HomeMy WebLinkAbout20172280.tiffHEARING CERTIFICATION
DOCKET NO. 2017-36.B, PART 1
RE: A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT,
USR17-0007, FOR A USE PERMITTED AS USE BY RIGHT, ACCESSORY USE, OR USE
BY SPECIAL REVIEW IN THE COMMERCIAL OR INDUSTRIAL ZONE DISTRICTS
(COMMERCIAL TRUCK PARKING - FOUR (4) TRACTORS) PROVIDED THAT THE
PROPERTY IS NOT A LOT IN AN APPROVED OR RECORDED SUBDIVISION PLAT
OR PART OF A MAP OR PLAN FILED PRIOR TO ADOPTION OF ANY REGULATIONS
CONTROLLING SUBDIVISIONS IN THE A (AGRICULTURAL) ZONE DISTRICT — MARK
VILLEREAL AND ALMA GARCIA
A public hearing was conducted on July 12, 2017, at 10:00 a.m., with the following present:
Commissioner Julie A. Cozad, Chair
Commissioner Steve Moreno, Pro-Tem
Commissioner Sean P. Conway
Commissioner Mike Freeman
Commissioner Barbara Kirkmeyer
Also present:
Acting Clerk to the Board, Tisa Juanicorena
Assistant County Attorney, Bob Choate
Planning Services Department representative, Diana Aungst
Public Works Department representative, Evan Pinkham
Planning Services Engineer representative, Hayley Balzano
Health Department representative, Lauren Light
The following business was transacted:
El I hereby certify that pursuant to a notice dated March 29, 2017, and duly published
April 3, 2017, in the Greeley Tribune, a public hearing was conducted on May 17, 2017, to
consider the request of Mark Villereal and Alma Garcia, for a Site Specific Development Plan and
Use by Special Review Permit, USR17-0007, for a Use permitted as a Use by Right, Accessory
Use, or Use by Special Review in the Commercial or Industrial Zone Districts (commercial truck
parking — four (4) tractors) provided that the property is not a lot in an approved or recorded
subdivision plat or part of a map or plan filed prior to adoption of any regulations controlling
subdivisions in the A (Agricultural) Zone District. At that time, it was deemed appropriate to
continue this matter to July 12, 2017, to allow all five (5) Commissioners to be present.
Bob Choate, Assistant County Attorney, made this a matter of record.
Diana Aungst, Department of Planning Services, presented a brief summary of the proposal
and provided the site location in relation to relevant County roads. She stated 14 referrals were
sent out and staff received seven (7) responses with no concerns or with comments that have
been considered. Ms. Aungst reviewed the applicant's request for parking of commercial trucks
and minor maintenance. She reported the applicant's effort to mitigate impacts by installing
fencing, and stated the application is the result of a Zoning Violation. She described the adjacent
land uses and nearest residences and reviewed the correspondence received from surrounding
property owners both in support of, and in opposition to, the application. Ms. Aungst described
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the applicant's desire to be a good neighbor and his efforts to install fencing, insulate the
maintenance shop to reduce noise, fire a reckless employee, and limit the hours of operation. She
stated the site is not located within a three (3) mile referral area of any municipality or
intergovernmental agreement area. Ms. Aungst displayed photos of the site and surrounding
views and entered the favorable recommendation of the Planning Commission into the record as
written. In response to Chair Cozad, Ms. Aungst confirmed the closest neighbor is in support of
this application.
Evan Pinkham, Department of Public Works, provided a brief overview of the transportation
plans and requirements and stated Access Permit, AP#17-00129, has been approved which
stipulates to utilize the three (3) existing access points and to close one (1) access located
approximately 1,900 feet west of CR 55, by September 10, 2017. He provided the average daily
traffic counts and truck percentage and stated the traffic narrative indicated four (4) daily round
trips. Mr. Pinkham stated tracking control is required and at this time the Department of Public
Works is waiving the requirement for an Improvements Agreement.
El Hayley Balzano, Planning Services Engineer representative, presented the drainage and
grading requirements and stated the applicant submitted a drainage narrative depicting meeting
Exception 1.A.14; however, the gravel area shown on the map appears to be larger than the
stipulation of the exception. She clarified the applicant will need to submit a corrected map and,
if the area is larger, they will need a drainage report with a detention pond design.
• Lauren Light, Department of Public Health and Environment, reviewed the water and sewer
provisions, stating water to the existing home is provided by the North Weld County Water District
and there is a septic system sized and permitted for three (3) bedrooms. She clarified the use of
portable toilets is acceptable; however, if the residential septic system is used for the business it
will need to be reviewed by an Engineer. She reviewed the Conditions of Approval and stated
Development Standards (DS) #13-22 reflect typical Environmental Health items.
