main Farmers' Concrete Ditch and its four laterals than the highly monitored Rock and Rail site which doesn't discharge into a lateral The stormwater from Indian Head West has been intentionally and continuously allowed to discharge into the Main Farmers' Ditch long before the Rock and Rail facility existed, and the stormwater from 27292 WCR 13 has been allowed to discharge into lateral #1 for several years Yet Mr Cummings states in his referral response, "RFDC has maintained the quality of their water by limiting stormwater runoff into the ditch from residential, commercial and industrial developments " Mr Cummings also fails to disclose that he has just permitted and commenced construction of a large oil and gas drilling site on his own property -just across WCR 13 from the organic farm he wants to protect from an industrial use It is also worth noting that Mr Cummings is one of the litigants in ongoing federal litigation regarding the Rock and Rail Property Reading Mr Cummings contradictory statements and knowing his omissions of other facts might lead one to think he is using this platform to promote his own agenda But whatever his agenda or motives, Mr Cummings' statements are inconsistent with the facts and very misleading His recommendations regarding land use and stormwater are not factual comments regarding water delivery or the operations of the Farmers' Ditch and should not be given serious consideration for the purposes of reviewing this application Resp ctfull /yours,' / /G GaryGerrard From: Dennis Holman To: Angela Snyder Subject: Record Number - COZ20-0004 Date: Thursday, June 4, 2020 10:13:44 AM Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is sate. To: Weld County Planner asnyder@weldgov.com Regarding: Record Number — COZ20-0004 My name is Dennis Holman. I am a retired banker who specialized in residential and commercial construction lending in Weld County for most of my 35 year career. Prior to years of conventional banking I was an asset based lender in the agriculture industry for a number of years. I am a native of Weld County growing up on a dairy farm north east of Greeley near Barnesville and have lived in Greeley since 1968 when I attended the University of Northern Colorado (CSC when I enrolled). I graduated from UNC in 1972 with a Bachelor of Science degree in business management and finance. The front range of Northern Colorado continues to be one of the fastest growing areas of the country. The cost of housing continues to increase. As such, home ownership is not within reach for many people in this area. As a retired construction loan lender, I know that aggregates and aggregate based products are a significant portion of the costs of development, housing and other public and private ventures. and certainly infrastructure all along the Front Range. As a result of depleting aggregate resources in Northern Colorado, aggregates must now be shipped in from out of state. Rail is certainly the most economical and environmentally safe method. In addition, rail literally takes hundreds of trucks off of highways reducing congestion, pollution, and accidents. Rock and Rail is located in the center of the Northern Colorado growth area. It appears to me to be in an ideal location to process aggregate based materials in the same area that it is delivered. It is very strategically located given the existing rail delivery system. This Zoning change will provide maximum efficiencies and protect the driving public from unnecessary truck traffic, further deterioration of infrastructure: and pollution. As a banker for over 30 years, I understand the need to help stabilize the cost of development and housing construction. This facility is well positioned to process aggregate based asphalt and concrete products and at the same time reduce truck traffic and create a more environmentally safe community. I drive by this site on many occasions and the operation appears very clean. quiet, and neighbor friendly with landscaping berms and a low profile view from major highways and high traffic public areas. Growth will continue along the Front Range and opposition to this Zoning change would appear to me to be quite counterproductive. Interladco, Inc. v. Billings Annotate this Case 538 P.2d 496 (1975) EXHIBIT 87 INTERLADCO, INC., a corporation, et al., Plaintiffs -Appellees, v. Glen K. BILLINGS et al., Defendants -Appellants. No. 74-316. Colorado Court of Appeals, Div. I. April 22, 1975. Rehearing Denied June 10, 1975. Hammond & Chilson, John H. Chilson, Loveland, Saunders, Snyder & Ross, P. C., Glenn G. Saunders, Denver, for plaintiffs -appellees. Cooke, Gilles & Schaefer, Ronald Lee Cooke, Denver, Telep & Connell, Samuel S. Telep, Greeley, for defendants -appellants. Not Selected for Official Publication. *497 COYTE, Judge. Plaintiff Interladco, Inc., brought this action against defendants alleging a claim for relief pursuant to C.R.C.P. 106(a)(4), to review a decision of the defendant Board of County Commissioners denying approval of a final subdivision plat of Interladco, Inc., in Weld