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Home My WebLink About20163108.tiffAMENDED RESOLUTION (This Amended Resolution is for the purpose of complying with the Court's Order of Remand in the case of Motherlove Herbal Company, et al, v. The Board of County Commissioners of Weld County, et al, Case No. 2015 CV 30776, wherein the Court's directive was for the Board to amend its Resolution of August 12, 2015, so as to include in a more complete Findings of Fact supporting the Board's decision.) RE: APPROVE AN AMENDMENT TO A SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT, USR15-0027 (FORMERLY KNOWN AS USR-1584) FOR ANY USE PERMITTED AS A USE BY RIGHT, ACCESSORY USE, OR USE BY SPECIAL REVIEW IN THE COMMERCIAL OR INDUSTRIAL ZONE DISTRICTS (CONSTRUCTION BUSINESS WITH TWO SHOP BUILDINGS, OFFICE BUILDINGS, AND OUTDOOR STORAGE) 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 TO INCLUDE A MINERAL RESOURCE DEVELOPMENT FACILITY, INCLUDING ASPHALT AND CONCRETE BATCH PLANTS (MATERIALS PROCESSING) AND TRANSLOADING IN THE A (AGRICULTURAL) ZONE DISTRICT - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA 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, the Board of County Commissioners held a public hearing on the 12th day of August, 2015, at the hour of 9:00 a.m., in the Chambers of the Board, for the purpose of hearing the application of Weld LV, LLC, 3821 Derby Trail, Round Rock, TX 78681, and Gerrard Investments, LLC, 27486 CR 13, Loveland, CO 80534, c/o Martin Marietta, 10170 Church Ranch Way, Suite 201, Westminster, CO 80021, for an Amendment to a Site Specific Development Plan and Use by Special Review Permit, USR15-0027 (formerly known as USR-1584) for any Use permitted as a Use by Right, Accessory Use, or Use by Special Review in the Commercial or Industrial Zone Districts (construction business with two shop buildings, office buildings, and outdoor storage) 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 to include a Mineral Resource Development Facility, including asphalt and concrete batch plants (materials processing) and transloading in the A (Agricultural) Zone District, on the following described real estate, being more particularly described as follows: Lot B of Recorded Exemption, RE -2803; being part of the SW1/4 and SE1/4, and a tract being part of the SW1/4, all in Section 18, Township 5 North, Range 67 West of the 6th P.M., Weld County, Colorado WHEREAS, at said hearing, the applicant was present, and represented by Carolynne White, Attorney, and Pam Hora, Tetra Tech, 1900 S. Sunset St., Suite 1E, Longmont, CO 80501, and, WHEREAS, Section 23-2-230 of the Weld County Code provides standards for review of said Use by Special Review Permit, and t,c PLC. OCA NF3), ca. c qt3) PWCSL), EnVC(--),PLC mm) I 1 I Li / 1 fo 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, O/O MARTIN MARIETTA PAGE 2 WHEREAS, the Board of County Commissioners heard all of the testimony and statements of those present, studied the request of the applicant and the unfavorable recommendation of the Weld County Planning Commission and all of the exhibits and evidence presented in this matter and, having been fully informed, finds that this request shall be approved for the following reasons: 1. The submitted materials are in compliance with the application requirements of Section 23-2-260 of the Weld County Code. 2. It is the opinion of the Board of County Commissioners that the applicant has shown compliance with Section 23-2-230.B of the Weld County Code as follows: A. Section 23-2-230.B.1 -- The proposed use is consistent with Chapter 22 and any other applicable Code provisions or ordinances in effect. Section 22-2-20.G (A.Goal 7) states: "County land use regulations should protect the individual property owner's rights to request a land use change." A.Policy7.1 states: "County land use regulations should support commercial and industrial uses that are directly related to, or dependent upon, agriculture to locate within agricultural areas, when the impact to surrounding properties can be mitigated and where adequate services are currently available or reasonably obtainable." A.Policy 7.2 says: "Conversion of agricultural land to non -urban residential, commercial and industrial uses should be accommodated when the subject site is in an area that can support such development, and should attempt to be compatible with the region." z 8 Ta C y 7 � V O w •3� L-� 44. w m - o 012 =le �°_-IN d 13 -I c a o_Nm� No CDm= ■ a` �p N o "V N`— 4- 0 The proposed use is in an area that can support development and it is compatible with the region. It is situated on two parcels, a portion of which will remain as irrigated grassland. Adjacent surrounding land uses include a permitted industrial construction business and storage yard, a permitted commercial wedding business and event venue, agricultural uses, residences, and open areas. The region along the U.S. Highway 34 corridor, within the three (3) mile referral area, is converting to commercial and industrial land uses. Adequate services are available to the proposed use. The site is approximately one-half mile south of Highway 34, about two (2) miles west of Interstate 25, just off of County Road (CR) 13. At full buildout, in 2035, the average daily trips to the site will be 2,260, with initially daily trips averaging 1,120. County Road 13 is a paved arterial and is designed to handle up 17,000 daily trips. Water and septic are also available to the site. The proposed use is next to two (2) major rail lines and is immediately adjacent to the Union Pacific rail line. Therefore, it complies with Section 22-2-80.A (I.Goal 1), which promotes industrial uses "along railroad infrastructure or where adequate services are currently available or reasonably attainable." 