• Mr. Choate stated there are exhibits that were submitted by a surrounding property owner
regarding the personal history of the applicant that, based on his professional opinion, do not
appear to be relevant to the decision -making requirements of the Board of County Commissioners
regarding this land use case. Mr. Choate asked the Board to decide if this exhibit should be
included or disregarded, based on the information provided. After further discussion, the Board
deemed the exhibit be disregarded.
• Mark Villerreal, applicant, stated he is requesting to park additional vehicles on the property.
He indicated the traffic is not daily to the property and is minimal. He stated he respects his
neighbors and thinks he can operate his business and remain a good neighbor. In response to
Commissioner Kirkmeyer, he pointed out the location of the fencing he installed, the parking area
for the trucks and the accesses, and described the expected truck routes and the proposed hours
of operation. In response to Commissioner Conway, Mr. Villerreal explained the truck arrival and
departure sequences in more detail and in relation to the various companies they haul for.
El Iris Mesbergen, surrounding property owner (SPO), submitted a letter of opposition
(Exhibit F), and read it for the record. She stated she has lived at her property for 19 years and
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teaches at Weld Central High School in Keenesburg, Colorado, and that her primary purpose
today is to oppose the application. Ms. Mesbergen also submitted photos in evidence of too many
vehicles on the property and an audio file exemplifying the noise after hours (Exhibit G). She
stated the existing zoning is residential and agricultural, not commercial or industrial, and that the
applicant continues to violate the laws regarding the zoning. She cited too many vehicles are
being parked on -site, along with many other trailers and service trucks, the applicant is not abiding
by the hours of operation, and the noise, dust and lights impact her family. Ms. Mesbergen stated
her family has had to purchase black out blinds at a cost of $1,000.00 and that the suggested
screening from evergreen trees will be slow and the fencing option is problematic due to proximity
to Owl Creek. She reported the applicant purposely diverted floodwater from the historic flow
pattern of Owl Creek, which washed out her driveway and destroyed another neighbor's beet
crop. Ms. Mesbergen emphasized that due to the aforementioned reasons, she has a lack of trust
in the applicant and requested the Board's assistance with this matter. In response to
Commissioner Conway, Ms. Mesbergen stated she has spoken to the applicant regarding her
opposition.
Teresa Sponaugle, SPO, displayed a Powerpoint presentation (Exhibit E) in opposition
based on lack of compatibility. She cited concerns regarding safety, violation of the hours of
operation, natural flooding events associated with Owl Creek, and environmental contamination.
Ms. Sponaugle stated Owl Creek has a history of flooding dating back at least 20 years, which
makes the close proximity of the applicant's requested truck parking a hazard to all. She
emphasized that one contamination event will result in years of damage to the waterway and
surrounding environment. She provided photos exemplifying the two (2) flood events that took
place in May and the aftermath of the applicant's semi -trailers buried in mud up to the hubs. She
stated large culverts or berms will not abate the flood waters enough to make any difference other
than further destruction. Ms. Sponaugle reported the disastrous effort by the applicant to cut an
opening in the bank of Owl Creek to attempt to divert water from his property resulting in the
flooding and destruction of a neighbor's crops and she stated the County should fix this flooding
problem before a variance is given. She further stated the use should be limited to four (4) actual
licensed trucks with current registration, drivers insurable, and the other vehicles limited to a
specific number, as she is concerned the Permit does not have specific stipulations and the
limitations need to be clear. Ms. Sponaugle also cited concerns regarding road maintenance and
dust mitigation, emergency after-hours operations needing parameters, material being
hauled/stored on -site must not be hazardous, and if the property is sold, the USR should be
vacated and the site returned to agricultural use. She emphasized infractions reported to the
County need to be logged, and lastly, for the aforementioned reasons, she stated her opinion that
USR17-0007 is not compatible.
Warren Hammerbeck, SPO, provided a letter of objection (Exhibit H) and stated his concerns
regarding diverting the flow of Owl Creek and the operation of a truck business without the proper
permits. He pointed the applicant's diverting the flood water of Owl Creek during the last flood
incident cost him $42,000.00 in crop damage. He further expressed his concerns regarding too
many semi -trucks being located upstream due to the threat of contamination to downstream
property owners. He reported during the last flood event that one of Mr. Villereal's tankers nearly
flipped over due to the instability of the high waters and ensuing mud. He expressed his frustration
that there has been no offer of restitution to neighbors for the damages related to his decision to
divert the water. Mr. Hammerbeck expressed his concern over groundwater contamination and
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he explained the presence of 60-70 drain tiles that are underground and how any contamination
will affect the subterranium and make it impossible to clean the soil profile. He asked the
Commissioners to protect the landowners from this business that has not addressed these issues.
