HomeMy WebLinkAbout20191153.tiffHEARING CERTIFICATION
DOCKET NO. 2018-130.B
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT,
USR18-0077, FOR A GREATER THAN 12 -INCH HIGH PRESSURE NATURAL GAS
PIPELINE (36 -INCH NATURAL GAS PIPELINE) APPROXIMATELY 70 MILES IN
LENGTH IN THE A (AGRICULTURAL) ZONE DISTRICT — CHEYENNE CONNECTOR,
LLC
A public hearing was conducted on March 27, 2019, at 10:00 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:
Acting Clerk to the Board, Selena Baltierra
Assistant County Attorney, Bob Choate
Planning Services Department representative, Kim Ogle
The following business was transacted:
la I hereby certify that pursuant to a notice dated October 12, 2019, and duly published
October 17, 2019, in the Greeley Tribune, a public hearing was conducted on December 12, 2018,
to consider the request of Cheyenne Connector, LLC, for a Site Specific Development Plan and
Use by Special Review Permit, USR18-0077, for a greater than 12 -inch high pressure natural gas
pipeline (36 -inch natural gas pipeline) approximately 70 miles in length in the A (Agricultural) Zone
District, at which time the matter was continued to March 27, 2019, to allow Cheyenne Connector,
LLC, adequate time to secure additional right-of-way for the project. Bob Choate, Assistant
County Attorney, made this a matter of record.
la Chair Kirkmeyer stated she understood the applicant was requesting a continuance, and
Commissioner Freeman requested clarification on the applicant's name, Cheyenne Connector,
LLC, dba Tallgrass Energy Partners, LLC (the application applicant) or Cheyenne Connector
Pipeline, Inc. (the condemnation filer). In response, Dick Sears, Vice President of Tallgrass
Energy, explained Cheyenne Connector, LLC, is the applicant for Weld County, as well as the
applicant on the Federal Energy Regulatory Commission (FERC) paperwork. He continued
stating Cheyenne Connector, Inc., is a subsidiary company of the LLC, formed for the purpose of
the condemnations to comply with State Statute. In response to Commissioner Freeman,
Mr. Sears indicated the incorporation (Inc.) was formed in early 2018. In response to Chair
Kirkmeyer, Mr. Sears confirmed Cheyenne Connector, Inc., is the holder of the easements and
will assign the easements to the LLC, as necessary. Commissioner Freeman indicated the
information was provided to him by the County Attorney, Bruce Barker, and Chair Kirkmeyer
reflected on the conversation stating, at the present time, Cheyenne Connector, LLC, had no
easements. Mr. Sears stated at the time of construction Cheyenne Connector, LLC, will have the
land rights from Cheyenne Connector, Inc. Chair Kirkmeyer confirmed with Commissioner
Freeman and indicated, without the easements being transferred from the Inc. to the LLC, there
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is not a complete application. Commissioner Conway concurred with the comments made and
Chair Kirkmeyer reiterated the applicant and easement issue. Mr. Choate stated he did not want
to contradict Mr. Barker and was not familiar with Mr. Barker's analysis of the situation; however,
Mr. Choate agreed Cheyenne Connector, LLC, did not have any easements. In response to
Commissioner Conway, Mr. Ogle stated he was not made aware of the issue until the morning of
the hearing. In response to the Board, Mr. Sears indicated approximately 55% of easements were
in place for Cheyenne Connector, Inc. Mr. Sears discussed the previous hearing, indicated the
applicant had been focused on the pipeline route concern, and stated they have pursued
additional right-of-way (ROW) to obtain the route. He explained they had not reached an
agreement with many of the landowners and had to resort to condemnation. He stated all of the
condemnations had been filed and scheduled for hearing, which should be complete by the end
of April. He mentioned the FERC certificate is also expected in April. Mr. Sears indicated the ROW
and the certificate would be completed by May 8, 2019, and requested that date as a continuance
date.
El Commissioner Freeman stated, to his understanding, the Board previously requested the
easements to be in place with a willing buyer and seller. He expressed his frustration and
Commissioner James further clarified the previously mentioned issue regarding the name of the
applicant.
el Chair Kirkmeyer recessed the hearing to allow for the Board to discuss with staff and the
applicant to discuss with their team.
el Chair Kirkmeyer reconvened the hearing at 11:21 a.m. and clarified the recess was to contact
the County Attorney, Bruce Barker, for advice and clarity on whether a continuance is warranted.
