HomeMy WebLinkAbout20182603.tiffAt to
LINT), OTTFNHOFF
& ROOT LIT
rneys at Law
355 Eastman Park Dr., Ste. 200 • Windsor, CO 80550
Telephone: (970) 674-9888 ' Fax: (970) 674-9535
Email: john@lorlegal.com
Weld County Commissioners
1150 O Street
PO Box 758
Greeley, CO 80631
Bob Choate
Assistant County Attorney
915 10th Street, Greeley, CO 80631
August 13, 2019
Via US Mail Only
Kenneth F. Lind
George H. Ottenhoff
John D. Root
Chrysten S. Hinze
David S. Anderson
RECEIVED
79
WELD COUNTY
COMMISSIONERS
Via US Mail and email to bchoate@weldgov.com
RE: USR 17-0043 / Request to Hold Permitting Requirements and Conditions in
Abeyance Pending Remand
Dear Commissioners and Mr. Choate:
This firm represents the applicants, Cactus Hill Ranch Company (Cactus Hill) and
Simon Contractors, Inc. (Simon Contractors), with respect to the above referenced USR 17-
0043. This letter is to respectfully request that all permitting conditions and requirements
be held in abeyance pending remand proceedings before the Board of County Commissioners
(the Board) on USR 17-0043 as ordered by the court in the attached orders.
As you will recall, the Board approved USR 17-0043 on February 5, 2018. The Water
Supply and Storage Company (WSSC) and K&M Company, LLLP appealed to the Weld County
District Court, and the District Court entered its decision on that appeal on November 29,
2018 as amended on January 23, 2019. (Copies of orders enclosed).
Those orders remanded USR 17-0043 to the Board for further proceedings on two (2)
issues: (1) additional public comment is required on the changes to the drainage plan
(November 29, 2018 order, at pp. 9-10); and (2) for further findings on the Operational
Standard "that the use 'shall not emit heat so as to raise the temperature of the air more than
five degrees (5°) Fahrenheit at or beyond the LOT line.' WCC §23-2-250(E)" (November 29,
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Weld County Commissioners and Mr. Choate
August 13, 2019
Page 2
2018 order, at p. 11). Please recall that Court's January 23, 2019 order amended its
November 29, 2018 order to delete any references to the Board making determinations
concerning property ownership of the land underlying the canal strip.
Cactus Hill and Simon Contractors engaged in negotiations with WSSC to secure an
agreement for a crossing, including four (4) days of mediation with retired Colorado
Supreme Court Justice Gregg Hobbs. Notwithstanding Cactus Hill and Simon Contractors'
efforts to reach an agreement with WSSC, no agreement concerning a crossing has been
reached. As a result, Cactus Hill Ranch Company and Simon Contractors' declaratory
judgment action against WSSC related to its refusal to consent to a crossing for drainage will
proceed to trial on September 23, 2019 on two (2) claims: The first claim is a claim for a
court order requiring WSSC to allow Cactus Hill and Simon Contractors to restore the natural
drainage consistent with its common law natural drainage easement. The second claim is to
privately condemn a right of way for drainage as permitted under Colo. Const. Art. XVI, §7
and its companion statute C.R.S. §38-2-103. Those provisions of the Colorado Constitution
and Colorado Revised Statutes provide that if the owner of a parcel of land desires to
construct a drain for the purpose of carrying off surplus water and cannot reach agreement
with the parties who owns the land below (in this case WSSC), then private eminent domain
proceedings maybe had to obtain a right of way for that purpose.
The assistant county attorney, Bob Choate, and the undersigned have agreed that
remand proceedings before the Board would best occur after the conclusion of the foregoing
litigation.
Because the court orders on the appeal from the Board's approval of USR 17-0043
require further proceedings before the Board, it is unclear whether compliance with
deadlines for permits and conditions under USR 17-0043 is required. A non-exclusive list
of those permits and conditions is as follows:
• Road Maintenance Agreement - Rec. No. 4445041, requiring off -site roadway
improvements to be completed by October 31, 2019.
• Weld County Access Permit - A permanent one was issued with USR 17-0043.
• Weld County Grading Permit - GRD18-0021, set to expire October 11, 2019.
• Condition of Approval 1G, as amended by the Board on October 22, 2018
Although Simon Contractors and Cactus Hill have been diligent in pursuit of these
matters, the pending remand and the pending declaratory judgment action ought to be
completed prior to the commencement of roadway and site improvements. It does not make
Weld County Commissioners and Mr. Choate
August 13, 2019
Page 3
economic sense for Simon to proceed with improvements until the declaratory judgment
case has been tried and the remand proceedings before the Board held.
This letter is to request that the foregoing, along with any other conditions or permits
required by USR 17-0043 be held in abeyance until an appropriate period of time after
remand proceedings on USR 17-0043 are completed.
Sincerely,
LIND OT
oh'•R
Counsel for Applicants Cactus Hill Ranch Company and
Simon Contractors, Inc.
ROOT, LLP
Enclosures: November 29, 2018 Order
January 23, 2019 Order
Electronic Copy: Kim Ogle, Elizabeth Relford, Dawn Anderson, Jay McDonald, Tom
Parko, Jr.
ISTRICT COURT, WELD COUNTY, COLORADO
901 9t" Avenue, P.O. Box 2038, Greeley, CO 80632
(970) 475-2400 DATE FILED:
CASE NUNIBER:
November 29, 2018 10:17 AM
20180 /30196
Plaintiffs: K&M COMPANY, LLLP, a Colorado Limited
Liability Limited Partnership, THOMAS MOORE, and THE
WATER SUPPLY & STORAGE COMPANY, a Colorado
nonprofit corporation,
v.
A COURT USE ONLY •
Defendants: BOARD OF COUNTY COMMISSIONERS OF
WELD COUNTY, COLORADO (including all of the
Case No.
individual Commissioners in their official capacities: Chair
2018CV30196
Steven Moreno, Pro -Tern Barbara Kirkmeyer, Sean Conway,
Michael Freeman, and Julie Cozad); CACTUS HILL RANCH
Division 5
COMPANY, a Colorado Corporation; and SIMON
CONTRACTORS, INC., a Wyoming Corporation.
ORDER ON THE PLAINTIFFS' APPEAL PURSUANT TO C.R.C.P 106(a)(4)
OF THE BOARD OF COUNTY COMMISSIONERS' OF WELD COUNTY
DECISION TO GRANT USE BY SPECIAL REVIEW
The Plaintiffs appeal the Board of County Commissioners of Weld County decision to
grant a Use by Special Review Application, which would allow the development and operation of
an asphalt batch plant. Under C.R.C.P. 106(a)(4), the question the Court must determine is whether
the Board of County Commissioners acted without jurisdiction or abused its discretion.
BACKGROUND
On February 5, 2018 the Board of County Commissioners of Weld County (the "Board")
granted a Use by Special Review ("USR") permit 17-0043 for the operation of an asphalt batch
plant. Defendant Cactus Hill Ranch Company ("Cactus Hill") is the owner of the property.
