HomeMy WebLinkAbout20174263.tiffRESOLUTION
RE: GRANT APPEAL OF THE LAND USE APPLICATION FEE ASSESSED BY THE
DEPARTMENT OF PLANNING SERVICES CONCERNING THE EXPANSION OF
USR-1092 (MUSR14-0014) - OPAL FOODS, LLC
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, on October 30, 1995, the Board of County Commissioners approved the
application of Moark Hatcheries, LLC, 9583 CR 73, Roggen, Colorado 80652, for a Site Specific
Development Plan and Use by Special Review Permit, USR-1092, for a commercial egg
production facility in the A (Agriculture) Zone District on the following described real estate, to -
with:
E112 of Section 13, Township 2 North, Range 63
West of the 6th P.M., Weld County Colorado
WHEREAS, the current property owner and Appellant, Opal Foods, LLC, has submitted
an application to Amend MUSR14-0014 to increase the capacity of the facility from 1.53 million
birds to 4.5 million birds, and
WHEREAS, the Department of Planning Services has determined the request requires a
major amendment with an assessed review fee, in the amount of $28,915.00, in accordance of
the animal unit table under Chapter 23 Zoning, and Chapter 5, Appendix 5-J, of the Weld County
Code, and
WHEREAS, in accordance with Appendix 5-J, Planning Fee Schedule Item #29, said
Appellant is willing to pay a retainer, in the amount of $10,000.00, to be charged against by the
County based on the costs incurred by the County for time spent processing the application, with
said amount to be replenished if exceeded, or a balance returned if not fully utilized, and
WHEREAS, on December 20, 2017, the Appellant was represented by Tim Naylor,
AGPROfessionals, LLC, 3050 67th Avenue, Greeley, CO 80634, and
WHEREAS, upon consideration of such appeal, including a review of all information
submitted by the Appellant and the Department of Planning Services, the Board deems it
advisable to grant the appeal of Opal Foods, LLC, reverse the decision of the Department of
Planning Services, and remand the issue back to staff with instruction to accept a retainer, in the
amount of $10,000.00, to be charged against by the County based on the costs incurred by the
County for time spent processing the application, with said amount to be replenished if exceeded,
or a balance returned if not fully utilized.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the appeal of Opal Foods, LLC, be, and hereby is, granted, and the
assessment by the Department of Planning Services of an application fee in the amount of
$28,915.00 be reversed and remanded back to staff with instruction to accept a retainer, in the
amount of $10,000.00, to be charged against by the County based on the costs incurred by the
GG: PLC 7P/ram),
c,acSG) , Oft-PPL
o t i( (5ere- r e' 2017-4263
PL1007
RE: APPEAL CONCERNING APPLICATION FEE, USR-1092 (MUSR14-0014) - OPAL FOODS,
LLC
PAGE 2
County for time spent processing the application, with said amount to be replenished if exceeded,
or a balance returned if not fully utilized
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 20th day of December, A.D., 2017.
BOARD OF COUNTY COMMISSIONERS
WELD COJ,JNTY, COLORADO
ATTEST: ddriuk)
Weld County Clerk to the Board
BY:
Deputy Cler
APP: e ED AS
Attorney
Date of signature: C/ -!o —l?
A. Cozad, Chair
Steve Moreno, Pro-Tem
EXCUSED
Sean P. Conway
Mike Freeman
Barbara Kirkmeyer
2017-4263
PL1007
Memorandum
TO:
FROM:
CC:
DATE:
RE:
Board of County Commissioners
Tom Parko
Director, Dept. of Planning Services
Bob Choate, Asst. County Attorney
December 18, 2017
USR Fee
On December 20th, the Commissioner's will hear an appeal of a land use fee associated with an
expansion to a poultry facility. Staff cannot provide details of the case because it was determined that
the existing facility requires a major amendment, and therefore, will be scheduled for hearings in the
future.
The land use fee associated with the amendment is $28,915.00. The owner contacted the County and
wanted to kncw if the fee could be appealed. To be clear, the owner is not requesting a waiver of the
fee. The owner is willing to pay a fee but believes the fee is excessive and is asking that the
Commissioners accept an alternative.
