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Home My WebLink About20202126.tiffHEARING CERTIFICATION DOCKET NO. 2020-47 RE: CHANGE OF ZONE, COZ20-0004, FROM THE A (AGRICULTURAL) ZONE DISTRICT TO THE 1-3 (HEAVY INDUSTRIAL) ZONE DISTRICT - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC A public hearing was conducted on July 22, 2020, at 10:00 a.m., with the following present: Commissioner Mike Freeman, Chair Commissioner Steve Moreno, Chair Pro-Tem Commissioner Scott K. James Commissioner Barbara Kirkmeyer - EXCUSED Commissioner Kevin D. Ross Also present: Acting Clerk to the Board, Jess Reid Assistant County Attorney, Bob Choate Planning Services Department representative, Angela Snyder Public Works Department representative, Melissa King Health Department representative, Lauren Light The following business was transacted: • I hereby certify that pursuant to a notice dated May 28, 2020, and duly published June 3, 2020, in the Greeley Tribune, a public hearing was conducted to consider the request of Gerrard Investments, LLC, c/o Rock and Rail, LLC, for a Change of Zone, COZ20-0004, from the A (Agricultural) Zone District to the 1-3 (Heavy Industrial) Zone District. Bob Choate, Assistant County Attorney, made this a matter of record. • Commissioners Moreno and Freeman each addressed a potential conflict of interest, as their names appear on a lawsuit related to a USR, pertaining to the subject parcel. They stated they were advised by the County Attorney's Office that no conflict exists, as this case is separate from the USR, and Chair Freeman outlined the process for the hearing. • Angela Snyder, Department of Planning Services, provided the general location of the site and a description of the facility currently operating on the site, permitted by Use by Special Review (USR) Permit, USR15-0027. She elaborated the USR Permit is no longer valid as it was overturned by the United States Court of Appeals, the site is the subject of Federal Civil Action, 1:18-cv-02453-RBJ, and stated since 2018 the site has operated in accordance with the requirements of the Surface Transportation Board (STB), via the Interstate Commerce Commission Termination Act of 1995 (ICCTA). She explained a COZ would expand the types of Uses available on the property to include any or all of the Uses Allowed by Right, in the 1-3 (Heavy Industrial) Zone District, through either an administrative Site Plan Review (SPR) process, or a USR process, which would require approval by the Board. She cited Weld County Code Section 23-2-40.B, outlined the criteria the Board must consider when approving a COZ, and reviewed each criteria in detail. Discussing Criteria 1, she reviewed the Goals of the Comprehensive Plan, responses from referral agencies, and the Goals of Industrial Development, e, PaiksI ), PWC -IDA), act -L> C T(B() Nhoz° 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 2 found in Section 22-2-80.F. She mentioned the site is located within the Growth Management Area (GMA) of the Town of Johnstown, the Coordinated Planning Agreement (CPA) areas of the Towns of Johnstown, Milliken, and Windsor, and the three (3) mile referral area of the City of Greeley, and noted the municipalities did not indicate an interest in annexing the subject property. She listed the adjacent railroads and roads, and noted water is provided by the Little Thompson Water District (LTWD). She stated the site is within the three (3) mile referral area of the Town of Johnstown, and mentioned the applicant was encouraged, during the pre -application process, to consider annexation into the Town of Johnstown in accordance with the Weld County/Town of Johnstown CPA; however the applicant was not interested in annexation when contacted by the Town of Johnstown. She noted there is a recorded Improvements Agreement associated with the site, 2016-3738, discussed Development Standards (DS) to mitigate the impacts of 1-3 (Heavy Industrial) zoning, and mentioned Planning staff had received approximately 30 letters of support from area construction and railroad related businesses. e Regarding Criteria 2, Ms. Snyder discussed compatibility, stating nearby municipalities and surrounding property owners (SPO) had expressed concerns about compatibility. She stated the Town of Windsor and the City of Greeley's compatibility concerns relate to a 2008 Intergovernmental Agreement (IGA), which Weld County was not a party to, that identifies the area as a secondary corridor area outside the Principal Employment corridor, but is outside the GMA of both of the municipalities, and, therefore, is not likely to be incorporated into either municipality. She indicated the Town of Johnstown recommended denial due to incompatibility with future plans for the area, as the 2008 Johnstown Land Use Framework Plan designates this area for conservation oriented agriculture and large lot residential Uses. She noted County Road (CR) 13, as well as the area around the subject site, are encumbered by three (3) rail lines within one (1) mile, making the location unlikely for residential development, and described surrounding land uses. She stated the Town of Milliken expressed concerns with increased rail and truck traffic and affirmed the County does not have the ability to regulate rail traffic but encourages applicants to address suggestions or concerns. She explained the Indianhead Subdivision, located to the northeast of the subject site, is zoned A (Agriculture), and Planning staff received a few letters of support from SPOs, citing the need for industrial locations to meet the demand of regional growth. The North Front Range Metropolitan Planning Organization (NFRMPO), 2010 Land Use Allocation Model, shows the area to the east and west of the Indianhead Subdivision to be commercial, the land to the north to be industrial, and none of the affected municipal future land use plans designate residential land uses on the north, east, and west of the Indianhead Subdivision. She explained, rather than prohibiting commercial or industrial development