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA PAGE 3 The seven (7) Conditions of Approval and 42 Development Standards will mitigate the impacts of the proposed use on the adjacent properties and ensure compatibility with surrounding land uses. Through the Improvements and Road Maintenance Agreement, the County will ensure the development pays for improvements to CR 13 and Highway 34, which will include traffic signalization at the intersection. The agreement will also include conditions for maintenance, dust control, damage repair, specified haul routes and future traffic triggers for additional improvements. It will require the applicant to: 1) construct auxiliary turn lanes at the intersection of CR 54 and CR 13 when certain triggers are met; 2) construct a southbound left deceleration lane and a northbound right acceleration lane and a northbound right deceleration lane on CR 13 at the facility entrance; and 3) upgrade the existing auxiliary turn lanes on Highway 34 as required by CDOT. Through the Improvements and Road Maintenance Agreement, Section 22-2-80.D (I.Goal 4) will be satisfied, which encourages industrial development to "pay its own way." 3 8 MIMI 3 - MU 13 Bm • m O • w�U LL Q ▪ Nai N c�� '••1 m r+m a1 • N o O)�Y� O)' 4 N -▪ . -.ii The proposed use is consistent with Section 22-2-20.B (A.Goal 2 and (A.Policy 2.2), which encourages commercial and industrial uses directly related to or dependent upon agriculture. The proposed use will maintain and promote agriculture. It will supply aggregate to construct and maintain farm -to -market roads. Aggregate, asphalt and concrete from the proposed use will also be used for the construction of dikes, spillways, ditch liners, feed areas, processing plants, irrigation structures, loafing sheds, dairy parlors and runoff control on farms, and to build and maintain roads used to get agricultural products to markets. The proposed use is consistent with Section 22-2-20.H (A.Goal 8, A.Policy 8.3, and A.Policy 8.4), which require that adequate services and facilities, especially roadways and stormwater management, be available or obtainable to accommodate land use changes for more intensive development. Currently, and with the required improvements, CR 13 and Highway 34 will have adequate width, classification and structural capacity to serve the vehicles accessing the proposed use. There will be adequate stormwater drainage to accommodate the proposed use. The applicant's Final Drainage Report shows drainage measures for the property which detain runoff/stormwater and include required water quality features to meet state and county requirements for runoff/stormwater. The proposed use is consistent with Section 22-2-20.1 (A.Goal 9, A. Policy 9.2, A.Policy 9.3, and A.Policy 9.5). Those encourage the reduction of potential conflicts between varying land uses in the conversion of traditional agricultural lands to other land uses, and the use of mitigation to address potential incompatibility issues. The seven (7) Conditions of Approval and 42 Development Standards include mitigation measures on 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, O/O MARTIN MARIETTA PAGE 4 many aspects of the proposed operation, which will reduce the potential for conflict with surrounding land uses, including berming, landscaping, fencing and design features of the structures. The proposed use is consistent with the County's "Right to Farm" policy in Section 22-2-20.J (A.Goal 10), which provides: "Agricultural users of the land should not be expected to change their long-established agricultural practices to accommodate the intrusions of urban users into a rural area." The policy does not prevent the conversion of farmland to other uses. Instead, it puts new residential users on notice that there are agricultural uses in the vicinity that may impact their urban and suburban lifestyles. B. Section 23-2-230.B.2 -- The proposed use is consistent with the intent of the A (Agricultural) Zone District. Section 23-3-10 states one of the intents of the A (Agricultural) Zone District is "to provide areas for the conduct of USES by Special Review which have been determined to be more intense or to have a potentially greater impact than USES Allowed by Right." Section 23-3-40.A.4 and 7 allow a USR permit in the A (Agricultural) Zone District for "Mineral resource development facilities including: 4. asphalt and concrete batch plants...7. TRANSLOADING." The proposed use will be an asphalt plant, concrete plant and transloading facility. It will produce