Following consultation with the County Attorney's office, it was determined that the owner of could
appeal the Director's action under Chapter 2, Article IV, Section 2-4-10 of the Weld County Code.
The fee for the amendment is $28,915.00. The fee was assessed utilizing the animal unit table under
Chapter 23 and the current fee schedule found in Chapter 5, Appendix 5J of the Weld County Code.
Below is a breakdown:
According to Table 23.1A of the Weld County Code, the Animal Unit Equivalent (AUE) for poultry
in the Ag zone is .02. According to Chapter 23 of the Weld County Code 500 chickens are allowed
per acre on a parcel(s) 640 acres or more as a use by right. The use by right AU's (320,000) were
removed from the fee calculation.
2,970,000 chickens — 320,000 UBR chickens = 2,650,000 total chickens
2,650,000 x .02 AUF = 53,000
53,000 / 1,000 (Chapter 5; Appendix 5J) = 53
53x S500.00 (Chapter 5; Appendix 5J) _ S26,500
26,500 + $2,415 (base fee)
$28,915.00 application fee.
2017-4263
1
PLr1067
The owner is proposing to pay an upfront fee of $10,000 utilizing the escrow approach found under
Chapter 5, Appendix 5J (No. 29). This approach would allow staff to keep track of their time on the
application and draw down on the funds for time spent. If staff does not utilize all the funds for time
spent on the application the remaining balance would be returned. The owner would need to
replenish the account if the project exceeds initial balance.
The fee schedule has not been amended since 2008 and it's unclear how the fee for LCO's
(Livestock Confinement Operations (aka CAFO's) was determined. Poultry facilities of this size are
not common and to my knowledge this is the first poultry facility that has applied for an expansion
since the current fee table was adopted.
Utilizing the escrow approach on this amendment seems reasonable. It will allow staff to keep track
of their time spent and will assist with updating the fee table to accurately determine an appropriate
fee for future LCO's.
2
Chapter 23, Sec. 23-1-90.
Definitions.
ANIMAL UNIT: A term and number used to establish an equivalency for various species of
LIVESTOCK. The number of LIVESTOCK allowed by right is dependent upon bulk
requirements of the A (Agricultural), A-1 (Concentrated Animal), F, (Estate) or R-1 (Low -
Density Residential) Zone District. LIVESTOCK in excess of the bulk requirements for the
Agricultural Zone District shall require a Use by Special Review Permit for a LIVESTOCK
CONFINEMENT OPERATION. In the A-1 Zone District, the applicant shall specify the
maximum number of ANIMAL UNITS and species to be associated with the Livestock
Confinement Operation. All Livestock Confinement Operations in the A-1 Zone District require
a Site Plan Review and are subject to the Site Plan Review requirements outlined in Article II,
Division 3, of this Code. All LIVESTOCK shall have the following ANIMAL UNIT equivalents
and bulk requirements contained in Tables 23.1A, 23.1B, 23.1O and 23.1D below:
LIVESTOCK CONFINEMENT OPERATION (L. C. O): A place of confinement for
LIVESTOCK, corralled, penned or otherwise caused to remain in pens or corrals, where feeding
is other than grazing, or where the capacity at any one (1) time is greater than permitted in the
bulk requirements for the zoning district in which it is located. For example, an L.C.; ;o may
include DAIRIES, feedlots and poultry and swine production facilities.
Table 23.1A
Animal Units in the A (Agricultural) Zone District
Maximum Number of Animals per Acre
Animal Unit
Equivalents
Cattle 1
Number of
Animals
Equivalent to
One Animal
Unit
1
1
Bison 1 � 1
i,
Mule
Ostrich
ninsvAwarmrsensunwesveinteammeie.vtAnoumnaractsonvaWinow Ave
1
1
MOW
Less
Than
120
Gross
Acres
Less than 320
Gross Acres, r
Minimum of % of
I a Qua rter Section
Less than 640
Gross Acres, or
a Minimum of 14
of a Section
640 Gross Acres
or Greater, or a
Minimum of 1
Section
Elk
Horse
Yak
Camel
Swine
Sheep
Llama
Goat
Alpaca
Poultry
1
1
1
4
6
1
4
6
1
1
1
. 2
. 1
. 1
. 1
.075
.02
Rabbit
.02
4
6
1
4
6
5
20
30
10
40
10
10
13
50
40
40
52
200
50
200
60
8
8
8
10
10
10
8
10
40
80
60
80
60
80
78
300
300
104
400
50
100
100
100
130
500
400
500
APPENDIX 5-i - PLANNING FEE SCHEDULE 2012
1.