in the area, staff seeks to mitigate the effects of the proposed development on the Indianhead neighborhood and other surrounding properties. She stated the Federal Highway Administration's Freight and Land Use Handbook encourages context sensitive solutions to mitigate the impacts of industrial uses on residential neighborhoods, and displayed a map of the existing operation, its proximity to the Indianhead Subdivision, the home nearest to the subject site, as well as similar operations, and their proximity to the nearest residential neighborhood, or home. El Discussing Criteria 3, Ms. Snyder reiterated the site is served by the LTWD for water service and uses septic systems for sewer. Regarding Criteria 4, Ms. Snyder cited Section 23-3-330, which states properties zoned 1-3 (Heavy Industrial) should be located near transportation 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 3 infrastructure, such as highways, railroads, or airports and described the subject site is adjacent to CR 13, within one half (1/2) mile of U.S. Highway 34, is adjacent to the Union Pacific rail line, and is in close proximity to two (2) Great Western rail lines. Speaking to Criteria 5, she stated the applicant had demonstrated compliance with applicable standards of overlay districts, minerals, soils, and geologic hazards and indicated staff finds most aspects of the location are ideal, given its proximity to an arterial road and U.S. Highway 34, in addition to the extensive landscaping onsite, which blends the industrial development with the surrounding properties. Ms. Snyder stated Planning staff found the application meets all of the criteria for a COZ, and entered the non -recommendation of the Planning Commission (PC), due to a split vote of 4-4, and the ninth member abstaining due to a conflict of interest, into the record as written. She displayed and described images of the site and surrounding views. • Commissioner James cited Section 23-2-240-B.2, regarding compatible land uses, and questioned whether that refers to existing or future uses, and Ms. Snyder confirmed Planning staff considers existing land uses and Mr. Choate explained an administrative SPR decision is subject to appeal by the applicant, noting he would research whether other parties are able to appeal the decision as well. Ms. Snyder affirmed the maximum allowable noise level under 1-3 (Heavy Industrial) Zoning is 75 dBA at night and 80 dBA during the day. She explained, if the zoning were changed, only the portions of the property not being regulated by the STB would require a SPR. She spoke to the land use authority exercised by the STB, stating their regulations tend to use language such as "should", opposed to "shall', and confirmed there is no land use authority on the current operation. With regard to the previous question about appealing an administrative SPR decision, Mr. Choate affirmed there is no limitation on who can appeal the decision, and elaborated the SPR process only reviews whether the applicant is in compliance with Code, no mitigative measures are added to what is required by Code, and there is no SPO notice. • In response to Commissioners Moreno and Ross, Ms. Snyder displayed and described nearby railroads and indicated on the map where the Rockin S Ranch event center is located. Responding to Commissioner James, she explained, if the COZ is granted the STB would stay in control of the site, noted a rail -dependent facility can voluntarily subject themselves to local government control, and confirmed USR15-0027 is no longer valid, therefore, the County has no ability to enforce the DS of that USR. In response to Commissioner Ross, Ms. Snyder confirmed the County is not party to the 2008 IGA between the Town of Windsor and the City of Greeley, or the future land use planning of the Towns of Milliken, Windsor and Johnstown. • Melissa King, Department of Public Works (PW), stated the parcel has two (2) existing, permitted accesses onto CR 13 and no additional accesses have been requested. She indicated PW is requiring the existing Improvements and Road Maintenance Agreement (Doc ID #2016-3738) be reviewed for any needed updates and/or revisions. • Lauren Light, Department of Public Health and Environment, reiterated the LTWD provides water and there are two (2) commercially permitted septic systems onsite. She stated, because this is a COZ request, items such as noise and dust control will be stipulated during the SPR process and repeated the maximum allowable noise levels for the 1-3 (Heavy Industrial) Zone District, previously provided by Ms. Snyder. She explained fugitive dust cannot leave the property, 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 4 described the emissions limits, and outlined suggested plat notes. In response to Commissioner James, Ms. Light expressed any dust monitoring would have to be done by a consulting firm and in response to Commissioner Moreno's question about noise, Ms. Light relayed nighttime hours are defined as 7:00 p.m. to 7:00 a.m. Responding to Commissioner Ross, Ms. Snyder confirmed the 2010 Land Use Allocation Model is the most current version on the NFRMPO website. IR Brian Connolly, Otten, Johnson, Robinson, Neff and Ragonetti, PC, represented the applicant, thanked the Weld County staff for their work on the application and referenced additional application information (Exhibit AR), submitted two (2) days prior. He shared a PowerPoint presentation (Exhibit BF), outlined the project team and history of the site, and explained the COZ will provide consistency with good planning principles, align the zoning with the site's use, and complete site buildout, as envisioned by the 2015 USR approval. He asserted Rock and Rail is operating as a federally licensed railroad and has the right, under federal and county law, to continue operating the railroad and transloading operations, regardless of Board approval. El David Hagerman, Vice President of Rock and Rail, stated Rock and Rail is a Class III, federally licensed rail carrier, providing