County, Colorado, and in a second claim for relief asked for damages against defendants in the amount of $85,000. Lennart and Gladys Mellin were joined as parties plaintiff because they had an equitable interest in the property sought to be subdivided. The case was tried to the court on the record certified from the planning commission and Board of County Commissioners and on oral testimony. At the conclusion of the trial, the court entered judgment ordering the county commissioners to approve the plat and reserved the question of damages for future consideration. Defendants appeal contending that the court erred in reserving the question of damages, in allowing oral testimony at the trial, in reviewing the record of the Weld County Planning Commission, in finding that the Weld County Planning Commission participated in a plan to evade the provisions of the Weld County zoning resolutions, and in finding that the Board of County Commissioners abused its discretion in denying plaintiffs' final plat. We affirm the judgment. We do not address ourselves to the propriety of joining a claim for damages in this proceeding with the C.R.C.P. 106 proceedings. At trial, defendants' attorney had contended before the trial court that damages have no part in a C.R.C.P. 106 proceeding and plaintiffs' attorney had requested that the damages issue be separated from the rest of the case. No evidence on the question of damages was introduced. The trial court, on supporting evidence, found that the parties had agreed to proceed to trial on the issues raised on the first claim, and it then directed the entry of a final judgment with respect to the first claim only, and stated that no action was taken at that time on the second claim because "there is no just reason for delay in entering judgment on the first claim." This was sufficient compliance with C.R. C.P. 54(b) so that there is a final judgment on the first claim which can be appealed, but any issues relative to the damages claim are not within the scope of that judgment. Because of the nature of plaintiffs' first claim in requesting a review of the actions of the Weld County Planning Commission and the Board of County Commissioners and the individual members of the board in their refusal to approve the final plat of plaintiffs' land, the trial court allowed plaintiffs to present oral testimony to the court in addition to the record of proceedings made before the planning commission and Board of County Commissioners. See Morris v. Board of County Commissioners, 150 Colo. 33, 370 P.2d 438, and Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223. Defendants contend that the court erred in allowing this oral testimony, particularly when the issue of damages had been separated from the C.R.C.P. 106 proceedings. If it were error, it was harmless error, since the record certified from the planning commission and the Board of County Commissioners contained sufficient evidence to show that the Board of County Commissioners abused its discretion and the trial court specifically found that its findings were based on this record. The critical findings of the trial court were that: "The record of proceedings before the Weld County Planning Commission and the Weld County Board of County Commissioners show an unmistakable and deliberate plan among the members of both boards to evade the provisions of the zoning regulations and prevent Plaintiffs from using their property for single-family residences for which the property was zoned. These records also show that the Defendants endeavored to arrange their rulings and proceedings in such a way as to present an endless succession *498 of administrative procedures so that Plaintiffs could not receive redress at the hands of the judicial branch of the government of Colorado by virtue of the legal technicality of never having been able to exhaust their administrative remedies, despite the fact that the Plaintiffs met all legal requirements imposed upon them." "It is apparent from the record that the Board of County Commissioners abandoned the proper issues and denied approval on considerations totally outside the scope of proper inquiry." Although under C.R.C.P. 106, the role of review of the district court "shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion," Bauer v. Wheat Ridge, Colo., 513 P.2d 203, we find no error in the findings and judgment entered here. The circumstances evident here fall within the ambit of the principles stated in Western Paving Construction Co. v. Board of County Commissioners, Colo., 506 P.2d 1230. There, in reversing a board of county commissioners' denial of a permit for extraction of sand and gravel, the Supreme Court ruled that: "[W]hen the matter is permitted by right in the zone created and either through an environmental concern or a change of circumstances the use is incompatible with prior usage, the proper procedure is to amend the zoning resolution.... If the use is permitted within the zone, then it is impossible to not be in harmony. It is apparent from the record that the Board abandoned the proper