Kim Ogle, Department of Planning Services, stated the Department of Planning Services
received a letter from Shawn Bates, who represented the applicant, requesting a continuance to
obtain additional ROW. He indicated at the time of the letter, there was approximately 54% of the
total private lands and agency ROWs crossed by the pipeline obtained. He reiterated the applicant
is requesting the continuance to May 8, 2019, and in response to Commissioner Conway, clarified
there is no number associated with the number of easements that have been obtained.
Mr. Sears reiterated the request for the continuance and, which would allow them to stay on
schedule, and in response to Commissioner Conway, Mr. Sears stated they would expect to have
90% or more of the ROW obtained by the continuance date requested. In response to
Commissioner Conway, Mr. Sears reiterated when the FERC certificate would be obtained.
Ei Chair Kirkmeyer opened the hearing for public testimony regarding the continuance.
Marvin Bay, surrounding property owner (SPO), expressed concerns with Tallgrass obtaining
the land rights and explained the timeline of working with Tallgrass. He indicated he sends out
emails regularly to other SPOs, and stated he felt the request for the continuance was the
applicant disregarding the farming operations. He explained it does not make sense for the
farmers to plant their crops when Tallgrass plans to go through with the pipeline. He stated
Tallgrass is not willing to pay for the ROW, but is willing to pay for some of the crops they destroy.
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He stressed the issues of working with the applicant and mentioned the condemnations. In
response to Chair Kirkmeyer, Mr. Bay indicated the growing season will be complete sometime
in November, depending on the crops and weather. In response to Commissioner Conway,
Mr. Bay expressed he would be in favor of a continuance if it were after the growing season.
• Greg Cecil, SPO, reviewed the letters he received from Tallgrass and questioned why the
applicant has been able to work with other SPOs in the past, on other projects and not with this
one. He stated non -irrigated land makes a difference, and expressed he does not feel the
applicant has been able, or willing, to understand what the pipeline could do to the irrigated land.
Mr. Cecil indicated there had not been good faith negotiations from the beginning and, in response
to Commissioner Conway, he stated he was neutral concerning whether the continuance should
be approved or not.
Tom Karlberg, SPO, supported the continuance if negotiations are based on voluntary buying
and selling.
Va Les Peterson, SPO, questioned the footage of the pipeline that had been obtained, and
agreed there should be a willing seller and buyer. In response to Commissioner Conway, Mr.
Peterson clarified the question.
• Bruce Johnson, SPO, agreed with Mr. Bay regarding the continuance occurring after the crop
season. He reiterated the applicant has not operated in good faith, compared to the relationships
he has had with other pipeline operators.
IR William Oster, SPO, indicated he was present at the December BOCC hearing and mentioned
he got a condemnation letter about a week later. He stated there were no additional efforts to
work in good faith. He supported Mr. Bay's comments and reiterated sales should be voluntary.
CI Janet Roth, SPO, referenced her submitted letter and stated she felt the continuance is solely
on the basis that there are 54 immediate possessions still pending court dates. She explained
she had spent two (2) days attending the court cases and mentioned, in order for the applicant to
condemn property, it had to be a Colorado corporation and be for a natural gas pipeline, which
was the purpose for Cheyenne Connector, Inc. She stated the issue with her personal agreement
was the applicant would not agree to a natural gas -only pipeline. She further included information
she heard at the immediate possession hearings and agreed the application should be continued
until after the crop season. She provided a timeline of the crop season and explained the risks if
crops are not produced. She mentioned her relationships with other pipeline owners and stressed
farming is their way of life. Ms. Roth stated she would like the applicant to operate entirely as the
LLC, and reiterated the Inc. was made only to condemn the SPOs in court. Additionally, she
requested 95% of the easements be obtained voluntarily, or for the hearing to be continued until
after crop season.
• Marsha Baker, SPO, reiterated the concerns of the Board at the last hearing. She indicated
she received the condemnation letter two (2) days after the December 11, 2018, Board hearing.
She read the letter and explained there were items missing from the letter, which the applicant
and she had discussed. She reiterated the applicant tried to proceed with the hearing in December
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and she agreed with Ms. Roth that the only reason they want to continue until May 8th, is to finish
the condemnation hearings. She reiterated the applicant should not be able to work on their land
until after harvest and stated there should still be some negotiation. She expressed she sees no
value in a continuation unless there are some restrictions.
la Ted Buderus, SPO, agreed the Board should continue the case to November and stated,
historically, pipelines have never been able to cross ditches during irrigation season. He indicated
the ditches run from April 1 thru November 1.