Defendant Simon Contractors Incorporated ("Simon") is the operator of the plant. Plaintiff Water
Supply & Service Company ("WSSC") is the owner and operator of the Larimer County Canal
(the "Canal") which abuts the southern boundary of the property. Plaintiff K&M Company LLLP
and its managing member, Plaintiff Thomas Moore (collectively "K&M"), are shareholders of
WSSC and own property abutting the eastern boundary of the USR permit site.
Relevant also, there is a potential dispute as to the ownership of the property underlying
the Canal (the "Canal Strip"). The Plaintiffs maintain that the Colorado State Land Board (the
"Colorado SLB") is the proper owner not Cactus Hill.
STANDARD OF REVIEW
C.R.C.P. 106(a)(4) provides for judicial review of a decision of any governmental body or
any lower judicial body exercising judicial or quasi-judicial functions to determine whether the
body exceeded its jurisdiction or abused its discretion. Bd. of Cty. Comm 'rs v. O'Dell, 920 P.2d
48, 49 (Colo. 1996); Rangeview, LLC v. City of Aurora, 2016 COA 108, ¶ 15. The party
challenging the administrative actions bears the burden of overcoming this presumption of validity.
City & County of Denver v. Bd. of Adjustment, 55 P.3d 252, 254 (Colo. App. 2002). The court is
not permitted to weigh the evidence or substitute its own judgment for that of the governmental
body or officer exercising judicial or quasi-judicial functions. Kruse v. Town of Castle Rock, 192
P.3d 591, 601 (Colo. App. 2008).
A governmental body abuses its discretion if its decision is not reasonably supported by
competent evidence in the record, or if the governmental body has misconstrued or misapplied the
applicable law. Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm 'rs, 2012 COA 190, ¶ 39. Lack of
competent evidence occurs when the record is so devoid of evidentiary support for the decision
that it can only be explained as an arbitrary and capricious exercise of authority. Freedom Colo.
Info., Inc. v. El Paso Cnty. Sherriff's Dep't, 196 P.3d 892, 900 (Colo. 2008). "An action by an
administrative [body] is not arbitrary or an abuse of discretion when the reasonableness of the
[body's] action is open to a fair difference of opinion, or when there is room for more than one
opinion." Khelik v. City & Cty. of Denver, 2016 COA 55, ¶ 13.
"Although administrative proceedings need not strictly comply with the rules of procedure
and evidence, Monte Vista Profl Bldg., Inc. v. City of Monte Vista, 531 P.2d 400 (1975), the
principle of fundamental fairness must be observed in zoning proceedings." Canyon Area
Residents for the Environment v. Board of County Commissioners Jefferson County, 172 P.3d 905,
908 (Colo. App. 2006). The denial of due process by an agency in its exercise of quasi-judicial
functions may serve as the basis for a determination under C.R.C.P. 106(a)(4) that the agency
abused its discretion. See Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo. App. 1990).
ANALYSIS
The arguments presented by the Plaintiffs in their Opening Briefs relate to the two methods
for judicial review to overturn the Board's decision pursuant to C.R.C.P. 106(a)(4), specifically
that it exceeded its jurisdiction or abused its discretion. Based on jurisdictional grounds Plaintiff
K&M argues that the Board lacked jurisdiction to consider the application and Plaintiff WSSC
argues that the Board made findings regarding compatibility which were outside the scope of the
Board's jurisdiction.
On abuse of discretion grounds, both Plaintiffs argue that the Board abused its discretion
and denied their due process by allowing the Applicants to make substantial changes to their
proposal after public testimony was closed. In addition, Plaintiff K&M argues that the Board
abused its discretion by not making necessary findings required by the WCC. Similarly, Plaintiff
K&M argues that the Board abused its discretion with respect to findings related to stormwater
release. Finally, Plaintiff K&M argues that there is no competent evidence that the application is
"compatible" with surrounding and future uses.
I. Jurisdiction
a. Did the Board Lack Jurisdiction to Consider of the Application?
Under the WCC, one of the duties of the Board regarding an application for Use by Special
Review is to "[g]ive notice of the application for a Special Use Permit and the public hearing date
to those persons listed in the application as owners of property located within five hundred (500)
feet of the parcel under consideration." WCC §23-2-230.A.3. However, the WCC also states:
"Inadvertent errors by the applicant in supplying such list or the Board of County Commissioners
in sending such notice shall not create a jurisdictional defect in the hearing process, even if such
error results in the failure of a surrounding property owner to receive such notification." Id.
It is alleged by Plaintiff K&M that the Board had no jurisdiction to consider the application,
because the failure to notify the Colorado State Land Board (which the Plaintiffs argue is the fee
owner of the property underlying the Canal) was not an inadvertent error. Whether or not the
Colorado SLB is the fee owner of the property is an ongoing issue of contention between the
parties as evidenced by the current Weld County case, 2018CV30402. That case is addressing the
same issue, that is, who is the fee owner of the property underlying the Canal. It is undisputed that
the Plaintiffs did not raise this issue during the Board's review.
Defendants Weld County, Cactus Ranch and Simon Contractors argue that since the
Plaintiffs did not raise this issue previously, they are barred from doing so now. Moreover, the
Defendants argue that this Court must only rely on the evidence that is in the record and any
evidence of the Colorado SLB is the fee owner or was not provided notice is not in the record.
The Defendants further argue that any possible error on this issue was inadvertent and should not
overturn the Board's findings.
The Court agrees with the Defendants that under C.R.C.P. 106(a)(4) a court is bound in
considering only the record and must refuse additional evidence. See Dillon Companies, Inc. v.
City of Boulder, 515 P.2d 627, 630 (Colo. 1973). However, the Court also agrees with the
Plaintiffs that jurisdictional issues are separate than those of issues of the merits of the record for
review under an abuse of discretion standard. There is a procedural distinction between
jurisdiction issues and abuse of discretion issues. Jurisdiction, in this sense, looks at whether a
court, or in this case the Board, has "power to hear a case or enter a judgment, it is an issue that
may be raised at any time, even after a verdict [or ruling] has been entered." Currier v. Sutherland,
218 P.3d 709, 714 (Colo. 2009). Moreover, a court's lack of jurisdiction over the subject matter
may not be waived and "can be raised at any time in a proceeding, including for the first time on
appeal." People v. Sandoval, 2016 COA 57, ¶ 47. Therefore, the Plaintiffs did not waive this claim
by not raising it prior to this proceeding and this Court would not be violating the record by
addressing such arguments.
However, the Court agrees with the Defendants that any error, if any does exist, was
inadvertent and should not be grounds to overturn the Board's findings. The record shows that
surrounding property owners were provided sufficient notice to make any lack of notice if in fact
the Colorado SLB is the fee owner of the property underlying the Canal, inadvertent. Letters were
mailed to properties within 500 feet of the land in question, notice was published in the newspaper
and multiple open house proceedings were held.
"Notice by publication is the law's substitution for personal notice." People, for Use of
Sch. Dist. No. 6, Conejos Cty. v. Schaeffer, 100 Colo. 70, 74, 65 P.2d 699, 701 (1937). If done
properly it provides constructive notice to interested parties. Id. The Plaintiffs argue that it was
not inadvertent that the Colorado SLB was not on the Applicants' list of property owners within
500 feet. However, if the Colorado SLB is the proper owner of the property and should have been
on the list provided by the applicants, proper notice was provided to them nonetheless. Therefore,
there is competent evidence that the Board did not exceed its jurisdiction by not providing notice
to property owners located within 500 feet of the property. I
b. Were there Findings by the Board Regarding Compatibility Beyond the Jurisdiction
of the Board?