issues and struck the application on considerations totally outside the scope of proper inquiry.... "'Courts are not to be impotent, stand idly by, and allow unrestricted exercise of authority by Boards, not granted by statute or permit the arbitrary and unjustified exercise of discretion."' Similar principles were utilized to produce a like result in Bauer v. City of Wheat Ridge, supra, and see also Green v. Castle Concrete Co., Colo., 509 P.2d 588. Where there is no evidence in the proceedings before the Board of County Commissioners to support its decision, the same is not binding on the trial court or on this court. Martinez v. Industrial Commission, 32 Colo.App. 270, 511 P.2d 921. The record clearly demonstrates that the planning director for Weld County and the membership comprising the planning commission and the Board of County Commissioners did not want a development of single-family residences isolated from other developed urban areas, even though their subdivision regulations had no such restrictions. They met and planned, not only for the purpose of thwarting plaintiffs in their efforts to have their subdivision approved, but also to devise means to defeat plaintiffs' attempt to obtain F.H.A. approval as well as plaintiffs' efforts to meet Weld County's water requirements. We cannot escape the conclusion that the deliberate delays caused by defendants were solely to obstruct, in any manner possible, a final approval of the subdivision. The record also clearly shows that plaintiffs presented a plat for approval which met all the pertinent requirements of the subdivision regulations then in effect, but that the Board of County Commissioners, because of their personal whims, nevertheless refused to approve the plat. Such abuse of discretion will not be tolerated. Judgment affirmed. PIERCE and BERMAN, JJ., concur. From: Bethany Pascoe To: Lauren Light; Lauren Kemper; Bruce Barker; Tom Parko Jr.; Angela Snyder Subject: FW: Rock and Rail Date: Monday, June 8, 2020 7:28:58 AM EXHIBIT 88 **FYI - Added to U Drive. **NOT A COMPLAINT** Original Message From: Sent: Saturday. June 6. 2020 10:55 AM To: Bethany Pascoe <bpascoe, Jweldgov.com> Subject: Rock and Rail Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Bethany, My name is and I'm a resident of Indian Head Subdivision and would like to provide my opinion on the rezoning hearing. I will not attend the public hearing and I'd like to remain anonymous to the neighborhood of writing you for the fear of retaliation by my neighbors. I purchased my home in which I paid asking price at . My wife and I were fully aware of the plant next door and were more than happy to still proceed with the purchase. We were more reluctant do to the stories of the HOA though. In our time here I have been awakened by Hwy 34 during colder times due to the concrete being cold which makes the sound of the tires louder and the emergency helicopters. Neither of which I complain about. Never have we been awakened by the train or the plant. However we were also awakened by the oil wells numerous times as they worked all night. I don't believe the neighborhood complained about that but I'm sure it is because they were going to gain monetarily from this. As I'm a blue collar worker I tend to think they did a great job building the plant and I've seen a lot over the years. I also am a firm believer that if you don't want someone to build something next to you, you should purchase the land yourself To address the dust situation I don't observe any of that as my neighbors are suggesting. Maybe if you lived on top of the berm you'd notice. I also agree with Weld County on zoning around railroads and arterial roadways that commercial property should exist. The largest reason I'm writing you is that I feel at this time with all the economic uncertainty and job loss by so many around the country that we should stand behind people who are creating jobs and support them when we can. This plant creates the material we need 11w the road and bridges that everyone drives on regardless of their opinions. The material they create does in fact assist in creating jobs in an industry that many around no doubt don't have any respect for. I might also add that I was born and raised in Loveland Co and I love Northern Colorado as it has always been a home for good people who stand up for what they believe in. It has changed over the years and seems to back down or move out of the way to the complaining of the few and whoever has the money to take legal action. Northern Colorado has became a location that many have moved to because of what we were and now want to change that. Please take this into consideration at the hearing as I will not attend. Also this email is not intended to be public for the fear of retaliation. I can be reached at: Thanks for your time Sent from my !Phone From: petestraubonline@gmail.com To: Bethany Pascoe; Angela Snyder Subject: Martin Marietta Minerals Plant on WCR 13, South of US -34 NOISE AND DUST Date: Monday, June 8, 2020 1:51:14 PM EXHIBIT 89 Caution: This email originated from