logistics and transloading services for the front range. He outlined community projects that were supported by the Martin Marietta Highway 34 terminal. Mr. Connolly explained federal preemption and provided a brief history of the legal proceedings associated with the site. He asserted Rock and Rail filed the COZ application asking the County to zone for, and regulate, the concrete mixing regulations, as well as other future uses. He stated the applicant is voluntarily agreeing to the County's use limitations, operational requirements, noise limitations, and other regulations, none of which would apply under federal law. He stated aggregate processing requires infrastructure to receive aggregate material, space to unload, mix and load it, and infrastructure to transport the material, adding rail is the safest and most efficient way to move aggregate. He affirmed the site is large enough to accommodate material unloading, processing, and loading, and nearby, adequate road infrastructure provides a means to efficiently deliver the finished product. He described the advantages of the Highway 34 Terminal as being rail -served, which eliminates 800 truck trips (per train) from the roadway, reduces traffic and environmental impacts, and provides an efficient manner to support the construction industry, which builds the community and grows the local economy. e Tom Haren, AGPROfessionals, commended Ms. Snyder for her planning review, displayed a map of the Weld County Regional Planning Designations, and indicated the area near the site will continue growing, predominantly with commercial, mixed use, and industrial designations. He displayed a map of nearby infrastructure, pointing out the site's proximity to U.S. Highway 34, CR 13, two (2) rail lines, a large water line, and electric power, and explained, due to the existing infrastructure, the area qualifies as an Urban Development Node, under Weld County code. He provided examples of other areas, in Weld County, rezoned to 1-3 (Heavy Industrial), and located in an Urban Development Node, displayed a map of the surrounding, zoned land uses, and asserted the COZ is compatible. 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 5 E Mr. Connolly discussed the Weld County approval standards, claiming the COZ is consistent with the Comprehensive Plan and cited Code Section 22-2-20.G.2 (A.Policy 7.2), which he clarified supports maintaining agriculture in the non -urbanizing areas, noting the subject site is in an urbanizing area. He referenced the surrounding land use map displayed by Mr. Haren and stated 1-3 (Heavy Industrial) zoning can be made compatible by site characteristics, site planning, federal/state law and County Code. He outlined the five (5) main concerns presented at the PC hearing as being uses, views, noise, dust, and stormwater, and addressed each in detail. He stated the uses are limited by who is using the site and Rock and Rail has no plans of leaving the site, nor do they intend to use the site other than for aggregate processing. He reviewed 1-3 (Heavy Industrial) uses which would not be allowed on the site due to the limitations set forth in the Weld County Code, such as an adult business and domestic septic uses. Regarding the views, he displayed an image depicting spacing of 1,400 feet between the Indianhead Subdivision and the concrete plant, and described visual mitigation to include berming and buffering, with a 15 -acre buffer area between the subdivision and the site. In response to Commissioner Moreno, Mr. Connolly repeated the distance between the subdivision and the plant, added it is 750 feet from the subdivision to the railroad, and explained the architecture of the site was designed to reflect a silo or other type of agrarian architecture. IR He displayed a noise contour map, based on professional measurements of sound from the facility and stated the initial review showed the facility complied with the industrial noise standards and was close to the residential noise standards. He noted noise from the site was approximately 40 dBA in the Indianhead Subdivision and mentioned under the current federal regulation, there are no noise limits. He explained dust control is regulated by the Colorado Department of Public Health and Environment (CDPHE) under the site's Clean Air Act (CAA) permit, the facility has had no air quality violations and admitted there was one (1) air quality incident, which occurred as a result of a faulty switch and was remedied before regulators could make it to the site. He described daily watering of the site and water sprayers on the conveyer belts are utilized as dust mitigation measures. He explained the Stormwater Plan for the site was approved in 2015, there are three (3) detention ponds onsite, and the only stormwater release occurred in 2017, during construction of the site. He stated based on recent water quality testing, there is not a water quality issue from the site, but if the County wanted to impose additional monitoring requirements to ensure stormwater is of high quality, Rock and Rail would certainly agree to them. Mr. Connolly displayed a map of real estate values in the area, which showed increased median sales prices in the Indianhead Subdivision and the immediate surrounding area, since the facility was built. He relayed the increase in value was five percent (5%) higher than the rest of Weld County, and displayed images showing the location of seven (7) new homes built in the Indianhead Subdivision, since 2016. e Lastly, he outlined the good neighbor efforts put forth by Rock and Rail, such as time spent working with neighbors to mitigate concerns, agriculture-themed architecture, a truck underpass, separation distance from residential areas, berming, buffering and landscaping, and noise and dust mitigation. He described the outreach measures as being a community working group, the establishment of a $100,000.00 landscaping fund for additional screening for Indianhead residents, a landscape fund and landscape architect for Rockin S Ranch, maintenance