materials used in agriculture and directly for agriculture. This includes aggregate for roads which will allow the agricultural community to get their product from farm to market. The materials will also be used to build infrastructure used in agriculture. Thus, the proposed use is consistent with the intent of the A (Agricultural) Zone District. C. Section 23-2-230.B.3 -- The uses which will be permitted will be compatible with the existing surrounding land uses. Adjacent surrounding land uses include an existing, permitted industrial construction business and storage yard, permitted commercial wedding business and event venue, agricultural uses, residences, and open areas. A series of maps submitted by the applicant, based on County zoning designations, show how the region along the Highway 34 Corridor and the three (3) mile referral area includes a significant number of commercial and industrial land uses. The area is likely to become more commercial and industrial, mainly because of the transportation and rail infrastructure. Traffic generated from the proposed use will not significantly, adversely affect existing surrounding land uses. The proposed use is expected to be 1,120 daily trips; 2,260 daily trips are anticipated at buildout in 2035. County Road 13 is built to handle up to 17,000 daily trips. The nearby residential subdivision generates 990 daily trips currently. Traffic volume currently on Highway 34 is 42,000 daily trips. Future permitted development at Highway 34 and CR 13 is projected to generate 4249961 Pages: 4 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 5 approximately 28,000 additional daily trips. The additional traffic generated from the USR site will be mitigated through the following actions of the applicant: 1) construction of auxiliary turn lanes at the intersection of CR 54 and CR 13 when certain triggers are met; 2) construction of a southbound left deceleration lane and a northbound right acceleration lane and a northbound right deceleration lane on CR 13 at the facility entrance; 3) upgrade of the existing auxiliary turn lanes on Highway 34 as required by CDOT; 4) construction of improvements at railroad tracks; and 5) signalization of the intersection at Highway 34 and CR 13. Additional traffic expected from the site onto Highway 34 is minimal - approximately three percent (3%) of the total volume. The proposed use is uniquely suited for the area, being located next to two (2) major rail lines, and immediately adjacent to the Union Pacific rail line. The seve (7) Conditions of Approval and 42 Development Standards will not only ensure, but enhance the compatibility with existing, surrounding land uses by mitigating any issues. Even though the nearest home to the facility is approximately 1,000 feet away, noise has been mitigated to be at the residential standard of 55/50 dB(A). An extensive Landscaping, Buffering and Screening Plan will be required on the site, including landscaping on neighboring properties. Dust will be controlled on the site. The entryway to the site and key areas of visual concern will be mitigated with landscaping, decorative fencing and painting of the buildings with earth -tone colors. Hours of operation are consistent with traditional farming practices and the majority of the general public's work hours. D. Section 23-2-230.B.4 -- The uses which will be permitted will be compatible with future development of the surrounding area, as permitted by the existing zoning, and with the future development, as projected by Chapter 22 of the Weld County Code and any other applicable code provisions or ordinances in effect, or the adopted Master Plans of affected municipalities. Maps submitted by the applicant show the proposed use is located in an area with many surrounding properties zoned or permitted for commercial and industrial uses. The maps demonstrate the proposed use is compatible with future development in the area, as evidenced by the substantial number of properties in the vicinity designated as industrial or commercial use. The area is also suitable for commercial and industrial uses because of the road infrastructure and the Union Pacific and Great Western rail lines in the area, which support industrial uses, including the proposed use. Additionally, there is a high likelihood that existing transportation infrastructure will attract more commercial and industrial development in the area. 4249961 Pages: 5 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII PaliViulliE IM M O:I:14110al1R K 11111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 6 The site is located on the Highway 34 corridor. The corridor has an approved Access Management Plan. The site is not located in the Windsor Planning Area or the City of Greeley's Growth Management Area, nor is it in Greeley's proposed annexation area. The Town of Johnstown has a Comprehensive Land Use Plan that is from 2006. This site is located within the three (3) mile referral areas of the Town of Windsor, the Town of Johnstown, City of Greeley and the City of Loveland. The proposed use is outside of Loveland's Growth Management Area. There is an existing Intergovernmental