outside of Weld County Government. Do not click links or open attachments unless you recognize the sender and know the content is safe. Dear Ms. Pascoe & IVs. Snyder: Vy name is Pete Straub, and I live at 27793 Hopi Trail (Lot 27, Parcel 095718103027) on the very west side of lndianhead Estates. Although I must not qualify for the 500' boundary to be notified for hearings, etc., as living just outside of it and on the western border, I am impacted as severely as one of the closest homes to the concrete operation. I be at the hearing and will stand in opposition again, to this travesty. I will assume that you have researched and informed yourself on the history of our community and surrounding area against this facility, so I will not repeat it here. If the proposed rezoning was appropriate, Planning Department and proponents on the Weld Board of Commissioners could have directed/suggested the applicants to pursue that route five years ago. They obviously thought USR was more appropriate . .. until MMV began losing that battle in the Colorado Court of Appeals. At the last minute, the applicants switched tactics in this bizarre acquisition of a small rail operator, Rock & Rail, declaring that the site was actually an appendage of a rail line qualifying for federal jurisdiction. Without the already diffused argument that this facility qualified for approved USR status, the original rail spur would have never been laid! Non-compliance with Comprehensive Plan: Pertaining to this rezoning attempt, Weld County's own Comprehensive Plan argues against this type of use. In Section 22-2-20, Agricultural Goals and Policies, the following goal and policy are stated: A.: Goal 2. Continue the commitment to viable agriculture in Weld County through mitigated protection of established (and potentially expanding) agricultural uses from other proposed new uses that would hinder the operations of the agricultural enterprises. A. Policy 2.2. Allow commercial and industrial uses, which are directly related to or dependent upon agriculture, to locate within agricultural areas when the impact to surrounding properties is minimal or mitigated and where adequate services and infrastructure are currently available or reasonably obtainable. These commercial and industrial uses should be encouraged to locate in areas that minimize the removal of agricultural land from production. This goal and policy does not support a concrete and asphalt plant. However, there is many agriculturally -oriented businesses that would be consistent with this goal or policy. Farm stores, Implement dealers, tractor repair facilities, and water reservoirs served and serving nearby irrigation canals would be more acceptable, more compatible, and more consistent with Weld's plan. Dust and air pollution do not help surrounding cropland, much less an entire rural community. Lack of Recent Complaints: (2017-19) Given the total ignorance of our communities concerns by Weld County based upon the commissioners indifference from the very beginning of the USR process, how can anyone not lose heart and give upI Let me repeat WE JUST GAVE UP COMPLAINING AND PRUSUED LEGAL REMEDIES AGAINST WELD COUNTY'S DECISION. What could be more evident of complaint! Weld County's clear message to all of us during many sessions in the USR process was "we don't care what you thinks" We know of too many incidents after the plant construction commenced that the inspectors "eventually" got out to check, when the wind direction or weather changes the next day Of course everyone naturally went home, gave up, and continued to just gripe among ourselves about the noise, the vibrations from the train, the unauthorized loud concrete grinding operations and all of our respiratory problems associated with dust and crap in the air that they create on a weekly basis Again, let me emphasize, We have dealt and continue to deal with dirt, dust, and noise such as loud screeching from rail wheels, uncoupling of cars, (recently as this past Saturday) grinding of concrete, (illegal and unauthorized use), for over two years as they operated this facility, and as my wife has severe asthma — this impacts her ability to enjoy our patio and outdoors Moreover, Ms Snyder's comment about our "neighborhood was predestined to be surrounded by incompatibility" is only correct if the surrounding rural community's input was not considered, which it was clearly not in several cases Other Reasons not to Approve this Rezoning 1 It incompatible at this scale and if allowed to grow to include asphalt manufacturing, it will be egregious 2 The plant is already illegal The Court of Appeals said so in 2017, and R&R withdrew its Use by Special Review application in 2018 So now they exist as a zoning violation There is a box on their application to check to indicate if a zoning violation exists and they say no Yet for some reason Ms Snyder overlooked this 3 In 2017 the Court of Appeals ruled that the plant was illegal because Martin Marietta couldn't demonstrate that it met noise requirements Today, as we all know, that's still