Plaintiff WSSC argues that the in finding that "[t]he Applicant owns most of the
surrounding properties" and the approval of the installation of pipeline structures through the Canal
is beyond the Board's jurisdiction. Their argument is based on the assertion that the Colorado
SBL owns the Canal Strip and not any of the Applicants.
In its Opening Brief Plaintiff WSSC argues that this is beyond the scope of the Board's
jurisdiction, however in its Reply it argues that these findings were an abuse of discretion. By
Plaintiff WSSC's own admission there is nothing in the certified record regarding who the proper
owner is of the disputed property and these arguments were not brought up previously. Under
C.R.C.P. 106(a)(4) the Court is bound to consider only the record and must refuse additional
evidence. Dillon Companies, Inc., at 630. Therefore, this Court cannot look at this argument for
an abuse of discretion by the Board. However, the question can still be analyzed that if the
Colorado SLB is the proper owner of the Canal Strip, would the Board's findings be outside their
jurisdiction. The Court agrees with Plaintiff WSSC that if in fact the Colorado SLB is the fee
owner of the Canal Strip the Board would have exceeded its jurisdiction in approving the structures
through the Canal. The WCC states that for an application for a USR there needs to be signatures
of the applicant and "fee owner or their authorized legal agent." WCC § 23-2-50.8. If in fact the
1 This conclusion is not a determination that the Colorado SLB is the fee owner of the property underlying the Canal,
it only is a conclusion that regardless of who is the proper owner, notice was sufficient, and the Board satisfied their
duty under the WCC.
Colorado SLB is the proper owner of the Canal Strip, their signature is missing from the
application. Therefore, without their signature and if they are the fee owner, the findings of the
Board would exceed its jurisdiction. Accordingly, this matter must be remanded to the Board with
directions the Board for more findings as to if the Colorado SLB is a fee owner of the Canal Strip.
II. Abuse of Discretion
a. Did the Board Abuse its Discretion and Deny Due Process of the Plaintiff's by
Allowing the Applicants to Make Changes to their Proposal After Public Testimony
was Closed?
When, as here, an agency acts in a quasi-judicial capacity, procedural due process requires
that the agency give notice and afford an opportunity for a meaningful hearing to affected
individuals. Canyon Area Residents for the Env't v. Bd. of Cty. Comm'rs of Jefferson Cty., 172
P.3d 905, 907 (Colo. App. 2006), as modified on denial of reh'g (Nov. 9, 2006). Similarly,
"[a]lthough administrative proceedings need not strictly comply with the rules of procedure and
evidence, Monte Vista Profl Bldg., Inc. v. City of Monte Vista, 35 Colo.App. 235, 531 P.2d 400
(1975), the principle of fundamental fairness must be observed in zoning proceedings." Nat'l
Heritage, Inc. v. Pritza, 728 P.2d 737 (Colo.App.1986); City of Monte Vista, supra. "[T]he hearing
process must be conducted in an atmosphere evidencing fairness in the adjudication of matters
before [a board]." Sclavenitis v. City of Cherry Hills Vill. Bd. of Adjustment & Appeals, 751 P.2d
661, 663 (Colo. App. 1988). Furthermore, denial of due process by an agency in its exercise of
quasi-judicial functions may serve as the basis for a determination under C.R.C.P. 106(a)(4) that
the agency abused its discretion. See Carpenter v. Civil Service Commission, 813 P.2d 773 (Colo.
App. 1990).
Procedural due process requires that a governmental body follow fundamentally fair
procedures when it threatens an individual with deprivation of liberty or property. U.S. Const.
amend. XIV; Colo. Const. art. II, § 25; Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976); deKoevend v. Bd. of Educ. 688 P.2d 219, 227 (Colo.1984) (the essence of due
process is basic fairness in procedure). At a minimum, procedural due process requires notice and
the opportunity for a meaningful hearing before an impartial tribunal. Van Sickle v. Boyes, 797
P.2d 1267, 1273-74 (Colo.1990). If a quasi-judicial determination depends on the resolution of
factual issues, procedural due process requires a hearing where "the parties [are] apprised of all
the evidence to be submitted and considered, and that they [are] afforded a reasonable opportunity
in which to confront adverse witnesses and to present evidence and argument in support of their
position." Hendricks v. Indus. Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App.1990).
The Plaintiffs argue that throughout the USR hearing process there were concerns raised
by the Plaintiffs regarding the impact of runoff from the proposed asphalt plant into the adjacent
canal. The Plaintiffs argue that after the close of public testimony the Applicants made substantial
changes to their application and final drainage report. The Plaintiffs claim that since they were
not given an opportunity after these changes to address this plan through a public hearing they
were denied due process. Further, Plaintiff K&M requested that comment be reopened at least to
new items, however the Board refused. The Plaintiffs, mostly relying on Canyon Area Residents
for the Environment v. Board of County Comm 'rs of Jefferson County, 172 P.3d 905, 908 (Colo.
App. 2006), argue that the Board abused its discretion when it approved an Application that had
been substantially changed without giving the Plaintiffs an opportunity to be heard. This alleged
abuse of discretion is argued as a deprivation of due process that the Plaintiffs were entitled to.
The Defendants argue that any changes made were not substantial, thus not requiring
further comment from Plaintiffs. In addition, the Defendants argue that the changes which were
made only were related to the concerns made by the Plaintiffs and the changes make any concern
the Plaintiffs had, moot. Moreover, the Defendants argue that if there is an error, the error is
harmless.
Starting with the Canyon Area Residents case, Jefferson County had a land use regulation
which prohibited substantial changes to a Planned Unit Development (PUD) application later than
twenty-one (21) days prior to the public hearing, and yet Jefferson County had allowed changes
after the hearing was closed. Further, the Colorado Supreme Court concluded that the proposed
changes were not minor, but in fact were substantial changes, "regarding: (1) the number of
antennas, (2) the overall dimensions of the tower, (3) the maximum antenna width, (4) the location
of ground -mounted antennas, (5) the maximum width of the tower legs, and (6) the fact that
antenna stacking would be allowed." Id. at 908. In the court's opinion they highlighted additional
changes which they did not put in numerical list order. The court held that "the public was not
reasonably informed of the project specifications, as required by [the] zoning resolution". Id. The
court relied on a Connecticut Supreme Court case which held that it is improper for a zoning board
to consider new evidence or facts after the close of public testimony, because it does not permit
adequate public review. Id. citing (Pizzola v. Planning & Zoning Comm'n, 167 Conn. 202, 355
A.2d 21 (1974).
This Court finds that the changes made to the Application were in fact substantial and it
was an abuse of the Board's discretion in not allowing further public comment. Contrary to what
the Defendants have argued a complete change in the drainage plan is not an unsubstantial change.