In response to Commissioner Conway, Mr. Hammerbeck explained he was out of the State when
the ditch was cut across the highway; however, he was contacted by the farmer who manages
his crops, but he has not spoken to the applicant.
El Gordon Mesbergen, SPO, stated he owns the property directly across the road from the
applicant's truck terminal and has lived there for 19 years. He expressed his frustration with the
location of the truck terminal impacting his horse pasture, and cited concerns regarding too many
trucks on -site, hazardous materials in the tankers, DOT registration, Colorado Well site service
rating, and flooding. He explained it is a farming community with a neighborhood of folks who
work together and watch out for each other and now there is a common feeling that the trust has
been violated and it feels more like a battlefield with a chaotic atmosphere. He submitted pictures
(Exhibit I) to the County Attorney depicting the loss of tranquility.
Rick Sponaugle, SPO, stated his agreement with what has already been presented by his
neighbors. He reviewed the Code requirement for additional consideration regarding the use
being operated in a manner that is compatible and emphasized the applicant's operation has not
been compatible and has violated ordinances. Mr. Sponaugle pointed out there are big patches
of Canadian thistle, a noxious weed, on the property, and expressed his frustration with attempting
to file complaints and being told the case is now in the USR process. He cited concerns to include
the number of trucks, trash, operations, the applicant's inability to operate within the ordinances
and Development Standards and disregarding regulations and rules, and violations with state and
federal waterways. Mr. Sponaugle gave an eyewitness account of Mr. Villereal's actions to breach
the creek and divert waterways that flooded his property and stated he approached Mr. Villereal
and required the berm be replaced, which he did, and Owl Creek flowed naturally again. He
clarified that the applicant has a history of violating the law and a USR Permit is a privilege and
privileges are earned. He does not believe Mr. Villereal has earned the right for this Permit as he
has proven he is not able to operate his business in a manner that is compatible.
Carmen Mesbergen, SPO, provided a handout and photos (Exhibit J), stated her interest in
her future inheritance and requested denial based on incompatibility with the surrounding area.
She reiterated the historic flooding that occurs and stated the area is very rural agricultural and
light residential and she is concerned the applicant's land use will change the character of the
neighborhood. Ms. Mesbergen disagreed that the Development Standards will alleviate the
concerns because many of these standards have been violated such as hours of operation, noise,
and the presence of noxious weeds, and she feels these violations are a threat to the quality of
life of the community. She stated if the applicant fails to uphold their own standards, how much
worse will it be if the Permit is granted. She expressed her frustration with the screening effort
and stated no trees have been planted. Ms. Mesbergen requested a denial.
Chair Cozad recessed at 12:45 p.m. (Clerk's note: the audio system was reset over the lunch
hour resulting in a break in the audio record, requiring this portion of the hearing to be hereafter
referred to as Part 1. Hearing Certification, Part 2, will commence with reconvening after the
recess.)
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HEARING CERTIFICATION
DOCKET NO. 2017-36.B, PART 2
(Clerk's note: the audio system was reset over the lunch hour resulting in a break in the audio
record, requiring this portion of the hearing to be hereafter referred to as Part 2.)
Chair Cozad reconvened the hearing at 1:36 p.m.
Mr. Villereal stated until a final decision was made, he was under the impression that he
could continue to park the trucks on his property and he clarified he has spoken to his employees
regarding the hours of operation and he is trying to get everyone and everything set in stone. He
emphasized that his family lives on the site also and he does not transport hazardous materials
and is not qualified to do so. Mr. Villereal stated there is no storage on -site of any loads and it is
only empty trailers that are parked. He clarified the flooding is out of his control and stated he did
not bank up the dirt to intentionally flood the neighbors and he did not breach the bank. He stated
once the water level got to that point it took the path of least resistance, flooding everyone and
he offered to work together and bank it up to go straight through. Mr. Villereal insisted there are
no contaminants in his trucks, other than the diesel fuel, and he is not going to do anything to hurt
his own family of four (4) children and his wife. He stated when he was made aware of the noise
levels, he went and talked to that certain employee and made it clear that operations cease at
8:00 p.m. and no later. Mr. Villereal stated he does take into consideration the neighbors and he
is not ignoring them. He explained the County did stop by and mentioned the noxious weeds in
the field but he doesn't have a mower at the moment to address them. He stated that throughout
the process nothing has been brought to his attention until it is a big issue and he is learning as
he goes. He mentioned a neighbor has a trucking company with two (2) tractor trailers and didn't
think this would be such a problem.