Land Use Application
Use by Special Review
k.svotilAw64.A.,,.:,
- Single-family dwelling units (other than those
permitted under Subsection 23-3-20.A.)
n4
- Expansion of a nonconforming use
teriolAvidreVarse
- Home business
- Animal boarding as permitted in Paragraph 23-3-
40.B.10
- Bed and breakfast facility
- Oil and gas storage facilities
n;v449 44ub a.✓owwwns%56;mwwr:ay.:ms k«wea.,,.an e.,.A,maue.......neSA.Awrinw..L.,.v..,wFn. _
- Mobile home for caretaker
- Accessory buildings with a gross floor area larger
than set forth in Subsection 23-3-40.O
- Composting facilities
Confined animal feedlot operation (LCO)
$2,415.00
Less than or equal to 1,000 animal units
Up to and including each additional 1,000 animal
units 1
- Sanitary sewer facility
- Mining permit
$2,415.00
$ 500.00
$10,000.00
$5,000.00 for the first 10 acres plus $20.00
per acre or fraction thereof in excess of 10
acres
- Solid waste disposal 2
$20,000.00
- Hazard waste disposal site $100,000.00
T.--
- Non -1041 major facility of a utility
$5,000.00
- 1041 facilities as defined in Chapter 21 of this
Code
$10,000.00
- All other use by special review permits $2,500.00
- Minor use by special review amendment
r---_ Weld Oil and Gas Land Assessment Permit
(WOGLA)
$500.00
$500.00
Planned Unit Development (1-9 lots)
- Sketch plan
- Change of zone
$1,500.00 plus $50.00 per buildable lot
- Final plat
$1,500.00 plus $100.00 per buildable lot 3
Planned Unit Development (10 or more lots)
- Sketch plan $5,000.00
- Change of zone
$3,000.00 plus $50.00 per buildable lot
- Final plat
$3,000.00 plus $100.00 per buildable lot 3
Minor Subdivision (1-9 lots)
- Sketch plan
$2,100.00
- Change of zone
$1,500.00 plus $50.00 per buildable lot
- Final plat $1,500.00 plus $100.00 per buildable lot 3
5.
Major Subdivision (10 or more lots)
- Sketch plan
- Preliminary plan
- Change of zone
- Final plat
Resubdivision
$5,000.00
$ 2,100.00
$3,000.00 plus $50.00 per buildable lot
$3,000.00 plus $100.00 per buildable lot 3
Each subdivision application and buildable
lot will be assessed an additional 30% fee if
the site is located in an urban growth
boundary, urban development node,
intergovernmental defined growth area
and/or mixed use land area, also for urban -
scale developments outside of an urban
area.
- Lot line changes only
- Vacation of roads, streets or alleys only
- Redesign, additional lots or vacation of lots
Subdivision Exemptions
- Used with recorded exemptions
- Property line adjustment
- Financing
- Temporary use
- Public and private utility
Recorded Exemptions (2-, 3- and 4 -lot)
$216.00
$216.00
$540.00
$180.00
$180.00
$180.00
$180.00
$400.00
- 2 lot RE
- 3 lot RE
$1,000.00
$1,300.00
- 4 lot RE
$1,600.00
- Amendments
$180.00
7.
Zoning Permit
- Mobile homes, manufactured homes, accessory
dwellings, temporary dwellings
r-----
- Temporary storage (6 months) of a mobile home
$300.00
- Change of use (if mobile home is existing)
$75.00
$75.00
Zoning Permit for Second Family Dwelling
Zoning Permit for Telecommunication Antenna Tower
$500.00
$500.00
10.
Zoning Permit for Noncommercial Tower
Zoning Permit for Home Occupation - Class II
$500.00
$300.00
!12.
11
14.
115.
