HomeMy WebLinkAbout20194141.tiff HEARING CERTIFICATION
RE: CONSIDER SERVICE PLAN, MET19-0001, FOR REAL WELD METROPOLITAN
DISTRICT
A public hearing was conducted on September 23, 2019, at 9:00 a.m., with the following present:
Commissioner Barbara Kirkmeyer, Chair
Commissioner Mike Freeman, Pro-Tern
Commissioner Sean P. Conway
Commissioner Scott K. James
Commissioner Steve Moreno
Also present:
Clerk to the Board, Esther Gesick
Assistant County Attorney, Bob Choate
Director of Finance and Administration, Don Warden
The following business was transacted:
I hereby certify that pursuant to a notice duly published July 31, 2019, in the Greeley Tribune,
a public hearing was conducted on September 18, 2019, to consider the proposed Service Plan
for the Real Weld Metropolitan District. At said hearing, the matter was continued to
September 23, 2019, to allow the applicant and the County Attorney's Office adequate time to
revise certain provisions within the Service Plan. Bob Choate, Assistant County Attorney, made
this a matter of record. He provided a brief summary of the proposed revisions (Exhibit K),
including: a change to the definition of `Service Area', an update to the actual value of the initial
parcel, a provision requiring consent from the existing water district, a statement that use of public
funds for public improvements must be used solely within Weld County, inclusion/exclusion
limitations requiring 45-days' written notice to the Board of Commissioners, with procedures to
follow if there is any objection, and clarification that Title 32 districts may not overlap unless there
is simultaneous consent for exclusion. (Clerk's Note: the hearing was recessed to allow staff
adequate time to connect a conference telephone. Chair Kirkmeyer called Mr. Robert Lembke to
accommodate his previous request so he could listen to the proceedings and comment, if
necessary.) Upon reconvening, Mr. Choate continued with his summary of the proposed
revisions, including a commitment that the applicant will not serve as a public water provider
without consent from the existing district, and an assurance that the revenue generated from the
mill levy may only be spent for expenses incurred within the metropolitan district boundary within
Weld County. He also referenced the updated comments from the Central Weld County Water
District (CWCWD) requesting six (6) parcels to be excluded (Exhibit I and map emailed by
Mr. Choate), as well as a letter from Kirk Mueller(Exhibit J). Chair Kirkmeyer referenced page 19
of 97, subsection G, which states what the mill levy may be used for, as well as subsection V.a.5,
which limits the mill levy to $25 million for actual costs, noting that certain costs, such as legal
services, may originate outside of Weld County.
Diane Miller, Miller and Associates Law Offices, represented the applicant and reviewed a
PowerPoint presentation to reiterate the proposed revisions (Exhibit H). ElMs. Miller
referenced the current state of the law expressed in the Court of Appeals case #2018COA134,
concerning consent of mineral interest lessees, and the finding that mineral interests are
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temporary/short-term and very difficult to track and determine all of the mineral interest owners.
she further stated the court ruled that the mineral interests are not entitled to notice because they
are not capable of being served by the district and the taxes generated are intended to serve the
general public. Ms. Miller stated she received an email this morning indicating the Supreme Court
will hear the matter and decide at some point as to whether a mineral interest owner must consent
for inclusion into a special district. However, for the purposes of this hearing, she asserted the
Commissioners must consider the law as of today. She addressed the issue of overlapping
Title 32 services and stated excluding the six (6) identified parcels will satisfy the concern. In
response to Commissioner Conway, Ms. Miller reiterated the applicant is not opposed to
excluding the six identified properties.
Kirk Mueller, Attorney for High Point Energy Resources and Bonanza Creek Energy, Inc.,
stated he received the redline revisions (Exhibit K) earlier today, as well as the notice that the
Supreme Court has decided to take up the case. He stated, as of today, the mineral interests can
be included without allowances for comments and/or objections, but a final determination from
the Court is still pending, therefore, this may potentially be his only chance to comment on the
Service Plan. Mr. Mueller stated, if the Service Plan is approved and the Commissioners receive
notice of a future inclusion, his clients would request the ability to propose further revisions to the
Service Plan. He addressed the definition of 'Service Area' and suggested the references to the
inclusion area and service map be amended to provide further detail to make it clear where the
services will be provided, noting the services will not be located on 70 Ranch. Mr. Mueller
referenced paragraph V.A.4, which indicates if the County receives notice of an inclusion request,
and the Board objects, then a hearing would be scheduled to allow public input; however, if there
is no objection by the County, then the public is not afforded the opportunity to comment or present
their viewpoint. He also cited paragraph V.B and stated the Primary Infrastructure Plan needs to
be expanded to also allow the opportunity for objection by the Board, because once the district is
created, there is no further oversight.
In response to Commissioner Conway, Mr. Mueller stated the Service Plan needs to provide
specific details, which would be reviewed if substantial modifications are made. Chair Kirkmeyer
suggested removing the phrase, "service area within the area inclusion boundary map".
Bruce Barker, County Attorney, stated the inclusion area is required to be identified as part of the
Model Service Plan and this proposal does meet the Code. He further stated it is typical for
service areas to extend beyond the district boundaries, reiterated any expansion would require
notice to the Board, and clarified that identifying an area in the service area does not imply
automatic inclusion in the future. Responding to Chair Kirkmeyer, Mr. Barker reviewed the
statutory publication requirements and clarified any future material modification would be required
to go through the same process and provide an opportunity for public hearings and possible
modifications to the Service Plan.