Agreement (IGA) among Weld County, Larimer County, Greeley, Johnstown, Loveland, Windsor and CDOT for the Highway 34 corridor, which includes an Access Management Plan and discusses planned future development along the corridor and area. The proposed use is consistent and compatible with the long range plans of CDOT and the IGA, which calls for signalization at Highway 34 and CR 13 and, ultimately, the construction of an interchange at this location. Greeley's 2060 Master Plan recognizes the importance of putting industrial uses along rail lines. The Greeley City Council, in a letter dated May 27, 2015, urges careful consideration, but generally supports the application for the proposed use. Windsor has no plans to annex south of Highway 34; however, they have approved and are planning commercial and industrial developments in the Highway 34 Corridor. Johnstown has not updated its Comprehensive Plan in over nine (9) years. The State statute requires review and updates of such plans at least every five (5) years to ensure local governments are planning for future growth and utilities. Johnstown's Town Planner stated the Town believes they can provide sewer to the area. In the last two years, Johnstown has approved a multi -use commercial and residential development and a truck parking and transload facility at the Highway 34 and CR 13 intersection. Also located in Johnstown and along the Highway 34 corridor is the Ironhorse Industrial Park. Section 22-2-20.G.3 (A.Policy 7.3) states: ". . .A municipality's adopted comprehensive plan should be considered, but should not determine the appropriateness of such conversion [of agricultural land to another use]." The applicant's Transportation Impact Study was reviewed by the City of Loveland and met the Larimer County Urban Area Street Standards requirements for scope of analysis. E. Section 23-2-230.B.5 — The proposed use is not located within an Overlay District Area or a Special Flood Hazard Area identified by maps officially adopted by the County. 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA PAGE 7 F. Section 23-2-230.B.6 -- The applicant has demonstrated a diligent effort to conserve prime agricultural land in the locational decision for the proposed use. The applicant has made an effort to conserve prime farmland through the configuration of its site. The proposed use will cover only a portion of the overall property, some of which was taken out of agricultural production previously with the approval of USR-1584. A significant portion of the property (30 acres) will remain open with irrigated grassland and will be recoverable into agriculture production. The 30 acres will also be used as a buffer to adjacent properties. By clustering the industrial activities on the site as far west as possible, and preserving a substantial portion of the site, the applicant has shown diligent efforts to preserve as much prime farmland as possible. The Board does not interpret the requirement that an applicant make a diligent effort to conserve prime farmland as a mandate that prime farmland may never be converted to any other use. The Board must balance the goal of preserving prime farm land with its other goals for the development of Weld County. The 1979 Soil Conservation Service Important Farmlands of Weld County Map, which designates the proposed site as prime farmland, also designates that area where the Indianhead Estates Subdivision is now located as prime farmland. The proposed use is dependent upon being located adjacent to adequate road infrastructure and rail. The site is in an area that is transitioning to industrial and commercial uses due to extensive road infrastructure and the location of rail. This makes the site ideal for the location of the proposed use. G. Section 23-2-230.B.7 -- The Design Standards (Section 23-2-240, Weld County Code), Operation Standards (Section 23-2-250, Weld County Code), Conditions of Approval, and Development Standards ensure that there are adequate provisions for the protection of the health, safety, and welfare of the inhabitants of the neighborhood and County. The seven (7) Conditions of Approval and 42 Development Standards governing the proposed use will ensure there are adequate provisions for the protection of the health, safety and welfare of the inhabitants of the neighborhood and the County. The Conditions of Approval and Development Standards will ensure the proposed use does not cause disruption to the nearby residential properties. Many of the Development Standards include compliance with state and federal requirements, including the Solid Waste Disposal Sites and Facilities Act, Colorado Air Quality Regulations, rules of the Colorado Water Quality Control Division, and adherence to the Colorado Department of Labor and Employment, 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 8 Division of Oil and Public Safety Underground and Above Ground Tank Regulations. Hours of operation have been restricted to be consistent and compatible with traditional farming practices in the area and with the majority of the general public's work hours. There are limited hours on Saturday and no hours of