Zoning Permit for Home Occupation - Class I
Zoning Permit for Wind Generator
Temporary Seasonal Permit
$ 50.00
$300.00
$75.00
Board of Adjustment
- Variance
$710.00
- Appeal
Change of Zone
$ 200.00
- Residential and agricultural uses $2,100.00 plus $150.00 per buildable lot
22.
- Commercial/industrial
Site Plan Review
$5,500.00 plus $150.00 per buildable lot
- Amendment $500.00
- Buildings <10,000 gross sq. ft. $1,300.00
- Buildings between 10,000-25,000 gross sq. ft.
17. I - Building >25,000 gross sq. ft.
- Tenant finish I $60.00
18. Substantial Change Hearing
19 Administrative Handling Fee - Special Request
120. Building Permit/Illegal Parcel
All site plan review applications will be
assessed a 40% fee if the site is located in an
urban growth boundary, urban development
node, intergovernmental defined growth
area and/or mixed use land area.
$2,000.00
$100.00
$250.00
21. I Investigation Fee 50% of the established application fee
A fee will be charged by the County to future
applicants when County staff members are asked to
assist professional consultants in the preparation of
land use applications. The fee shall be an hourly rate
charged in 15 -minute increments. The hourly rate
shall be calculated on a full cost recovery basis of the
County's costs for the staff positions involved in the
assistance. The full cost recovery rate shall be
determined by the Director of Finance and
Administration and shall include salary, fringe
benefits, support costs (services and supplies) and
indirect costs calculated in accordance with the
County -wide cost allocation plan per Federal OMB -87
methodologies. Preapplicants shall deposit an
estimated amount of the costs prior to the assistance.
A final settlement of costs will be determined by the
DPS once all the work has been completed.
23.
Incidental, Nontechnical Land Use Application
Assistance
24.
$50.00 per hour
Amendment to Any Regional Urbanization Area Map $1,500.00 minimum or $700.00 per parcel,
and Comprehensive Plan whichever is greater
Creation of a Regional Urbanization Area
$25.00 per acre
26.
Administrative Process
I
- Case continuance
p----- - Hearing continuance
$150.00
$ 500.00
- Recording continuance $50.00 per 3 months
27.
Additional Fees May Be Assessed to Cover Publication
Costs.
Market rate
28.
29.
Outside Consultant for Professional Review. Necessity
for Review to Be Determined by the Director.
For those applications for uses identified to be of high
complexity or intensity where a determination is
made that County staff will be committing time and
resources in excess of the established application fee,
the Department of Planning Services may request
that an applicant submit a fee in excess of the
identified fee. The applicant shall deposit an
estimated amount of the costs prior to assistance.
The fee will be held and charged against by the
County based on the standard hourly rate for each
department administering or reviewing the permit.
The departments shall include, but not be limited to,
the Department of Planning Services, Health
Department, Public Works and the County Attorney's
Professional rate
..z
Office. The standard hourly rate shall be established
by the Finance Department for the actual time spent
on the review of the application. The rate shall be
calculated on a full cost recovery basis of the County's
cost and shall include salary, fringe benefits, support
costs (services and supplies) and indirect costs
calculated in accordance with the County -wide cost
allocation plan per Federal OMB -87 methodologies.
The applicant shall be provided copies of the billing 5
days prior to the cost actually being billed. The
applicant's sole remedy to appeal any billing shall be
to the Board of County Commissioners. The unused
portion of the submitted application fee shall be
returned to the applicant within 30 days of recording
the Special Review plan map, within 30 days after
denial of the application by the Board of County
Commissioners, or 30 days after the applicant
submits a written request to withdraw the
application.
1 Animal units as defined in Section 23-1-90 of this Code.
2 The fee to amend an application for a Special Review Permit for Solid Waste Disposal Sites and
Facilities shall not exceed $20,000.00. The full amount shall be submitted to the Department of Planning
Services at the time a complete application is submitted. The fee will be held and charged against by the
County based on the standard hourly rate for each department administering or reviewing the permit. The
departments shall include, but not be limited to, the Department of Planning Services, Health Department,
Public Works and the County Attorney's Office. The standard hourly rate shall be established by the Weld
County Finance Department for the actual time spent on the review of the application and facility. The
rate shall be calculated on a full cost recovery basis of the County's cost and shall include salary, fringe
benefits, support costs (services and supplies) and indirect costs calculated in accordance with the
County -wide cost allocation plan per Federal OMB -87 methodologies. The applicant shall be provided
copies of the billing 5 days prior to the cost actually being billed. The applicant's sole remedy to appeal
any billing shall be to the Board of County Commissioners. The unused portion of the submitted
application fee shall be returned to the applicant within 30 days of recording the amended Special Review
plan map, within 30 days after denial of the application by the Board of County Commissioners, or 30
days after the applicant submits a written request to withdraw the application.