The Canyon Area Residents Court articulated that the consideration of "new evidence or facts after
the close of public testimony" without out public comment is improper. Id. Clearly, a new drainage
plan is new evidence or facts and by not allowing additional comment is an abuse of discretion.
Defendant Weld County argues that in this case there is no statute or code, like in the
Canyon Area Residents, case which requires no changes to be made to an application after a certain
time. The Court finds that Canyon Area Residents' holding is not as narrowly constrained as the
Defendant Weld County argues. The Canyon Area Residents' court based its holding on a
Connecticut Supreme Court case which did not have such a statute or code present.
Therefore, the Board abused its discretion by denying due process owned to the Plaintiffs
when it allowed the Applicants to make substantial changes after the close of public comments
without allowing addition comments. Accordingly, this matter must be remanded to the Board
with directions to allow additional public comments on the new drainage plan.
b. Did the Board Abuse its Discretion by Failing to Make Necessary Findings
Required by the WCC?
Pursuant to WCC §23-2-230.B, the Board may approve a request for a Special Review
Permit "only if it finds that the applicant has met the standards or conditions of this Subsection B
and Sections 23-2-240 and 23-2-250." Subsection 13 lists seven specific items that the Applicant
must demonstrate and which the Board must find have been satisfied. WCC §23-2-240 lists
"design standards" and WCC §23-2-250 lists "operation standards".
Plaintiff K&M does recognize that the Board made findings regarding factors expressed in
WCC § 23-2-230.B1 through 7. However, Plaintiff K&M argues that the Board's resolution did
not make specific factual findings related to the Design Standards and Operations Standards.
"Generally, express factual findings are not a prerequisite to a valid decision by an
administrative board if the necessary findings may be implied from the action taken." Canyon Area
Residents for the Env't v. Bd. of Cty. Comm'rs of Jefferson Cty., 172 P.3d 905, 909 (Colo. App.
2006), as modified on denial of reh'g (Nov. 9, 2006). Additionally, the standard under a 106(a)(4)
review in this regard is whether, in considering the whole record, the agency's ultimate findings
are supported by any competent evidence. Cooper v. Civil Serv. Comm'n of City & Cry. of Denver,
43 Colo. App. 258, 262, 604 P.2d 1186, 1189 (1979). Moreover, if an agency makes findings on
which the ultimate implicit finding can be grounded, a Court need not reverse or remand for
additional findings. Id. The Board made a detailed record relating to the Design Standards and the
Operational Standards yet there was no expressed finding that the Applicants satisfied the required
standards. While this Court is allowed to look at the ultimate findings based upon the record to
imply a valid decision the Court is still bound by a standard which requires competent evidence to
support a decision. Giuliani, at ¶ 39.
Under the required Operational Standards required for approval one of the requirements is
that the use "shall not emit heat so as to raise the temperature of the air more than five degrees (5°)
Fahrenheit at or beyond the LOT line." WCC § 23-2-250(E). The record shows and as admitted
by Defendant Weld County that temperature was not addressed during the public hearing, nor by
any party. This Court cannot determine the ultimate findings by the Board imply compliance with
the necessary Operational Standards when no competent evidence was presented on a required
issue. Therefore, the Court finds that there was no competent evidence that the Board made the
necessary findings required by the WCC for the Operational Standards. The matter is remanded
for additional findings that the Application meets the Operational Standards required under the
WCC.
c. Did the Board Abuse It's Discretion with Respect to its Findings Related to
Stormwater Release?
Plaintiff K&M argues that the Board abused its discretion with respect to its findings
related to stormwater release. Their argument is based their claim that (1) there is no competent
evidence in the record that Applicants will have permission to port water over the canal, (2)
because there is no competent evidence in the record that even with permission such efforts will
not interfere with the operation of the canal, and (3) because the Board approved a resolution that
lets Applicants bypass WSSC's rights.
(1) Permission to Port Water Over the Canal
Plaintiff K&M's first argument concerning the Board's findings related to stormwater
release is that there is no competent evidence in the record that the Applicants will have permission
to port water over the canal. This argument is first based on the assertion that the Applicants do
not own the Canal Strip and therefore cannot unilaterally construct anything over or under the
canal without the landowner's permission. Plaintiff K&M's assertion is based upon evidence that
is not in the record, and information that was not available at the time the Board granted the USR
permit. For review of an abuse of discretion this Court is not allowed to review evidence outside
the record. See Dillion Companies, Inc., at 630. Therefore, the Court will not determine that there
was or was not competent evidence in the record to support the Board's decision that the
Applicants will have permission to port water over the canal.
(2) Interference with the Canal and Functionality of the Plan
Plaintiff K&M next argues that the Board's Resolution does contain any finding that the
Applicants plan will not impact the Canal. However, as pointed out by Defendant Weld County
the Board made findings that the Applicant's Drainage Plan will not deposit any stormwater into
the adjacent drainage ditch and that the Applicant worked with surrounding property owners to
ensure no drainage would run into the ditch. Moreover, expressed factual findings are not a
prerequisite to a valid decision by an administrative board if the necessary findings may be implied
from the action taken. Canyon Area Residents, at 909. If, as Plaintiff K&M argues, there needs to
be expressed findings that the Drainage Plan would not interfere with the Canal, the Boards
ultimate findings based on competent evidence have implied that. Therefore, the Board did not
abuse its discretion relating to the impact on the Canal from stormwater release.
Additionally, Plaintiff K&M argues that the Resolution does not contain any findings that
the Applicants' plan will work or is feasible. The Court, for similar reasons as expressed above,
is not persuaded by the Plaintiff's argument. The Court finds that there is ample competent
evidence in the record showing that the Board found that the Applicants would be able to construct
the necessary stormwater facilities. There was no abuse of discretion concerning the feasibility of
the plan.
(3) Board's Resolution and WSSC Rights
Plaintiff K&M's last argument relating to stormwater drainage is that the Board's
resolution did not address how or whether the plan to pump water under the canal can be
implemented in light of WSSC's easement rights.
"[W]hile burdened estate owners have a qualified right to cross, and take equipment across,
a benefitted estate owner's ditch, they cannot damage the ditch or unreasonably inhibit the
benefitted estate owner's ability to maintain the ditch." Roaring Fork Club, L.P. v. St. Jude's Co.,
36 P.3d 1229, 1232 (Colo. 2001). Plaintiff K&M argue that the Board made no findings under
this legal standard. The Court respectfully disagrees as the record shows that the Board found that
the Drainage Plan would not deposit into the Canal and ample evidence was provided to allow the
Board to determine if the plan would unreasonably inhibit WSSC's rights. As Plaintiff K&M
acknowledged, an irrigation easement does not confer veto power on the holder. Rather, the
standard is that of reasonableness and the Board addressed that the Applicant worked with adjacent
property owners and easement holders to mitigate concerns. The ultimate findings of the Board
do not show a lack of competent evidence that the plan would unreasonably inhibit WSSC's rights
or would damage the Canal.
d. Was there Competent Evidence that the Application is Compatible with
Surrounding and Future Uses?
Before the Board is allowed to approve a Use by Special Review, it must find "[t]hat the
USES which would be permitted will be compatible with the existing surrounding land USES."