In response to Chair Cozad, Mr. Villereal reiterated the trucks are always empty and he is
not hauling any hazardous materials and he has no plans for that in the future because he has
no insurance for that. In further response, he stated he has not addressed the issue of managing
the dust but in the future, he can hose it down with water from the hydrant.
Alma Garcia, applicant, asked if Mr. Mesbergen has a spill contamination plan in case his
truck has a spill. Chair Cozad clarified the Board is only concerned about their property and their
plan, as this is a hearing to potentially acquire a USR Permit for them and their business.
El Mr. Villereal stated there is no concern with contamination as stated before, the trucks are
empty other than the fuel and fluids.
In response to Chair Cozad, Mr. Villereal stated regarding compatibility, there is a
commercial farming operation with silage trucks racing up and down the road for about 5-6 hours
a day, and the neighbors have a trucking business, and there are other trucking companies in the
area.
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• In response to Commissioner Moreno, Mr. Villereal stated they have owned the property for
10 months.
El In response to Commissioner Kirkmeyer, Mr. Villereal stated as soon as they received the
letter of violation, they started the USR process. Commissioner Kirkmeyer pointed out he is not
following the rules set forth at Planning Commission limiting the number of trucks to four (4). He
explained he was looking into trading trucks and that he was under the assumption that it was still
allowed to have four to six trucks until further notice. He further explained some of the vehicles
are service trucks, one is not road -worthy and is just parked and used on -site like a farm truck
and he did not realize the limitation of four trucks was set. Commissioner Kirkmeyer asked about
moving the parking area further away from where the flooding occurs. Mr. Villereal explained the
parking area could be moved closer to the shop but it will continue to be subject to flooding, or
they could park in the field but the lights and noise will create an issue. Commissioner Kirkmeyer
made it clear that, currently, he is limited to four (4) tractors and four (4) trailers.
• Ms. Garcia asked regarding different types of trailers for each tractor because of hauling
different materials and for clarification reagarding service vehicles, employee vehicles, and
personal vehicles.
• Chair Cozad asked for a review of the Planning Commission notes and for input from
Mr. Choate, who recalled the change to four (4) tractors (power units) and no limit on the trailers.
• In response to Commissioner Kirkmeyer, Mr. Villereal stated when he became aware of the
employee working after hours, he went outside and told him to shut it down.
• Chair Cozad explained there were two (2) Planning Commissioners who voted no on the
application because they did not believe the applicant would follow the rules. She directly asked
Mr. Villereal if he would follow the rules and if he understands the responsibility of compliance.
He stated he understands and agrees to abide by the rules.
• In response to Commissioner Kirkmeyer, Mr. Villereal stated prior to ten (10) months ago,
the trucks were being parked in Evans, in a yard with a lot of other commercial vehicles. Due to
the high rent, they moved the truck parking to Kersey, but at that location they were robbed, so
they proceeded to sell their house and bought the current property. Commissioner Kirkmeyer
reviewed the vehicles. Mr. Villereal stated if a driver arrives after 4:00 p.m., he would transport
the driver to their personal vehicle off -site.
▪ In response to Commissioner Conway, Mr. Villereal explained he wants to be a good
neighbor.
• In response to Chair Cozad, Ms. Light explained the protocol regarding spills. Ms. Balzano
clarified the size of the parking area allowed is 4,500 square feet of gravel, and if more than that
it will require a drainage report and a detention pond. Ms. Aungst stated neither the property nor
Owl Creek are in a designated floodplain.
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• Commissioner Kirkmeyer requested discussion concerning the general direction of the Board
because she is concerned and has a lack of confidence that the applicant will operate within the
guidelines.
• Commissioner Moreno stated he sees some responsibility with putting up a fence and yet
still a lack of responsibility and issues that have to be addressed.
Commissioner Freeman stated parking four (4) trucks is compatible with other truck parking
in the area and agriculture operations but mitigation is an issue with the neighbors.
• Commissioner Conway stated the applicant has had difficulty understanding the process but
is trying to make it work and he suggested a continuance to allow the applicant to have a
community meeting.
• Commissioner Moreno asked for clarification regarding the current violation and parking the
trucks on -site. Commissioner Conway stated the applicant is limited to what the Planning
Commission decided and if there is a continuance, there needs to be specific instruction given.
He stated a continuance and a dialogue with the neighbors would be beneficial.