of pre-existing mitigation measures, and providing contact information to all neighbors. He added Rock and Rail is willing to make additional modifications to the physical buildout of the property to accommodate additional concerns and reviewed the mitigation efforts, based on feedback presented at the PC hearing. In response to Commissioner Moreno, he clarified the locations where they focused their good neighbor efforts and addressing Commissioner James' earlier question, Mr. Connolly clarified the 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 6 STB is a body that regulates railroads and will continue to regulate the railroad functions of Rock and Rail regardless of the COZ approval. He stated the County would regulate the concrete mixing operation, asphalt plant, and anything other than the movement of a train or the conveyance of material off the train. He went on to explain the court will determine what falls within the definition of rail transportation and explained the STB and ICCTA define rail transportation as the actual train and services related to rail. Gary Gerrard, landowner of the subject site, stated he grew up in Loveland and has worked in the farming and construction industries. He currently operates Gerrard Excavating and stated as a buyer of aggregate he noticed local deposits were being depleted, the shortage caused an increased price in aggregate, and, in turn, an increased price in homes. He explained he bought the land with the intent to locate his business there and eventually construct a transloading facility, due to the existence of the two (2) rail lines on the property. He stated he approached Martin Marietta, in 2014, about building the transloading facility and noted he only offered the property to Martin Marietta, as he had grown to respect and trust them, having worked with them for 40 years. He mentioned, throughout this process, the neighbors have been unwilling to negotiate or compromise, and have insisted only on the removal of the facility from the land. In response to Commissioner Moreno, Mr. Gerrard confirmed he purchased the property in phases, between 2005 and 2013. le Ryan Schaefer, Chief Executive Officer of NAI Affinity, expressed support for the COZ, adding he had no vested interest in the property. He stated the COZ is consistent with the Comprehensive Plan and asserted residential and industrial uses can coexist. He provided, as examples of coexistence, the Water Valley Subdivision in Windsor and the 2,534 master -planned community in the southeast quadrant of the Interstate 25 (1-25) and U.S. Highway 34 intersection. e Jason Waldo, Weld County resident, expressed support for the COZ, as the site directly and indirectly supports 4,000 jobs in the area and commended Rock and Rail for the mitigation measures they implemented to make the site compatible. He relayed this type of business needs to be by the railroad tracks and mentioned everyone uses aggregate. lEri Matt LeCerf, Town Manager of the Town of Johnstown, referenced PC Exhibit 99 (letter from Mr. LeCerf, dated 6/15/2020, and Resolution No. 2020-13, opposing the application for the COZ). Regarding the approval of USR15-0027, he explained the Planning staff, the PC, and five (5) municipalities recommended denial of the USR, the NFRMPO recognized the land as agricultural, and the Town of Johnstown's GMA recognized the land as residential property. He asserted local control of the USR application should have been delegated to the Town of Johnstown at the time of the USR application and in response to Commissioner Ross, confirmed the Town of Johnstown received the County's annexation inquiry, but declined annexation as the Town of Johnstown did not support the use associated with the USR. In response to Commissioner James, Mr. LeCerf explained the Town of Johnstown, not Weld County, should be able to determine development in their GMA, confirmed the Town of Johnstown does not annex properties without a landowner's consent and stated the Town of Johnstown's Comprehensive Plan and Growth Management Plan were last updated in 2006, mentioning they are currently being updated again. He stated he was unsure if the rail line was accounted for when designating the land as residential property, and 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 7 having been a part of the plan updates as the town Mayor, Commissioner James confirmed the rail was not considered at that time. In response to Commissioner Moreno, Mr. LeCerf confirmed the Johnstown Town Council voted unanimously to approve Resolution No. 2020-13, opposing the COZ, and confirmed materials for projects constructed in the Town of Johnstown came from the subject site, as indicated by Mr. Connolly during his presentation. In response to Commissioner Ross, Mr. LeCerf stated if there is a CPA between jurisdictions, the entities should be respectful of how the other would like to see areas in their GMA develop, and deferred to Kim Meyer to speak to whether the Town of Johnstown is collaborating with Weld County while updating their Comprehensive Plan and Growth Management Plan. e Kim Meyer, Planning and Development Director of the Town of Johnstown, confirmed they have a CPA with Weld County, they have contacted Weld County about their Comprehensive Plan and they are not planning to adjust their GMA boundaries. There was further discussion about the coordination between the two (2) jurisdictions as they update their plans, and Commissioner James relayed the language in the CPA does not say Weld County will honor the Town of Johnstown's GMA. e Sally Boccella, Johnstown resident and District 2 representative, expressed opposition to the application, citing review of the land use codes, visits with neighbors affected by the operation, and Resolution No. 2020-13. In response to Commissioner James, Ms. Boccella stated the USR never should have been approved, the facility is incompatible with surrounding uses, and in response to Commissioner Ross, she clarified she was representing herself. • Commissioner Freeman