Ms. Roth additionally commented, and stated she spoke to a FERC representative and
reviewed her conversation with him, indicating the Board had to approve the application prior to
the FERC certification. She reiterated the summer crop timeline and stated this matter needs to
wait until after the crop season.
Larry Ehrlich, SPO, stated if a crop is established and the pipeline goes through during the
growing season, the crop insurance becomes null and void. He opposed the proposed
continuance date, and in response to Commissioner Conway, he agreed the continuance should
be after the growing season and any sales should be voluntary. He questioned why the applicant
is confident they can get to 95% of the ROW and stated it is only because it will be obtained
through the courts.
• Chair Kirkmeyer closed public hearing.
• Mr. Sears rebutted and stated there had been a lot of negative comments regarding good
faith negotiations made in public testimony. He provided the applicant's definition of good faith
negotiations and addressed why they will not pay the SPOs as much as other pipeline owners
have paid. He indicated there have been, on average, 19 contacts with each land owner, and
reiterated they have resorted to the courts. He explained their offers were based on third -party,
expert evaluation of comparable lands, and stated he understood it is a big imposition to land
owners. Mr. Sears stated they are doing their best to address the concerns of the SPOs, but are
not always successful. In response to the questions regarding the time of construction, he
indicated the applicant did not choose the timing of the project, rather, it was based on the FERC
approval. He stressed the importance of the May 8th continuance date with their timeline and
reiterated their preferences would be voluntary easement agreements.
In response to Commissioner James, Mr. Sears indicated he understood a continuance is a
courtesy. Commissioner James read Section 22-2-20.B.2, regarding the protection of agriculture
in Weld County. In response, Mr. Sears explained how the applicant is abiding by the Code and
Commissioner James stated his support of the continuance date being after the crop season.
• Commissioner Conway clarified the applicant's testimony regarding FERC regulations, and
Mr. Sears compared the proposed pipeline with pipelines owned by other applicants.
In response to Chair Kirkmeyer regarding crossing agreements with ditch companies,
Shawn Bates, applicant, explained they are procuring 30 crossing agreements, 16 of which are
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in hand and indicated eight (8) of them are not FRICO (Farmers Reservoir and Irrigation
Company) ditches. He further stated there was a scheduled meeting with FRICO to finalize an
agreement. In response to Chair Kirkmeyer, Mr. Bates reiterated they have negotiated 16 of the
30 crossing agreements, and he explained the damages compensation process. In response to
the question asked by a SPO, regarding the length in miles of the pipeline obtained, he stated 39
of the 70 miles of the pipeline have been acquired voluntarily, which is equivalent to 55% of the
pipeline. In response to Chair Kirkmeyer, the applicant explained the company's experience with
prime irrigated farm land.
al Chair Kirkmeyer recessed the hearing for a short break to allow the applicant to consult with
his team.
• Chair Kirkmeyer reconvened the hearing and Adam Schiche, Assistant General Council for
Tallgrass Energy, reiterated the request for the May 8th continuance and indicated they chose a
date later than what they preferred. He questioned the authority of the Board to consider a
November date, which was not proposed by the applicant. Chair Kirkmeyer explained to the
applicant the process in which the Board considers a continuance, and Mr. Schiche reiterated the
importance of the May 8th continuance, to the applicant and the impacted producers. Chair
Kirkmeyer stated, if the Board was to consider a date later than May 8th, the applicant would have
an opportunity to reconsider their request for a continuance.
• In response to Commissioner Conway regarding how the remainder of the pipeline
easements will be obtained, Mr. Schiche mentioned the condemnation process and how the
timeline will depend on whether the applicant can obtain the immediate use of possession. He
further explained the majority of the remaining easements will be obtained through the
condemnation process in the Weld County Court.
• Commissioner James restated the Right to Farm Statement in the Weld County Code, and
suggested continuing the hearing to November 20, 2019, at 10:00 a.m. Commissioner Moreno
agreed to the continuance; and stated, he is not in support of the proposed May 8th date, but will
be in support of a continuance with respect to the farming season.
• Commissioner Conway concurred with the previous statements and explained he would only
support a continuance if it addresses the issues brought forth in public comment. He further
mentioned he understood the applicant has a timeframe, and referenced the easements that have
been obtained since the December hearing. He stated he would support a continuance, with
respect to the surrounding uses.