WCC § 23-2-230.B.3. Similarly, an applicant is required to demonstrate that "the USES which
would be permitted will be compatible with future DEVELOPMENT of the surrounding area as
permitted by the existing zone and with future DEVELOPMENT as projected by Chapter 22 of
[the WCC] and any other applicable code provisions or ordinance in effect..." WCC § 23-
2230.B.4. "Compatible" is not defined in the Weld County Code. Plaintiff K&M argues that there
was no competent evidence for the Board to find that the Application is compatible with
surrounding and future uses. Moreover, Plaintiff K&M asserts that the Board does not address
compatibly, and the record does not support any findings that the Application is compatible.
In Response the Defendants highlight evidence from the record which they argue shows
that there is in fact competent evidence in the record to support the Board's findings regarding
compatibility, for both existing and future uses.
Again, express factual findings are not a prerequisite to a valid decision by an
administrative board if the necessary findings may be implied from the action taken. Canyon Area
Residents, at 909. Additionally, the standard under a 106(a)(4) review in this regard is whether,
in considering the whole record, the agency's ultimate findings are supported by any competent
evidence. Cooper, at 1189. Moreover, if an agency makes findings on which the ultimate implicit
finding can be grounded, a Court need not reverse or remand for additional findings. Id. The Board
made many findings and the record shows much evidence relating to existing and future uses.
While maybe not explicit, the Boards ultimate findings based on competent evidence have implied
that the Application's proposed use is compatible with existing and future uses. Therefore, the
Board did not abuse its discretion relating to a finding of compatibility.
ORDER
The Court finds that the Board may have exceeded its jurisdiction if the Colorado SLB is
the fee owner of the Canal Strip. Further, the Court finds that the Board did abuse its discretion
when it did not allow further public comment after substantial changes were made and it abused
its discretion by not relying on competent evidence regarding the Operational Standards under the
WCC. Accordingly, this matter must be remanded to the Board with directions for further findings
if the Colorado SLB is the fee owner of the Canal Strip, to allow additional public comments on
the new drainage plan, and for further findings under the Operational Standards as required under
the WCC.
Dated: November 29, 2018
Marcelo A. Kopcow
District Court Judge
This document was filed pursuant to C.R. C.P. 121, § 1-26. A printable version of the electronically signed
order is available in the Court's electronic file.
DISTRICT COURT, WELD COUNTY, COLORADO
Court Address: 901 9th Avenue, Greeley, CO 80631
Mailing Address: P.O. Box 2038, Greeley, CO 80632
Phone Number: (970) 475-2400
DATE FLED: January 23, 201'
CASE NUMBER: 2018Cv3o19
♦ COURT USE ONLY •
Plaintiff: THE WATER SUPPLY & STORAGE
COMPANY, a Colorado nonprofit corporation
v.
Defendants: BOARD OF COUNTY COMMISSIONERS
OF WELD COUNTY COLORADO (including all of the
individual Commissioners in their official capacities: Chair
Steve Moreno, Pro-Tem Barbara Kirkmeyer, Sean Conway,
Mike Freeman, and Julie Cozad); CACTUS HILL RANCH
COMPANY, a Colorado Corporation; and SIMON
CONTRACTORS, INC., a Wyoming Corporation.
Case Number: 1&CV30196
Division: 5
ORDER RE: DEFENDANTS' MOTION FOR RECONSIDERATION
THIS MATTER comes before the court on the Defendants' Motion for Limited
Reconsideration (the "Motion"). The court, having considered the Order, Motions, Responses,
Replies, and being otherwise fully advised, HEREBY FINDS and ORDERS as follows:
BACKGROUND
The Defendants request the Court to reconsider, in part, the Court's Order on the Plaintiffs'
Appeal Pursuant to C.R.C.P. 106(a)(4) of the Board of County Commissioners' of Weld County
Decision to Grant Use by Special Review entered on November 29, 2018 (the "Order"). This
matter, in relevant part, concerns the Plaintiff's appealing of the Board's decision to grant a Use
by Special Review ("USR") permit for the operation of an asphalt batch plant. The Court ruled
that the Board may have exceeded its jurisdiction if the Colorado State Land Board (the "Colorado
i
SLB") is the fee owner of the Canal Strip.' In addition, that the Board did abuse its discretion
when it did not allow further public comment after substantial changes were made to the
application and by not relying on competent evidence regarding required Operational Standards.
The Defendants' Motion only seeks a limited reconsideration of the Court's finding
regarding the Canal Strip. The language the Defendants seek to have reconsidered from the Order
is as follows:
However, the question can still be analyzed that if the Colorado SLB is the proper owner
of the Canal Strip, would the Board's findings be outside their jurisdiction. The Court
agrees with Plaintiff WSSC that if in fact the Colorado SLB is the fee owner of the Canal
Strip the Board would have exceeded its jurisdiction in approving the structures through
the Canal. The WCC states that for an application for a USR there needs to be signatures
of the applicant and "fee owner or their authorized legal agent." WCC § 23-2-50.8. If in
fact the Colorado SLB is the proper owner of the Canal Strip, their signature is missing
from the application. Therefore, without their signature and if they are the fee owner, the
findings of the Board would exceed its jurisdiction. Accordingly, this matter must be
remanded to the Board with directions the Board for more findings as to if the Colorado
SLB is a fee owner of the Canal Strip.
In addition, to the aforementioned language the Defendants seek to strike the findings by the Court
remanding this matter to the Board for further findings about the ownership of the Canal Strip.
STANDARD OF REVIEW
C.R.C.P 121 sets forth the standards and requirements of a motion to reconsider:
Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than
those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more
than a disagreement with the court's decision. Such a motion must allege a manifest error of fact or
law that clearly mandates a different result or other circumstance resulting in manifest injustice.
The motion shall be filed within 14 days from the date of the order, unless the party seeking
reconsideration shows good cause for not filing within that time. Good cause for not filing within
14 days from the date of the order includes newly available material evidence and an intervening
change in the governing legal standard. The court may deny the motion before receiving a
responsive brief under paragraph I (b) of this standard.
1 The "Canal Strip" refers to a portion of land referred to by the parties relevant to this Motion and is land which
the Plaintiffs argue is not owned by any of the Defendants or applicants, but rather the Colorado SLB.
Page 2 of 6
I
§ 1-15.
ANALYSIS
In the Order the Court found that under WCC § 23-2-50.82, USR applications are required
to signed by the applicant and the "fee owner [of the land] or their authorized agent". Thus, if the
Colorado SLB is the proper owner of the Canal Strip the Board would have exceeded its
jurisdiction in approving the structures through the Canal and the matter was remanded to the
Board for further findings if in fact the Colorado SLB was the fee owner of the Canal Strip.
Defendant Weld County argues that the Canal Strip is not part of the USR application and
it is an "off -site" property. Defendant Weld County further argues that the requirement to obtain
signatures of the applicant and the fee owners is applicable to the owners of property upon which
the special use will occur, not for off -site properties which may be affected by the use, or upon
improvements will be constructed. Moreover, Defendant Weld County argues that the drainage
facilities that would be placed across the Canal do not require a special use permit from the County.
Likewise, Cactus Hill and Simon argue that the record shows that the Canal Strip is not located
within the site of the USR property, so the owner of the Canal Strip is not a required signatory on
the USR application.