recessed the hearing for lunch. e Commissioner Freeman reconvened hearing at 1:15 p.m. Mark Lacis, Ireland, Stapleton, Pryor and Pascoe, PC, represented the Indianhead West Homeowners Association, Inc. (HOA), and SPOs David Kisker, Gary Oplinger, Wolfgang Dirks, James Piraino, Rockin S Ranch, LLC, and John Cummings and asserted the COZ request was an unconstitutional request for spot zoning. He reviewed the history of the site, noting, while the case was under appeal, Martin Marietta expressly assumed the risk of constructing the facility and acknowledged they would tear it down if the USR was deemed invalid by the Colorado Court of Appeals. In November of 2017, the Colorado Court of Appeals deemed USR15-0027 invalid, citing incompatibility due to the inability for Martin Marietta to achieve the residential noise standard at the neighboring property line. He explained Martin Marietta then transferred ownership of the facility to its wholly owned subsidiary, Rock and Rail, for $10.00, and Rock and Rail sued the neighborhood defendants in federal court, citing, as a railroad, local government was powerless to regulate the facility due to federal preemptive law. He stated the case is scheduled to be heard on August 24, 2020, and requested a continuance until after the federal ruling. He relayed Colorado law prohibits spot zoning, reiterated Martin Marietta built the facility at its own risk, and claimed the COZ will result in an island of Industrial zoning which is not compatible with the surrounding land uses. a He outlined the criteria of the Weld County Comprehensive Plan, asserting the facility does not meet the criteria and the noise map and Land Use map, shown by Rock and Rail, do not portray accurate information. In response to Commissioner Moreno, Mr. Choate determined the federal case does not need to be completed prior to the Board's COZ consideration, stating there is no 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 8 provision in the Code requiring a subject site to be in compliance, prior to applying for a COZ. In response to Commissioner James, Mr. Lacis defined spot zoning and comprehensive zoning schemes, and stated he believes existing, surrounding uses define compatibility. Chair Freeman explained 98 percent of unincorporated Weld County is zoned A (Agricultural), so if zoning should not change, based on existing uses, nothing could ever be zoned commercial, industrial, or residential. • Dave Kisker, Indianhead resident, spoke on behalf of the CLR-34 Neighborhood Association (CLR-34), shared a PowerPoint presentation (Exhibit BX) and reiterated the noise map, presented by Rock and Rail (Exhibit BF), was created after temporary noise mitigation was installed. He read the definition of "Compatibility" and "Conflicting Land Use" from A Planner's Dictionary, provided examples of USRs which were denied by the Board, due to incompatibility, and discussed the size, noise, smell, and dust associated with the concrete plant. • Chris Friede, owner of Rockin S Ranch, stated her property is agricultural land, not commercial, as portrayed by Rock and Rail's presentation. She shared images of the site and described the transformation of her property since the approval of her USR, in 2015. She described unsightly views of the plant, berm, and train unloading station, provided wedding industry revenue statistics and explained the wedding industry supports many small businesses, as well as the tourist industry, which will be negatively impacted if the zone change is allowed. • Ellen Kisker, Indianhead resident, expressed concern for the property value reduction, asserted the loss in property value demonstrates incompatibility, and claimed the real estate report, as presented by Rock and Rail, is flawed. She displayed slides demonstrating how the real estate analysis done by CLR-34 addresses the flaws of the Rock and Rail real estate report and compared average appreciation rates of the Indianhead Estates West and the Mad Russian subdivisions. • Gary Oplinger, Indianhead resident, referenced the noise map submitted by Rock and Rail (Exhibit AR), CLR-34's response to the map (Exhibit BR), and displayed Colorado Revised Statute 25-12-101 (noise), 25-12-103 (public nuisance), and 25-12-102 (dBA and decibel). He asserted the Colorado Court of Appeals 2017 decision stated compliance with noise standards is required for compatibility, described the noise monitoring done by CLR-34, and provided a slide demonstrating noise levels on several occasions, between July 2019 and July 2020. Lastly, Mr. Oplinger reiterated the site is incompatible due to noise, relayed the noise from the site is a public nuisance, and indicated, if the COZ is approved, there will be no restrictions on operations. • Dr. Trina Bogart, Indianhead resident, displayed images of dust and referenced material she submitted about the health impacts of particulate matter (Exhibit AU). She stated she conducted several case studies on the negative health impacts experienced by herself and other residents of the neighborhood, and in response to Commissioner Moreno she confirmed she has lived in the neighborhood for 11 years. • Mr. Kisker spoke about compatibility, displayed a map titled "True Current Land Use", and provided examples of surrounding properties, which are primarily agricultural with a limited 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 9 amount of commercial use. He outlined the allowed uses in the Limited Industrial Zone District of the Towns of Johnstown and Windsor and reiterated the site is incompatible, is an attempt at spot zoning, and if approved, 1-3 (Heavy Industrial) zoning removes Development Standards, in turn removing County control of mitigation. In response to Commissioner Ross' question about possible solutions, Mr. Kisker relayed Rock and Rail should withdraw the 1-3 (Heavy Industrial) application, apply for I-1 (Light Industrial) zoning and work with the neighbors concerning Development Standards for the USR. • Bob Peterson, Northern Colorado resident, spoke on