• Commissioner Freeman stated his hesitations to support the continuance, and indicated he
would continue to listen, but at the time was not in support of the continuance.
ag Chair Kirkmeyer agreed with Commissioner James, and mentioned her background in
farming. She expressed she understood it is not as simple as the applicant paying for damages.
She referenced the Right to Farm Statement and stated whichever action takes place needs to
take into consideration the surface owner's rights and not disrupt the farming or irrigation
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operations. She indicated agreements that include irrigated farm land take a long time, and stated
her experience with pipelines disrupting her farm operations. She expressed her support of a
continuance that provides certainty to all of the SPOs that spoke, and indicated it would need to
occur after May 8, 2019. She added it is in the purview of the Board to continue the case based
on the comments of the applicant.
• After some discussion, Chair Kirkmeyer recessed the hearing.
02- Chair Kirkmeyer reconvened the hearing at 12:43 p.m.
• Mr. Schiche reiterated he believed they had met all seven (7) of the Code criteria to obtain a
Land Use Permit. He referenced the last hearing and mentioned the need for the Board to
understand the pipeline route. He stated, although agriculture is important to the County, so is oil
and gas development. He reitereated the proposed use and expressed frustration with additional
issues the Board did not address in December. He indicated in his opinion, with respect to the
criteria, nothing will change with a May 8th, or November hearing date.
• In response to Mr. Schiches' question asking what the Board feels will change between
May 8 and November dates, Mr. Choate informed the Board it was not necessary for them to
answer the question in order to choose whether or not to grant the continuance. After further
discussion regarding the applicant's option to withdraw the request for the continuance, Chair
Kirkmeyer called a recess for lunch and to allow the applicant time to discuss the continuance
with their team.
O Chair Kirkmeyer reconvened the hearing at 1:36 p.m.
• Mr. Schiche reiterated the request for a continuance for sometime in May if the May 8 date
did not work for the Commissioners. Commissioner Moreno restated he was in support of the
continuance and mentioned he was willing to discuss additional dates after the farming season.
• Commissioner James moved to continue the request of Cheyenne Connector, LLC, for a
Site Specific Development Plan and Use by Special Review Permit, USR18-0077, for a greater
than 12 -inch high pressure natural gas pipeline (36 -inch natural gas pipeline) approximately 70
miles in length in the A (Agricultural) Zone District, to November 20, 2019, to allow adequate time
for the applicant to secure additional right-of-way for the project and to provide some certainty for
the surrounding agricultural community. The motion was seconded by Commissioner Conway,
and it carried unanimously. Commissioner Conway stated, due to the comments made by the
public and all of the factors involving outstanding easements and the agricultural season, it was
appropriate to continue the case to the November date. He stated he was originally not in support
of the motion; however, the public comment convinced him otherwise, and he feels the neighbors
have been understanding with the applicant. Commissioner Freeman reiterated he is not in favor
of a continuance, but if the hearing is continued to after farming season, he will support the motion.
Chair Kirkmeyer stated she supported the motion for the continuance, and referenced the
concerns of the last hearing for the applicant to have all of the easements in place, and doubted
the applicant would be ready with all of their easements by May. She indicated, until all of the
easements are in place, the applicant cannot record their map, therefore, would not be able to
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start construction. She restated the applicant had indicated they are still waiting on the FERC
approval, and are expecting the approval in April. Chair Kirkmeyer stated she had heard a lot of
negative comments, there are numerous conditions required and she reiterated the requirements
of the Board to approve the application. She expressed concern with negotiations not being in
good faith and indicated it is not as simple as paying for damaged crops. She stated, given the
people's Right to Farm, they deserve the certainty to plan out their year, therefore, she supports
the motion for the November continuance. There being no further discussion, the hearing was
completed at 1:47 p.m.
This Certification was approved on the 1st day of April, 2019.
BOARD OF COUNTY COMMISSIONERS
WAD COUNTY, OLORADO
ATTEST: datiwoG.�,�.ato4,Weld County Clek to the Board
BY:
Deputy Clerk t•�he Board Ir � (AYE)
can P. Conway
Barbara Kirk eyer, G(iair
Mike Freeman, Pro -T
(AYE)
(AYE)
APP D AS T� ' M: (` v' ?.' �- �� USED DATE OF APPROVAL (AYE)
tt K. James
County Attorney
Date of signature: &l -1q
Steve Moreno
(AYE)
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