• Chair Cozad stated the applicant is new to the neighborhood and there are some concerns
from the neighbors, and while she appreciates they had the neighborhood meeting, she agrees
with fellow Commissioners that there is still more work to do. Chair Cozad expressed her
appreciation for the applicant trying to have a business to support his family and she can
understand, to a degree, how this process can be confusing. She stated she agrees with the
suggestion for a continuance and encouraged the applicant to work with the neighbors to get to
a win -win situation for everyone.
• Mr. Villereal stated the process has been interesting and very difficult with the neighbors. He
expressed if a problem is brought to his attention he has tried to fix it. He feels there is nothing he
can do to please everyone and there are neighbors who just don't support the request. He clarified
ignorance is not an excuse, but he has never owned a property like this and was not aware of the
process.
• Chair Cozad stated it is the applicant's responsibility as the property owner to follow the rules
and the community should try to work on things as neighbors. She clarified she is supportive of
either a continuance or moving forward.
• Commissioner Conway asked the applicant if he thought it might be helpful to have a
community meeting to pursue mitigation solutions with his neighbors. In response, Mr. Villereal
stated he would like to be positive about another community meeting but he doesn't think they
are going to budge.
• Commissioner Kirkmeyer stated she is ready to continue to a later date because it is not the
actions of the neighbors causing concern, it is the actions of the applicant regarding compatibility
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that are causing the concern. She emphasized to the applicant that it is their responsibility to
prove certain criteria and one of those is compatibility. She stated parking vehicles in a place that
makes the flooding issues worse is not compatible, and parking more vehicles than are allowed
is not compatible. The neighbors have legitimate concerns and the applicant is going to have to
figure out how to live in the neighborhood. Commissioner Kirkmeyer suggested a continuance to
allow time for mitigation and for the applicant to figure out how to follow the rules or she is
considering a motion for denial.
Ms. Garcia asked if there is a continuance do they have to remove the trucks? Chair Cozad
clarified they may keep the number of trucks allowed at Planning Commission which is four (4)
power units and no limit on trailers. She encouraged the applicants to show compliance and earn
the trust of the neighbors by being in compliance during the continuance and to make an effort to
talk to the neighbors.
El Commissioner Conway requested that the Board clarify what the applicants are allowed to
do during this period of time so it is clear for the applicant and the neighbors. Chair Cozad stated
there are Development Standards that should be followed and she asked the Board for direction
regarding the number of trailers to be allowed. She asked the applicant what he currently has on -
site. Commissioner Kirkmeyer stated the applicant should be limited to what is on -site right now.
El Commissioner Kirkmeyer moved to continue Site Specific Development Plan and Use by
Special Review Permit, USR17-0007, for a Use permitted as a Use by Right, Accessory Use, or
Use by Special Review in the Commercial or Industrial Zone Districts (commercial truck parking
— four (4) tractors) provided that the property is not a lot in an approved or recorded subdivision
plat or part of a map or plan filed prior to adoption of any regulations controlling subdivisions in
the A (Agricultural) Zone District, to August 9, 2017, at 10:00 a.m., to allow the applicant to meet
with the neighbors and discuss mitigations to address their concerns and with the following
direction. There shall be no more than four (4) tractors, no more than any combination of four (4)
tankers, trailers, and/or belly dumps, and one (1) service vehicle parked on -site. The hours of
operation are 6:00 a.m. to 8:00 p.m., Monday through Friday; and 9:00 a.m. to 4:00 p.m.,
Saturday; and, there will be no trucks coming or going outside of those hours. There will be no
fuel storage on -site, all cargo will be non -hazardous materials, and all trailers are to be empty
upon return. Commissioner Kirkmeyer further suggested the applicant consider the possibilities
regarding moving the truck parking, and berming and begin to address these issues instead of
looking at what the neighbors are doing and she emphasized they must follow the Development
Standards listed in the Resolution. The motion was seconded by Commissioner Moreno, and it
carried unanimously. Commissioner Conway addressed the applicant and stated this is an
opportunity to meet with the neighbors to try to work with them and be a good neighbor, and if
there are questions to contact the Planning Department. Commissioner Kirkmeyer stated it is
important to establish trust and confidence with neighbors and the Board, and she made it clear
that trust has not been established. There being no further discussion, the hearing was completed
at 2:46 p.m.
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This Certification, Parts 1 and 2, was approved on the 17th day of July, 2017.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST: ddedf4A) •dg40•tdi
Weld County Clerk to the Board
y Clerk to the Board
APPROV D AS T
orney
Date of signature: 8/at ( i
Julie A. Cozad, Chair
arbara Kirkmeyer
S eve Moreno, Pro -Tern
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