behalf of the home building industry and expressed support for the COZ and the facility, stating the location contributes to the decreased cost of aggregate, in turn making home prices more affordable. Robb Redlin, former resident of 6433 CR 56, the closest home to the dumping site, stated his family did not mind the presence of the train, and asserted his washer and dryer created more vibration than the train did. He explained the dust he saw while living there came from the nearby fields, not the subject site, and he never had an issue with the site, rather, his asthma improved. In response to Commissioner Ross, he showed, on a displayed map, where he lived. ▪ Jim Piraino, Indianhead resident, stated he had asked Rock and Rail not to schedule the train at night and was told they cannot control the train schedule. He played an audio recording, from June 22, 2020, of noise coming from the subject site. CI Ronnie Bogart, Indianhead resident, stated the air over the facility is not stationary, spreading hazardous particulates from the site. She referenced a load ticket (Exhibit BT), which blew from the subject site into the neighborhood and noted the warning on the back of the ticket, about inhaling the product. • Pete Straub, Indianhead resident, relayed the COZ is illegal spot zoning, expressed concern about odor associated with the proposed asphalt plant and stated Martin Marietta has not been a good neighbor. • Rich Werner, Upstate Colorado Economic Development, expressed support due to the creation of primary jobs and the infrastructure, which is needed in Northern Colorado. He stated the facility acts as a primary sector employer and Weld County needs aggregate to support growth. ▪ Lisa Piraino, Indianhead resident, read a statement for her neighbor, Don Casey, who spoke of happy times, from 2002 to 2015, prior to Martin Marietta's presence. His letter explained his wife developed Chronic Obstructive Pulmonary Disease, caused by respiratory failure, and passed away in 2016. • Melanie Schlotter, Indianhead resident, read a staff report (date not disclosed) from the Department of Planning Services, which read, in part, the Indianhead Subdivision was predestined to be surrounded by incompatibility, and the Planning staff and the applicant have 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 10 sought to mitigate the effects of the development from the neighborhood and other surrounding properties. She also explained there was resistance in 1970, by the Board of County Commissioners (BOCC), to approve the subdivision, and in 1975, it was approved by a Colorado Court of Appeals order. e Tom Peterson, Director of the Colorado Asphalt Pavement Association, referenced his letter of support (Exhibit W), described the depleting supply and growing demand for aggregate, and mentioned the economic benefit of the facility. Chair Freeman recessed the hearing for five (5) minutes. Upon reconvening, Tricia Bartolomei, Indianhead resident, stated she had recent health issues due to the dust from the plant. El Harold (last name is inaudible), Weld County resident, stated he worked on the Martin Marietta site, indicated he believed they had done a lot to address water and dust issues, and relayed Martin Marietta is the best and most cautious company he had worked for. e Joanne Fenton, lndianhead resident, discussed the State -issued, stormwater discharge permit, mentioned the monitoring results are not public, and asserted water quality monitoring is not consistently being reported, as required. She questioned why the pond that overflowed is not permitted, why there is no groundwater hazardous waste permit, and requested a denial of the COZ. e Denise Rhoades, lndianhead resident, described a recent health condition which was diagnosed as chronic, severe dry eye, and requires several, expensive medications to treat. lEi Don Anderson, lndianhead resident, discussed fugitive dust and asked for a denial of the COZ. • Randy Stippich, Weld County contractor and Colorado native, discussed the cost savings of purchasing aggregate from the facility, as it is a depleting resource, stated Martin Marietta is great to work for, and expressed support for the COZ. e Jacquelyn Ross, Weld County resident, stated she has lived in the area of the site for 30 years, in the last two (2) years her asthma has gone from controlled to uncontrolled, and her seven (7) year old does not play outside due to the dust from the unloading station. le John Anest, owner of a construction company, expressed support for the COZ by stating aggregate materials are vitally important to the construction industry and Martin Marietta is excellent at following standards. 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-O004) PAGE 11 • Keith Lightfield, Lightfield Enterprises, stated he does concrete flatwork and asphalt repair in Northern Colorado. He supported the COZ and affirmed the facility is an asset to the area. • Dr. Vicki Wilson, Indianhead resident, expressed opposition of the COZ due to her grandson's asthma and the amount of dust in the house, and asked for a denial of the COZ. el Michael Anest, contractor in Northern Colorado, expressed support for the COZ and indicated the location of the facility is critical for the acquisition of aggregate materials. • Ann Hopp, Indianhead resident, stated the berms and walls are not protecting SPOs from the impacts of the site and the COZ would allow Rock and Rail to inflict more industrial exposure to SPOs. El Janet Ross, Weld County resident living south of the site, relayed 1-3 (Heavy Industrial) zoning is extreme, and explained she would like to see a compromise with I-1 (Light Industrial) zoning with a USR, which she believes will help mitigate the current issues. She mentioned there is a lot of train noise, given her home is near the unloading station, and noted much of the dust at her home comes from traffic on the dirt road, near her home. • Scott Renfroe, Weld County native and contractor in the area, expressed support for the COZ, noting he buys aggregate