3 25% of this fee is due at the time of application, and the remaining 75% due at the time of building
permit issuance.
Development Impact Fees
1. Road Impact Fee
Fee Schedule in Chapter 20 of this Code.
2. County Facilities Impact Fee
3. Drainage Impact Fee
Fee Schedule in Chapter 20 of this Code.
Fee Schedule in Chapter 20 of this Code.
(Weld County Code Ordinance 2001-8; Weld County Code Ordinance 2002-10; Weld County
Code Ordinance 2004-10; Weld County Code Ordinance 2005-7; Weld County Code Ordinance
2007-7; Weld County Code Ordinance 2008-17; Weld County Code Ordinance 2009-13 ; Weld
County Code Ordinance 2010-9 ; Weld County Code Ordinance 2010-11 ; Weld County Code
Ordinance 2011-2 ; Weld County Code Ordinance 2011-12 ; Weld County Code Ordinance 2012-3
; Weld County Code Ordinance 2016-13 )
Chapter 2, Article IV, Sec. 2-4-10.
Appeals process.
The Board of County Commissioners shall act as a board of appeals to hear
complaints on actions taken by County boards, commissions and departments. Except
for decisions made by the Board of Adjustment and Uniform Building Code Board of
Appeals, procedure for appeals shall be as set forth in this Chapter, by resolution of the
Board, or as otherwise provided by law.
A. Any person appealing an action by a County board, commission or department
to the Board of County Commissioners shall file such a complaint, in writing,
with the Clerk to the Board within sixty (60) days of the incident in question.
Appeals concerning purchases or procurements made in accordance with
Chapter 5, Article IV, of this Code shall be filed within five (5) days of the
incident in question.
B. Such complaint shall include:
1. The name of the employee, board, commission or department against
which the complaint is made.
2. A description of the basic facts involved in the complaint.
C. The Clerk to the Board shall schedule a hearing with the Board of County
Commissioners, to be held within fifteen (15) days of the filing of the complaint,
and shall notify all parties involved in the incident.
D. The Board of County Commissioners shall hear all the available facts pertinent
to the incident, may schedule a second hearing within thirty (30) days following
the initial hearing if the Board determines such a need, and shall render a
determination within thirty (30) days of the final hearing.
E. No person shall be denied the right to appeal, provided that he or she complies
with the administrative procedures established by the Board.
(Weld County Codification Ordinance 2000-1; Weld County Code Ordinance 2016-14 )
AGPROfessionals
no DEVELOPERS OF AGRICULTURE
December 7, 2017
Ms. Esther Gesick
Clerk to the Board
1150 O Street
Greeley, Colorado 80631
RE: Application Fee Appeal
Opal Foods, LLC
AGPRO Project # 2509-09
Dear Ms. Gesick:
Opal Foods, LLC is requesting an appeal to the Board of County Commissioners to reduce the
land use (USR) application fee associated with the expansion to USR 1092 (MUSR14-0014) to
expand production from 1,530,000 million birds to 4,500,000 million birds. The amendment also
accommodates twenty-four (24) new in -line poultry barns (depending on future density
requirements), a processing plant, feed mill and grain storage and appurtenances associated with
a commercial egg facility. Weld County Staff determined that this expansion requires a major
amendment as outlined under PRE17-0251.
The Weld County Planning Director has determined a review fee of $28,915.00 for this
amendment based on the enclosed email.
The original USR for the poultry facility was approved in 1995 and has been in continuous
operation for over twenty years with no land use complaints or violations. Land use application
fees, in most cases are less than $10,000 (with the exception of Solid and Hazardous Waste
Disposal Sites which are $20,000 and $100,000, respectively).