operation on Sundays. The facility may operate at night, only when material is requested by cities, counties, or CDOT for night paving projects, but no more than three (3) times per month and requires advanced notice to the Weld County Planning Services Director for any night operations. There is a requirement that landscaping and screening be installed and maintained on the site, which will act as a buffer between the proposed use and nearby properties. Landscaping will include clumps of deciduous and evergreen trees around the perimeter, as well as proposed screening berms which will have vegetative cover. Also required is the establishment of a $100,000 fund for landscaping on neighboring properties, and the creation of a Community Working Group to address, among other things, how the fund should be spent. One of the Development Standards requires that historic flow patterns and runoff amounts must be maintained on the site. Fugitive dust must also be controlled on the site. The applicant is required to adhere to its Dust Abatement Plan. The proposed use must comply with the Air Pollution Emission Notice permit requirements. The applicant's air study shows that air emissions from the proposed use at the property boundary and nearby residences will be below the National Ambient Air Quality Standards (NAAQS) and all other required air emission standards. According to the applicant's air expert, metals coming out of the facility will not adversely affect an adjacent organic farm. Additionally, Dr. Scott Phillips, a medical toxicologist, testified that the emissions from the site will not cause acute or chronic health effects. Compliance with a Spill Prevention, Control and Countermeasure Plan is required. Washing areas must capture all effluent and prevent discharges in accordance with the Colorado Water Quality Control Commission and the Environmental Protection Agency (EPA). The proposed use must adhere to maximum permissible noise levels of 55 dB(A) during the day and 50 dB(A) at night at adjacent residential lots. This is a higher standard (residential) than the one for industrial. The applicant is required to have a Noise Mitigation Plan, which includes monitoring. Should the monitoring find that the facility exceeds the allowed levels, the applicant must then identify the source and take corrective 4249961 Pages: 8 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO II 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA PAGE 9 actions. The applicant will be subject to penalties imposed by the CDPHE if the noise violations are not corrected. The proposed use must meet odor standards as determined by state rules (7 to 1 dilution for odors detected off -site). The asphalt plant is required to operate with vertical liquid AC storage tanks, carbon liners, and an emission capturing system. A certified "Nasal Ranger" is required to be on -site whenever the asphalt plant is operating. Sources of light must not shine directly onto adjacent properties to the extent it would cause a nuisance or interfere with the uses on those properties. All light poles are limited to a height of 25 feet. The applicant is required to submit an Emergency Action and Safety Plan developed in conjunction with the Front Range Fire Rescue Authority and the Weld County Office of Emergency Management. The applicant is required to comply with the Plan. The applicant must submit a Decommissioning Plan that requires after termination of operations restoration of the property to its condition which existed prior to the commencement of the operation. The applicant is required to enter into an Improvements and Road Maintenance Agreement which will require conditions for maintenance, dust control, road damage repair, specified haul routes, and future traffic triggers for additional improvements. There is a requirement that certain infrastructure improvements will begin immediately. These infrastructure improvements will accommodate increased traffic from the proposed use and will enhance safety. One of the Development Standards includes requirements related to the appearance of the buildings on the site. 3. The Board of County Commissioners disagrees with the the conclusions of the Department of Planning Services and the recommendation of the Planning Commission that the proposed use is inconsistent with the County's Comprehensive Plan, for the following reasons: A. Staff and Planning Commission concluded that the proposed use does not comply with Section 22-2-20.G.1 (A.Policy7.1), because it does not directly pertain to agriculture and it will remove 90 acres of prime farmland from production. Instead, the Board finds that the proposed use is directly related to agriculture. The facility will be a major source of aggregate, concrete and asphalt in Weld County. Aggregate will be used for construction of farm to market roads and will be used on farms, for feed areas, processing plants and other facilities. Concrete and asphalt produced at the site will also be available to build barns, feed areas, agricultural processing plants and roads to access those facilities. 