material from Martin Marietta's competitor. He explained not everything can be mitigated, affordability is important, and the closer the product is the more affordable it is. Ci Dr. Craig Wilson, Indianhead resident, stated he has lived in Weld County for 44 years and cares for several people in the Indianhead Subdivision. He reported an increase in health issues in neighbors, in the last two years, due to the on -site concrete production. He submitted an article titled, "Exposure to air pollution and COVID-19 mortality in the United States: A nationwide cross-sectional study' (Exhibit BU). El Chair Freeman recessed the hearing to allow the applicant to prepare a rebuttal. • Upon reconvening, Mr. Connolly confirmed Rock and Rail agreed with all the COA and Chair Freeman requested Mr. Connolly take a few minutes to respond to the comments provided by the SPOs and then answer questions from the Board. Mr. Connolly confirmed they are requesting the railroad be left under the jurisdiction of ICCTA, but everything else will be under County jurisdiction, and noted the federal case will most likely be appealed so Rock and Rail would like to move forward with the COZ request. He discussed the Zoning Enabling Act, as it relates to spot zoning, and reiterated the applicant is asking to be subjected to zoning regulations, not relieved of them. He asserted the application is in conformance with the Weld County Comprehensive Plan, re -displayed the Land Use Map, and explained the site is compatible with the existing uses. He read several user reviews from "theknot.com", as they relate to the Rockin S Ranch, which complement the venue's views, displayed marketing photos from the Rockin S Ranch website, and pointed out certain structures/equipment on the Rock and Rail 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, CIO ROCK AND RAIL, LLC (COZ20-0004) PAGE 12 facility can be seen in the background of the photos. a He questioned the validity of the noise information collected by CLR-34, reiterated the information from the Noise Analysis done by Behrens and Associates, and in response to Commissioner Moreno, confirmed the temporary, noise barriers are 24 feet tall and outlined the measures they had taken to mitigate noise. IRHe discussed dust on the site, citing zero (0) complaints to the CDPHE, one (1) complaint to the County, and one (1) incident observed by the County, and read a section from the facility's air permit, titled, "Particulate Emissions Control Plan for Material Processing Activities". He reviewed a photo of a dust cloud, presented by CLR-34, and a photo taken from an on -site camera of the same dust cloud, which shows the dust cloud is coming from offsite. He asserted there are no photos of dust in the Indianhead Subdivision and one (1) photo shown by CLR-34 was taken on a Sunday, when the plant was not operating. Mr. Connolly refuted the air quality report written by an Indianhead resident, stated Rock and Rail hired a professional air quality consultant who determined the CAA standards were met, and indicated the applicant is willing to consider additional, reasonable, dust mitigation measures. He noted, after hearing concerns about stormwater at the PC hearing, Rock and Rail took samples, which concluded, "There are no contaminants of concern that could cause adverse environmental or health effects in the soil at the Rock and Rail facility that could potentially leach into the groundwater or stormwater." He countered the argument of property loss values, stating the report submitted by CLR-34 was based on the County's assessed values, not actual sales, and showed the amount of money Rock and Rail had spent on good neighbor measures. He indicated this was the first time he had heard the suggestion of compromising with I-1 (Light Industrial) zoning and a USR, and noted the previous USR was invalidated due to being challenged by CLR-34, and confirmed Rock and Rail is willing to continue dialog with neighbors and mitigate concerns. In response to Commissioner James, Ms. Snyder stated there is an opportunity to add transloading to an I-1 (Light Industrial) Zone District, with a USR permit, and Mr. Connolly added the same would be true for the 1-2 (Medium Industrial) Zone District, but both have screening requirements which the subject site does not meet, on the west side of the facility. He further stated the existing use is a larger indicator of compatibility as dictated by the Weld County Code. Ms. Snyder confirmed health, safety and welfare are considered when determining compatibility, mitigation is used to help achieve compatibility, and confirmed the A (Agricultural) Zone District has a residential noise limit. Ms. Light clarified farming equipment is exempt from the noise limit, which is measured 25 feet off the property line. Mr. Connolly deferred to Andrew Truitt to answer noise -specific questions. Andrew Truitt, Behrens and Associates, discussed the modeling analysis and the ambient survey and in response to Commissioner James, he detailed how they modeled noise for the concrete batch plant operations, only. In response to Commissioner Moreno, Mr. Truitt provided his qualifications/background, described the equipment Behrens and Associates used, and clarified the differences between sound intensity, sound pressure, and psycho acoustics. El In response to Commissioner James, Mr. Choate confirmed the Board's decision on any given Land Use case does not set precedence on future land use cases and explained the current Board is not bound by the decisions of previous Boards. In response to Commissioner Ross, Mr. Connolly confirmed there was a $100,000.00 fund made available to the Indianhead 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 13 neighborhood, and the money was never spent. Ms. Snyder displayed the slide depicting sizes of particulate matter and Mr. Connolly explained the air permitting process, relayed the CDPHE permit sets the limits of what can be emitted from the site, and stated there is not continuous measuring of particulate