El In response to Chair Kirkmeyer, Mr. Mueller also expressed concern with the high mill levy
and potential for overlapping water service. Chair Kirkmeyer referenced page 16 of the
application which indicates there will be no overlapping districts. She also stated the total debt
limitation is $25 million, which can only be spent on district operating costs. Mr. Barker proposed
the addition of the following language: "If within 45 days of receipt of such notice the BOCC
provides the District with written objection to the proposed public improvements, then the
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proposed public improvements shall be considered a material modification and the Service Plan
shall be resolved in accordance with C.R.S. §31-1-207(2)." He noted the language is the same
as the Exclusion/Inclusion sections. Mr. Mueller stated his clients are not as concerned about the
inclusion area as described by Mr. Barker; however, they are still concerned with the potential
service area, since the proposed use will not be servicing 70 Ranch.
Kathy Naibauer, representative for the CWCWD, identified six (6) parcels which are currently
in the service area for the CWCWD, and have been since 1965 and 1966. She requested
additional time for their attorney to review the redline version (Exhibit K). She confirmed the
CWCWD is willing to exclude the six parcels identified (Exhibit I) and reiterated their request for
an opportunity to review any future inclusion plans, in detail, prior to consent to exclusion or
entering into a separate agreement allowing the applicant to proceed with their project.
In response to Commissioner Freeman, Ms. Miller agreed the new language does cover the
ability to review and comment and does not allow for overlapping. She reiterated there would be
no request for inclusion within the boundary of the CWCWD until they had an opportunity to review
the proposal. There being no further testimony, Chair Kirkmeyer closed the public input portion
of the hearing.
Ms. Miller stated Title 32 has provisions which allow the local governmental jurisdiction to
request a review at any time, they also have a quinquennial review of the financial aspect, and
there is a 45-days' notice requirement for inclusions. Responding to Commissioner Conway,
Ms. Miller reiterated the applicant agrees with the request from the CWCWD to exclude the six (6)
identified parcels. Commissioner James referenced paragraph IX.A which still addresses sharing
funding of facilities, and Ms. Miller stated the language is strong enough to prohibit any sharing
unless the Board of Commissioners grants consent. She reiterated the funding of all public facility
expenses will remain in Weld County. Chair Kirkmeyer suggested the last sentence needs to add
"in Weld County"to eliminate any confusion. Ms. Miller clarified if the district provides notice of
inclusion and the County offers an objection, then the entire plan is open for review in a public
hearing; however, if there is no objection, then the provisions would remain as-is. Regarding
eminent domain, Ms. Miller explained Special Districts in Colorado do have eminent domain
authority regarding the ability to install water/sewer lines within the County right-of-way and
Chair Kirkmeyer expressed concern with that. Ms. Miller agreed to add language to paragraph
V.A.9 to state, "The District shall not utilize the power of eminent domain against Weld County."
Ronald Von Lembke, Real Weld Chairman, thanked the Commissioners and staff for their
review of the application and appreciation of his vision for the future.
In response to Chair Kirkmeyer, Mr. Barker stated in order to exclude the six (6) parcels
requested by the CWCWD, the applicant will need to provide a new map(Exhibit C-2). Mr. Choate
stated the provisions under Section 4 of the Resolution have been met and can be deleted, and
Ms. Miller concurred. Chair Kirkmeyer proposed a new Section 4.A, which states the applicant
shall submit a revised map (Exhibit C-2) demonstrating the exclusion of the six (6) parcels from
the inclusion area, as identified by the CWCWD. She also referenced paragraph V.B of the
Revised Service Plan, which will be modified to require 45-days' written notice for any petition for
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inclusion, as well as adding to paragraph #V.A.9 clarifying that no eminent domain shall be
exercised against Weld County. Lastly, the last sentence of paragraph #IX.A will be modified to
add "in Weld County." The Board directed staff that any time the County receives notice of a
request for inclusion, a representative for High Point Energy Resources and Bonanza Creek
Energy, Inc., will also be notified.
No further testimony was offered concerning the changes to the Service Plan or Conditions
of Approval.
Chair Kirkmeyer commented there has been dramatic growth in southern Weld County and
there is a need for this type of service. She also stated, although the County can request that a
special district provide periodic updates, there are a lot of special districts in the County and they
do not have the resources to track them all individually; therefore, the 45-days' notice for
substantial changes to the plan will allow a "good neighbor" opportunity for review.
fi Commissioner Conway moved to approve the Service Plan for the Real Weld Metropolitan
District, as amended. Commissioner James seconded the motion. Commissioner Conway
expressed his appreciation to the public for raising their concerns and he agreed that 20-30 years
from now this will be a special facility serving the youth of Weld County. The motion carried
unanimously. Ms. Miller requested an expedited signature of the Resolution, which must be filed
with the Court tomorrow, and she also requested a letter from the County Attorney acknowledging
when all the conditions have been met.
There being no further discussion, the hearing was completed at 11:47 a.m.
This Certification was approved on the 30th day of September, 2019.
BOARD OF COUNTY COMMISSIONERS
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WELD COUNTY, CO ORADO
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