the case Once a court decides something it can't be re -litigated If we were finally forced to appeal, the Court of Appeals is likely to reverse Weld's approval for this reason 4 If approved, this action is defacto "Spot Rezoning " We have zoning for a reason, and so any attempt to circumvent lawful zoning should be unlawful This rezoning is done to benefit a big corporation, MMM, Rock & Rail, and individuals, (the Gerrard's) and is clearly unlawful 5 The BOCC turned down an application for even a less severe rezoning of the neighboring north tract in the same section in November 2015 by Weld 34 LLC Some of us believe that several of the commissioners now know they erroneously approved the MMM plant and regret the action This is your chance to make this right and deny the proposed zoning change The Colorado Court of Appeals case must be allowed to continue to adjudicate the issues relating to USR approval If there is an appropriate Federal case for STB jurisdiction, allow the courts to decide the fate Thank you EXHIBIT 90 June 3, 2020 Weld County Planning Commission 1555 North 17th Avenue Greeley, Colorado 60631 Attention -Angela Snyder: P crrIVF JUN 09 2p20 ivelU County Planrting Department GREELEY OFFICE My wife and I are the owners of Sage Brush, LLC, the entity that owns the 8.5 acres directly to the south of the railroad tracks that are located on the Rock and Rail property, Hiway 34, located on County Road 13, Johnstown, Colorado. Our property has 57 large RV storage units, Rainbow Bridge Pet Crematorium, as well a two homes. We support the change of zoning request of Rock and -Rail's -application, #COZ220-0004, it Hiway 34 facility in Weld County. We have no complaints about the site and believe most people share our view This facility helps address the severe shortage of construction rock on the Front Range and it does so in a way that reduces truck traffic by utilizing rail. I am certain that the Highay 34 operation will continue to provide significant financial benefits to Weld County and the local municipalities in Weld County. Sincerely yours, Randy L. Jackso Sage Brush, LLC Weld County Planning Commission 1555 North 17th Avenue Greeley, Colorado 60631 Attn: Angela Snyder Re: Rock and Rail -- Highway 34 Plant Rezoning Application Dear Ms. Snyder: EXHIBIT 91 KRAEMER NORM Matti I am writing on behalf of Rock and Rail in support of their request for a zoning change to permit operations at the Rock and Rail Facility located on Highway 34 in Weld County. We appreciate your consideration in advance for supporting their efforts to provide a critical need for northern Colorado for aggregate and construction materials. Kraemer has a long history of partnering with Martin Marietta, Rock and Rail's parent company, throughout Colorado on numerous major infrastructure projects. Currently, they are a major subcontractor to Kraemer on our North 1-25 Express Lanes Project for CDOT. This project consists of the construction of roughly fourteen (14) miles of new express lanes between Johnstown and Fort Collins. At the time of our proposal, we had planned to service much of our project directly with the Rock and Rail Highway 34 Plant site, located just east of our project. Trucking operations back and forth from this plant site would have drastically reduced from what we are currently experiencing, improving safety of the travelling public in this area, as well as reducing traffic congestion and overall emissions. With much of the major construction of this critical corridor remaining, we believe that approval for their operations out of this plant will provide a great value to Weld County and overall northern Colorado community in the way of safety, environmental, and quality benefits. As a contractor that specializes in heavy civil and major infrastructure work, Kraemer is keenly aware of the looming shortage of quality aggregates in northern Colorado. We believe that this facility will help solve the major issues of finding quality materials in the area, thus providing an economic stimulus with cost-effective materials that will be used for much of the growth and expansion in this area. As proof of this shortage, you may have noticed the stockpile of aggregates that CDOT coordinated for our project at the southeast quadrant of Hwy 402 / 1-25 in Johnstown. This aggregate was processed from the work on the Big Thompson Canyon Flood Repair program and hauled to our project at a premium cost primarily due to the concerns of diminishing supply for aggregates in northern Colorado. Martin Marietta's vision of supporting this area with their Rock and Rail facility will help solve this problem. Kraemer fully supports Rock and Rail's efforts in their rezoning application for the Rock and Rail facility. Your approval of this will provide tremendous economic, safety, and environmental benefits for the entire northern Colorado community. Very Truly. "ours, y :al e y 5 io Vi e President 900 W. Castleton Road, Suite 220 - Castle Rock, CO 80109 - PHONE: (303)688-7500 - FACSIMILE: (303)688-8811 An Equal Opportunity Employer Hello