The Weld County Comprehensive Plan states that we should have "Respect for Our Agricultural
Tradition." Weld County is one of the most economically productive agricultural producing
counties in the nation and yet the land use fees for Concentrated Animal Feeding Operations
(CAFO) can be, based on animal units, more than Solid Waste, 1041 facility or Sanitary Sewer
facilities. The Weld County Comprehensive plan also states that it is important that the
established agricultural businesses and associated infrastructures are allowed to continue to
operate without adding excessive constraints. Individuals who move into these areas must realize
that they will experience conditions and services unlike an urban setting and must be willing to
accept this lifestyle. The Weld County Right to Farm Statement can be found as part of the
Agriculture goals and policies and, as a part of the Comprehensive Plan, supports the importance
of agriculture in the County. The fees associated with amending an existing CAFO USR do not
reflect the importance of agriculture in Weld County.
ENGINEERING, PLANNING, CONSULTING & REAL ESTATE
3050 67`h Avenue, Greeley, CO 80634
970.535.9318 / office O 970.535.9854 / fax ❑ www.agpros.com
Page 2 of 2
Opal Foods believes that the fee associated with amending an existing USR is excessive and not
in line with the actual costs associated with processing an Amended USR application. Opal
Foods requests that the Board of County Commissioners review the fee requirements and
provide direction to the Planning Director for an alternative fee reflective of the realistic costs to
amend the existing USR.
Opal Foods will provide a $10,000 retainer to be held and charged against by the County based
on the costs incurred by the County for processing the application. This process is described in
Item 29, Appendix 5-J Planning Fee Schedule in the Weld County Code. This is common in
most municipalities in Weld County. A second option would be to limit the CAFO fees to
$10,000 which is the equal to the application fee for a 1041 facility and more than the majority
of USR application fees.
AGPROfessionals will be representing Opal Foods, LLC. Please remit responses to
AGPROfessionals. If you have any questions, please contact me at (970) 535-9318.
Planning and Government Relations Manager
Enclosure
CC: Tom Parko
Brock Peterson
Tim Naylor
From:
Sent:
To:
Cc:
Subject:
Dear Tim,
Tom Parko Jr. [tparko@weldgov.com]
Monday, December 04, 2017 12:47 PM
Tim Naylor
Michelle Martin
USR Fee for Poultry Expansion
This email is in response to your objection to the land use (USR) fee associated with the expansion to USR
1092 to go from 1,530,000 million birds to 4,500,000 million birds. The amendment also accommodates
twenty-four (24) new in -line poultry barns (depending on future density requirements), a processing plant, feed
mill and grain storage and appurtenances associated with a commercial egg facility. Staff deteiniined that this
expansion requires a major amendment as outlined under PRE17-0251.
The fee for this amendment is $28,915.00. Below is a breakdown:
Staff is not going to include the 1,530,000 birds already permitted under USR 1092 so we are dealing with a
total of 2,970,000 birds. Under Table 23.1A of the Weld County Code, the Animal Unit Equivalent (AUE) for
poultry in the Ag zone is .02. According to Chapter 23 of the Weld County Code you can have 500 chickens per
acre on a parcel(s) 640 acres or more. Under this provision, you can have 320,000 chickens as a use by right so
we factored that out and came to a total of 2,650,000. (2,970,000 — 320,000).
2,650,000 x .02 AUE = 53,000
53,000 / 1,000 (Chapter 5; Appendix 5J) = 53
53x $500.00 (Chapter 5; Appendix 5J) = $26,500
$26,500 + $2,415 = $28,915.00
I do not have the authority to waive, modify or adjust this fee and there isn't a process in the code to address
your request. With that said, following consultation with the County Attorney's office, you can appeal my
decision under Chapter 2, Article IV; Section 2-4-10.A. Your appeal should be in writing and addressed to the
County Commissioners with a copy to Clerk to the Board, do Esther Gesick and Tom Parko, Planning Dept.
Upon receipt of the appeal (complaint) the Clerk to the Board will place the item on the
Commissioner's 9am agenda under "Planning Matters". You will be notified of the date of the meeting.
Please feel free to call or email me with any questions.
Sincerely,
Tom Parko
Sent from my iPhone
i
Hello