The Plaintiffs argue that that the Canal Strip, while not part of the application, became part
of the USR when the applicants proposed drainage system included the Canal Strip. Moreover,
the Plaintiffs argue that neighboring owners upon whose property a portion of the project will be
constructed, must agree to the application.
It is undisputed that the Canal Strip property was never included in the application of the
USR. The Weld County Code requires that an application for an USR contain "the entire LEGAL
2 In the Order the Court referenced WCC § 23-2-50.8, but as pointed out by the parties in the Motions, the Court
intended to refer to WCC § 23-2-260.8.8.
Page 3 of 6
LOT upon which the Special Review Permit will be located." WCC § 23-2-200.G [emphasis in
original]. Further, WCC § 23-2-260.B.2 states that the application shall included "Signatures of
the applicant and fee owners or their authorized legal agent." Moreover, WCC § 23-2-260.B.4
through B.5 requires a statement of the total acreage under consideration, its existing land use, and
the existing land uses of adjoining parcels.
The Colorado Supreme Court has described the rules for interpreting land use ordinances
as follows:
Courts interpret the ordinances of local governments, including zoning ordinances, as they
would any other form of legislation. As such, zoning ordinances are subject to the general
canons of statutory interpretation.
When construing a statute or ordinance, courts must ascertain and give effect to the intent
of the legislative body. Moreover, courts must refrain from rendering judgments that are
inconsistent with that intent. To determine legislative intent, we therefore look first to the
plain language of the ordinance. If courts can give effect to the ordinary meaning of words
used by the legislature, the ordinance should be construed as written, being mindful of the
principle that courts presume that the legislative body meant what it clearly said. Finally,
if the statutory language is clear and unambiguous, the language should not be subjected
to a strained or forced interpretation.
City of Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244, 1248-49 (Colo.2000)
(citations omitted). If the language of an administrative rule is ambiguous or unclear, a court gives
great deference to an agency's interpretation of a rule it is charged with enforcing, and its
interpretation will be accepted if it has a reasonable basis in law and is warranted by the record.
Sierra Club v. Billingsley, 166 P.3d 309, 312 (Colo. App. 2007). Likewise, where "the
governmental body's interpretation is consistent with generally applied rules of statutory
construction, the administrative interpretation is entitled to deference." Id.
Upon review, portions of this Court's order must be reconsidered. Here, the Board had
sufficient evidence and knowledge that the Canal Strip was not part of the property listed on the
USR Application. With that knowledge they approved the application which did not include a
Page 4 of 6
signature from the fee owner of the Canal Strip, whomever it is. It can be argued that there the
WCC language regarding who is required to sign the application, is ambiguous or unclear, however
great deference must be given to the Board's interpretation. Through the approving of the USR
Application, the Board interpreted the WCC to not require the signature of the fee owner of the
Canal Strip. This is a reasonable basis as the special use requested by the applicants would only
be on the legal lot on the application and the record warrants this finding further as no evidence or
argument was provided to the Board otherwise. Additionally, this interpretation is consistent with
generally applied rules of statutory construction. Therefore, it was erroneous for the Court to
render a judgment that went contrary to the Board's interpretation of the WCC. The Court has
reconsidered the Order and will amend its findings to strike the language regarding the Board
exceeding its jurisdiction due to a tack of signature from the fee owner of the Canal Strip.
In addition, upon further review, the Court has found that other portions of its Order were
inconsistent with Colorado jurisprudence. "Once a court finds that an administrative body has
abused its discretion, how to address that deficiency on remand is within the discretion of the
administrative body." Wolf Creek Ski Corp. v. Bd. of County Com 'rs of Mineral County, 170 P.3d
821, 831 (Colo. App. 2007). Originally, the Court found that the Board abused its discretion when
it did not allow further public comment after substantial changes were made and it abused its
discretion by not relying on competent evidence regarding the Operational Standards under the
WCC — this finding is still valid. However, the Court remanded this matter to the Board with
directions for further findings, this was erroneous. It is up to the Board to decide what to do with
the deficiencies in front of it.
CONCLUSION
Page 5 of 6
The Defendants' Motion for Limited Reconsideration is GRANTED on the grounds
stated in this order and the quoted portions of the Court's November 29, 2018 order and portions
relating to requiring a signature from the Canal Strip owner are hereby vacated. This matter is
remanded to the Board, due to an abuse of discretion, with no further instructions from the Court.
Based on the granting of this limited reconsideration, the Plaintiff may file a
supplemental brief on the request for bill of costs by February 4, 2019, Defendants may file a
supplemental response/objection by February 11, 2019, and Plaintiff may file a supplemental
reply, if applicable, by February 18, 2019.
Dated: January 23, 2019
Marcelo A. Kopcow
District Court Judge
This document was filed pursuant to C.R.C.P. 121, § 1-26. A printable version of the
electronically signed order is available in the Court's electronic file.
Page 6 of 6
•
PARAGON
Cl� '11 I FIN(; GROLP
August 9, 2019
Mr. Jay McDonald
Weld County Public Works
1 1 1 1 H Street
Greeley, CO 80631
Mr. Tom Parko, Jr.
Weld County Planning
1555 North 17th Avenue
Greeley, CO 80631
RE: USR17-0043 for Simon Contractors, Condition of Approval 1G
Dear Jay and Tom,
1103 Oak Park Drna, Sure 110
Fort Collins, CO S5575
RI au (970) 377-Io00
Fax 1 701377-1880
uu c pnrac,nrc �nm
DAvII M RAI', P.E., BCEE
Scan A. Ri 'TI IFRFORD, P -E
BRR..K S\IlTI I, P.E.
BRAT' C. \X'OII1 FR
HEATHER S.. AI I'tRMAN
D.4A'lls L. WA' KFR
AANI BPSTJr111NSON,MBA, .AICP
This letter serves the purpose of asking for a second extension to Condition of Approval 1G,
an extension to the Grading Permit expiration date, and associated date adjustments in the
Improvements Agreement. The Improvements Agreement was recorded on November 8,
2018 as was the USR Plat. The final Drainage Report and Certificate of Compliance for the
facility were approved by Public Works by issuance of Grading Permit GRD18-0021 on
October 11, 2018.
This letter also serves the purpose of notifying the County that Paragon Consulting Group,
Inc. (Paragon) is the Authorized Agent for this land use matter. All correspondence is to be
sent to my attention at the address and contacts included below my signature line. Simon
Contractors has authorized this change in the Authorized Agent as evidenced by the signature
at the bottom of this letter.
Condition of Approval 1G
Condition of Approval 1 G, as amended by the Board of County Commissioners on October
22, 2018, reads as follows, An Improvements and Road Maintenance Agreement is required
for off -site improvements at this location. Road maintenance including, but not limited to,
specified traffic improvements, dust control, damage repair, specified haul routes and future
traffic triggers for improvements will be included. Also Included in the Road Maintenance
Agreement is a timeline for the submittal of construction drawings and for the construction
of the off -site roadway improvements that shall be completed by October 31, 2019."