matter at the site. He confirmed Rock and Rail is open to additional dust mitigation measures, such as increased watering and the additional application of polymer blend suppressant to unpaved areas, and went on to say employees have to be evaluated for respiratory issues, per Rock and Rail's employment obligations, and no issues have been reported. In response to Commissioner Ross, Ms. Snyder explained if the Board desired additional dust mitigation they could provide instruction to staff, but noted anything outside of what is required in the 1-3 (Heavy Industrial) Zone District would be hard to enforce. There was discussion between Commissioners Ross and James about standards of zoning with regards to mitigation and Ms. Snyder cited Code Section 23-2-180 regarding enforcement of SPRs and stated Section 23-2-160 outlines what is required by Code. Mr. Connolly asserted, if direction regarding dust mitigation was added to the Resolution, Rock and Rail would accept that, and in response to Commissioner Ross, he confirmed the CDPHE had not received any dust complaints and reiterated the dust mitigation measures. Commissioner Ross referenced the Draft Resolution, called out nine (9) dust complaints made to Weld County and Ms. Snyder clarified those complaints came in after her staff report indicated the County had not received any complaints. El In response to Commissioner James, Mr. Connolly explained railroads, as a federally permitted use, are not regulated by County Code and confirmed he believes the concrete plant constitutes rail transportation, as it is owned by a railroad company. He reiterated ICCTA defines rail transportation as rail and services related to rail transportation, and asserted, if rezoned, the County would have enforcement jurisdiction over the site's operational limitations. Commissioner James expressed he believed the COZ application meets four (4) of the five (5) criteria outlined in Section 23-2-40.B, with compatibility being the questionable criteria. Mr. Connolly spoke to compatibility and stated he believed the consideration of the railroad is important to the consideration of compatibility. Commissioner James agreed there is market demand for aggregate but noted, while the Comprehensive Plan calls out economic opportunity, it does not say market demand has to be met. Commissioner Ross cited Section 22-2-80.G (l. Goal 7- Recognize the importance of railroad infrastructure to some industrial uses), and stated it implies all impacts have to be considered and Chair Freeman explained the goals of the Comprehensive Plan must be met, and stated the site is close to U.S Highway 34 and rail access, so he believed it was compatible. Commissioner Moreno cited Section 22-2-80.F (l.Goal 6 - Minimize the incompatibilities that occur between industrial uses and surrounding properties), and there was discussion about the need to focus on the COZ application, not the previously approved USR, and ways to minimize the incompatibility with mitigation. In response to Commissioner Ross, Ms. Snyder confirmed the Indianhead Subdivision is zoned A (Agricultural), and he expressed frustration with the Town of Johnstown for turning down the opportunity to annex the subject site, but stating they wanted local control over it. Commissioner James reiterated there is nothing in Code which states Weld County will honor the Town of Johnstown's Comprehensive Plan or their GMA. e Mr. Connolly confirmed Rock and Rail agreed with all the COA, as written. Commissioner Moreno thanked everyone in the room for being there, recalled testimony from the 2015 USR hearing and stated he is leaning toward supporting the COZ. In response to 2020-2126 PL2360 HEARING CERTIFICATION - GERRARD INVESTMENTS, LLC, C/O ROCK AND RAIL, LLC (COZ20-0004) PAGE 14 Chair Freeman, Mr. Connolly indicated they had reviewed, and on behalf of the applicant, agreed to abide by, the Conditions of Approval. Commissioner James cited Code Section 23-2-40.B, stating the Board had heard testimony from both sides, there was no PC recommendation to consider, and reiterated the Board had reviewed all of the facts presented, as well as Planning staff's recommendation for approval. He found that the applicant fulfilled the application requirements outlined in Section 23-2-50, cited Section 23-2-40.B.1, stating he believed the application was consistent with the Comprehensive Plan, and Section 23-2-40.B.2, stating he believed the Uses allowed in the 1-3 (Heavy Industrial) Zone District are compatible with the surrounding land uses. He cited Section 23-2-40.B.3, stating no concerns were expressed by the Department of Public Health and Environment regarding adequate water and sewer services, and Section 23-2-40.B.4, stating the street/road and highway facilitates providing access to the property are adequate in size to meet the requirements of the proposed zone district. He went on to cite Section 23-2-40.6.5, reiterating with Planning staff's assessment that the applicant had demonstrated compliance with applicable standards of overlay zone districts, minerals, soils, and geo hazards, and asserted soil conditions are not prohibitive of a COZ. Commissioner Ross concurred. Commissioner Ross moved to approve the request of Gerrard Investments, LLC, c/o Rock and Rail, LLC, for a Change of Zone, COZ20-0004, from the A (Agricultural) Zone District to the 1-3 (Heavy Industrial) Zone District, based on the testimony given and the findings of Planning staff as previously cited by Commissioner James, with the Conditions of Approval, as entered into the record. The motion was seconded by Commissioner Moreno, and it carried unanimously. There being no further discussion, the hearing was completed at 5:38 p.m. This Certification was approved on the 27th day of July, 2020. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: dettitet) jdez,;(1 Weld County Clerk to the Board BY: Deputy Clerk to the Board Mike Freeman, Chair Steveoreno, Pro-Tem Sc. James EXCUSED arbara Kirk Kevin D. 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