ENVIRONMENTAL ENGINEERING, WATER RESOURCES, LAND-L'SE PLANNING
AND GEOIIYDROLOGY
SINCE. Igo
Mr. McDonald and Mr. Parko — Weld County
Project Number: USR17-0043
August 9, 2019
Page 2
PARAGON
At this time, Tetra Tech has provided Weld County Public Works with Final construction
drawings. The following outlines submittal dates and comment return dates:
• 30% Construction drawing package was submitted to Weld County Public Works on
May 4, 2018; Comments were received on July 9, 2018.
• 90% Construction drawing package was submitted to Weld County Public Works on
August 14, 2019; comments were received on January 23, 2019.
• Due to the gap in not receiving comments, Tetra Tech proceeded with the submittal of
the Final Drawings on November 2, 2018. No comments have been received by Tetra
Tech regarding the November 2, 2018 submittal.
• The Pre -Final submittal was made on April 26, 2019 and comments were received
from Public Works on May 14, 2019.
• Tetra Tech provided a submittal addressing Weld County comments on July 16, 2019
and Public Works provided their comments on July 30, 2019.
• Tetra Tech provided a submittal addressing Weld County comments on August 7,
2019.
There have been at least three reviewers on these plans. It appears each reviewer has had a
different set of standards and/or comments. At this time, there are two significant items to be
addressed that were brought up for the first time with the Pre -Final submittal comments of
May 14, 2019. These items are significant and include:
• A speed limit reduction on Weld County Road 80.5 or an increase in the amount of
taper length and road improvement requirement to the east.
• There is a comment indicating that North Weld County Water District (NWCWD)
water line relocation plans shall be included in these plans. NWCWD is locating its
new line entirely outside the future county right of way (ROW) and it does not impact
the design of the roadway in any fashion. NWCWD has not completed its design and
waiting for them to do so for approval of Simon Contractors' (Simon's) plans may
delay the construction of the road beyond the agreed upon date within the USR.
Simon agrees that addressing the existing NWCWD water line is to be included in the
project. However, given that the new NWCWD water line is not in the Weld County
ROW, it is Simon's position that the new water line should not be subject to these
road improvements.
• There are other NWCWD waterline comments regarding abandonment and relocation.
NWCWD has directly reached out to Weld County regarding the abandonment of the
existing water line. We discussed the practicality of using insulation around the
shallow portions of the existing water line instead of relocation with the NWCWD
and NWCWD stated that they would prefer to not disturb the existing line and
Mr. McDonald and Mr. Parko — Weld County
Project Number: USR17-0043
August 9, 2019
Page 3
PARAGON
abandon it in place. Simon is caught between NWCWD and the request of Public
Works and are trying to find a solution to satisfy each entity.
A meeting was held between Public Works, Simon, Tetra Tech and Paragon representatives
on June 20, 2019 to discuss the three issues described above. Changes have been made to the
Pre -Final Drawings and were submitted by Tetra Tech on July 16 for an agreed -upon
expedited review by Public Works. Comments were received from Public Works on July 30
and it appears perhaps one additional round of review is needed to finalize the road
improvement plans prior to Weld County issuing approval. A submittal for review was made
by Tetra Tech on August 7. At this time, we anticipate receiving approval by Public Works
by the end of August 2019.
The design for the improvements to State Highway 257 were approved by CDOT on April
24, 2019. The hydraulics associated with the improvements design to State Highway 257
were approved by CDOT on June 6, 2019.
At the present time, Simon Contractors is involved in two lawsuits which have a material
bearing upon the timing of the construction of roadway improvements. This lawsuit, Case
Number 2018CV030196 also involves Weld County as it relates to two (2) appeals of the
USR approval granted by the Board of County Commissioners. In this case, the main
Defendants are the Board of County Commissioners, Simon Contractors and Cactus Hill
Ranch. This case has been remanded by the Weld County District Court to the Board of
County Commissioners for additional proceedings to follow the outcome of the second case
described below.
The second case is Case Number 2018CV030402 which is a declaratory judgment action in
which Simon Contractors and Cactus Hill are the Plaintiffs and The Water Supply and
Storage Company is the Defendant. This case is pursuant to Colorado case law involving the
crossing of the Larimer County Canal owned and operated by The Water Supply and Storage
Company. When the application was originally submitted for review by Weld County,
stormwater drainage was discharged into the Larimer County Canal consistent with historical
practice. During the land use hearing process, The Water Supply and Storage Company
refused to accept drainage into the canal, and the application was amended to include a
crossing to route drainage under the Larimer County Canal. On The Water Supply and
Storage Company's request, Simon redesigned the crossing to an "over the ditch" design, and
submitted numerous iterations of these designs. Notwithstanding these changes, to date,
Simon and The Water Supply and Storage Company have not been able to reach terms on a
Mr. McDonald and Mr. Parko — Weld County
Project Number: USR17-0043
August 9, 2019
Page 4
PARAGON
crossing. Trial of Case Number 2018CV030402 is scheduled for September 23 through
September 26, 2019.
Accordingly, the two (2) cases result in circumstances beyond the control of Simon
Contractors and Cactus Hill. Simon Contractors has been diligent in its pursuit of the
application by obtaining approvals to record the USR Mylar, the Improvements Agreement,
and have obtained approval of the on -site Grading Permit, Grading Report and Certificate of
Compliance.
It does not make economic sense for Simon to proceed with construction of roadway
improvements pending decisions in the two (2) above cases. Legal counsel for Simon and
Cactus Hill have been in contact with the Weld County Attorney's office and the County
Attorney has suggested that Simon and Cactus Hill request clarification on deadlines pending
the remand and trial in those cases. Out of an abundance of caution we are also writing your
Departments, presumably in discussion with the Weld County Attorney's office, can advise
Simon Contractors and Cactus Hill as to the procedure to be followed regarding extension of
the October 31, 2019 date listed in the amended Condition of Approval 1G.
On behalf of Simon Contractors, Paragon Consulting Group is requesting an extension to the
date associated with Condition of Approval 1G. Due to circumstances beyond the control of
Simon Contractors, we are requesting that the language below replace Amended Condition of
Approval 1G. Weld County Public Works has reviewed this proposed language and is in
support of the request.
"1.G. An Improvements and Road Maintenance Agreement has been entered into
between Weld County and Simon Contractors on November 7, 2018. is
required for off site improvements at this location. Road maintenance
including, but not limited to, specified traffic improvements, dust control,
damage repair, specified haul routes and future traffic triggers for
improvements will be included. Also included in the Road Maintenance
Agreement is a timeline for the submittal of construction drawings and for the
construction of the off -site improvements. Simon Contractors received
approval of the construction drawim4s on August XX. 2019. Simon
Contractors will not operate their Asphalt and Ready -Mix Concrete Plants
commercially until the improvements to Weld County Road 80.5 and State
Highway 257 are made. The exception to this is that the facility can operate
Mr. McDonald and Mr. Parko — Weld County
Project Number: USR17-0043
August 9, 2019
Page 5
PARAG ON
so that Simon Contractors can provide their own material for the
improvements.
Grading Permit and Improvements Agreement
On behalf of Simon Contractors, Paragon also requests that the expiration date of the
Grading Permit be modified to run parallel with the proposed Condition of Approval 1G.
Grading Permit, GRD18-0021 expires on October 11, 2019 and we request this date to run in
parallel with the provision in Condition of Approval 1G. The construction schedule in the
Improvements Agreement should also run parallel to reflect the amended Condition of
Approval 1G.
We request these modifications to all dates occur simultaneously.
Let us know if you need further information.
Sincerely,
PARAGON CONSULTING GROUP, INC
Anne Best Johnson, MBA, AICP
Chief Planner
ABJohnsonrcD,paragoncg.com
(970) 215-1542
Electronic copy: Kim Ogle, Elizabeth Relford, Dawn Anderson, Bob Choate
Authorized by: Simon Contractors
By: �- Date: 37/3// 9
Name: Brett Baker, President
(FTC)N:12017\PROJECTS\1017058\USR DOCUMENTS\EXTENSION TO IMPROVEMENTS 2019\10107058 EXTENSION TO
IMPROVEMENTS 190809 FINAL.DOCX
Chloe Rempel
From:
Sent:
To:
Cc:
Subject:
Attachments:
Kim Ogle
Monday, January 28, 2019 11:36 AM
Selena Baltierra; Jessica Reid; Chloe Rempel; Isabella Juanicorena; Esther Gesick
Tom Parko Jr.; Lauren Light
FW: Severance Asphalt Plant/ Cactus Hill Ranch area (Water System Problems)
weldwater2.jpg; simonnoisejpg
Please add to the Cactus Hill — Simon Contractor File
USR17-0043
Thank you
Kim Ogle
Planner
Weld County Planning Services
1555 North 17th Avenue
Greeley, Colorado 80631
970.400.3549 Direct
970.353.6100 x 3540 Office
kogle@weldgov.com
From: doylegreg5@aol.com <doylegreg5@aol.com>
Sent: Monday, January 28, 2019 10:17 AM
To: Kim Ogle <kogle@weldgov.com>
Subject: Fwd: Severance Asphalt Plant/ Cactus Hill Ranch area (Water System Problems)
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.
Original Message
From: doylegreg5 <dovlegreg5aol.com>
To: smoreno <smoreno(a�weldgov.com>
Sent: Mon, Jan 28, 2019 10:15 am
Subject: Fwd: Severance Asphalt Plant/ Cactus Hill Ranch area (Water System Problems)
Original Message
From: doylegreg5 <dovlegreg5(aol.com>
To: mfreeman <mfreeman(a�weldgov.com>
Sent: Mon, Jan 28, 2019 10:15 am
Subject: Fwd: Severance Asphalt Plant/ Cactus Hill Ranch area (Water System Problems)
copy of letter and noise levels they don't comply with residential levels yet
COMM ons
(2),/OL1 r k9
1
ao" - acD O 3
P�aso3
Original Message
From: doylegreg5 <doylegreg5(c�aol.com>
To: mfreeman <mfreemanaweldgov.com>
Sent: Mon, Jan 28, 2019 10:12 am
Subject: Severance Asphalt Plant/ Cactus Hill Ranch area (Water System Problems)
Update****** The water problems we brought up at your hearings on Cactus Hill/Simon Contractors Asphalt
Plant************
Here is a copy of a letter from North Weld Water Company, acknowledging there is a pressure problem on old water
systems. I would
like the Weld County Commissioners to read the "bandaid" fix the Weld County Water company wants to use rather than
having the
County fix it like it should be. If you move in Industrial Companies into such a rural area, you should be ready to replace
all the old
utilities like water, electric and dirt roads that are only 26 ft wide to accompany such growth and usage you agreed to
move into the area.
We cannot wash dishes and go to the bathroom at the same time in many homes. Please address this in your approval
documents.
Thank you...
I could start a petition if needed, please let me know..
Sincerely
Laura Doyle
970-690-3765
2
NORTH WELD COUNTY WA FER DISTRICT
32825 CR 39 • LUCERNE, CO 80646
P.O. BOX 56 • Mils: 970-356-3020 • FAX: 970-395-0997
WWW.N W(1WD.ORCS • EMAIL: W ATER(ciiNWCW D.OR6
January 14, 2019
Re: Booster Pump
North Weld County Water District "District") received complaints in the past
.
waterpressure in your neighborhood due to the close proximity of your property
regarding
located at 39256 CR
219 to the District's 6.5 -million -gallon water storage tank. Because of
' proximity to the water storage tank, the decrease in elevation is not sufficient to
the, close
ge
nerate substantial water pressures based on gravity flow.
you ou and the other owners of property in your neighborhood were aware
of the water pressure issues, you nevertheless elected to obtain domestic water service from
the District. In an effort to assist you in resolving the water pressure issue, the District has
agreed to provide, at its expense,
ense a booster pump to be installed by you downstream of the
p
water meter to increase water pressure to your household.
willing to provide a booster pump to you at the District's expense on
The District is
a one-time basis provided that you agree to the following conditions:
1. You will be solely responsible at your expense for the installation, repair and
p _
any
replacement of the booster pump,
including plumbing services required in connection
therewith.
•
The, booster ,ump will be located downstream of the District's water meter.
p
3. The District will have no responsibility with respect to the booster pump,
. �maintenance, r air i�r re replacement of the booster pump, the
including, hut not limited to, repair p
�� • thereof
vof the booster pump and proper installation
sufficiency
•
Page 1
Esther Gesick
From:
Sent:
To:
Cc:
Subject:
Sean Conway
Tuesday, August 7, 2018 3:56 PM
Wendell E Brown
Bruce Barker; Esther Gesick; Jay McDonald
RE: Simon Asphalt Plant
Mr. Brown - Thank you for your email. I have passed along your email to Weld County Planning and Public Works asking
them to respond to your questions and concerns. Unfortunately, due to the on -going litigation regarding this USR, I am
unable to discuss this matter further with you. Thank you for your understanding. Sean Conway — Weld County
Commissioner.
Sean Conway
Commissioner At -Large
1150 O Street, P.O. Box 758, Greeley, CO 80632
970-336-7204
sconway@co.weld.co.us
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.
From: Wendell E Brown <wendell.brown@KodakMoments.com>
Sent: Monday, August 06, 2018 3:12 PM
To: Sean Conway <sconway@weldgov.com>
Subject: Simon Asphalt Plant
Mr. Conway,
You were the only that seemed to care about the constituents issues concerning the permanent permit for the Simon
asphalt plant north of Windsor. I am just curious if there is any ability by the commissioners to force Simon to come
across with the promises they made? The most important to me is the paving of the entrance to WCR 80 1/2, and the
construction of turn lanes to make that intersection safer. I know they are not going to do the landscaping because of
the overhead power lines and Nelson's comments, that since they are the adjacent property, they don't care. But the
turn lanes are a very serious safety issue. Trucks blocking the road, continue to be an issue.
Thank you for your time.
Wendell Brown
2018-2603
1 PLa5o�
Wendell Brown I Thermal Media Manufacturing, Engineering/Maintenance
Personalized Imaging 19952 Eastman Park Drive
Windsor, Colorado 80551-1496
wendell.brown(a�kodakmoments.com
www.kodakmoments.com
Kodak alaris
2
Hello