4249961 Pages: 9 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO NF Int L 1111111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 10 Additionally, Section 23-3-10 says one of the intents of the A (Agricultural) Zone District is "to provide areas for the conduct of USES by Special Review which have been determined to be more intense or to have a potentially greater impact than USES Allowed by Right." Section 23-3-40.A.4 and .7 allow a USR permit in the A (Agricultural) Zone District for "Mineral resource development facilities including: 4. asphalt and concrete batch plants...7. TRANSLOADING." The proposed use will be an asphalt plant, concrete plant and transloading facility. It may be allowed to operate in the A (Agricultural) Zone District through the granting of a USR permit. So the proposed use is consistent with the intent of the A (Agricultural) Zone District. B. The Board disagrees with Staff's and Planning Commission's conclusion that the proposed use should be denied because it does not adequately preserve prime farmland. A portion of the property was previously taken out of agricultural production through the granting of USR-1584. Additionally, the proposed use will retain 30 acres in native grassland, which may be used for agricultural production in the future. By clustering the industrial activities on the site as far west as possible, and preserving a substantial portion of the site, the applicant has shown diligent efforts to preserve as much prime farmland as possible. The Board does not interpret the requirement that an applicant make a diligent effort to conserve prime farmland as a mandate that prime farmland may never be converted to any other use. There must be a balance between the goal of preserving prime farm land and other goals for the development of Weld County. The Board believes Staff and the Planning Commission did not adequately take this into consideration. C. The Board disagrees with Staff's and Planning Commission's conclusion that the proposed use is inconsistent with Section 22-2-20.G.2 (A.Policy7.2). The Board concludes that the proposed use is in an area that can support such development and, therefore, is consistent with A.Policy7.2. The region and, in particular, the Highway 34 corridor, is becoming increasingly commercialized and industrialized. It is clear that it can support the proposed use and is well suited for that purpose. The site is adjacent to the Union Pacific Railroad line and County Road 13. It is also one-half mile south of Highway 34 and close to Interstate 25. Furthermore, there will be extensive mitigation imposed through the seven (7) Conditions of Approval and 42 Development Standards to enable the proposed use to be compatible with existing surrounding land uses. D. Staff and Planning Commission found that the proposed USR was inconsistent with Section 22-2-80.C.2 (I.Policy 3.2), which requires a demonstration that roadway facilities associated with the proposed industrial development are adequate. The Board disagrees. County Road 13 is built to arterial standards and can handle 17,000 daily trips. Additionally, the seven (7) Conditions of Approval and 42 Development 4249961 Pages: 10 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO II 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 11 Standards require that upgrades be made to certain roadways and railroad crossing (if warranted) through the Improvements and Road Maintenance Agreement. Such improvements will ensure compliance with I.Policy 3.2. 4. The Board finds that the studies submitted by the applicant were not refuted by any County staff or any person providing public testimony. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the application of Weld LV, LLC, and Gerrard Investments, LLC, c/o Martin Marietta, for an Amendment to a Site Specific Development Plan and Use by Special Review Permit, USR15-0027 (formerly known as USR-1584) for any Use permitted as a Use by Right, Accessory Use, or Use by Special Review in the Commercial or Industrial Zone Districts (construction business with two shop buildings, office buildings, and outdoor storage) 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 to include a Mineral Resource Development Facility, including asphalt and concrete batch plants (materials processing) and transloading in the A (Agricultural) Zone District, on the parcel of land described above be, and hereby is, granted subject to the following conditions: 1. Prior to recording the map: A. An Improvements and Road Maintenance Agreement is required for off -site improvements at this location. Road maintenance, including dust control, damage repair, specified haul routes and future traffic triggers for improvements will be included. The Improvements and Road Maintenance Agreement shall include requirements related to the appearance of buildings on the site, based on consultation by the applicant with the Community Work Group, established by the applicant. 1) The haul route shall be north to U.S. Highway 34 and south to CR 54. 2) The applicant will be responsible for the installation of auxiliary lanes at the intersection of CR 54 and CR 13 when triggers are met. A southbound right turn lane will be required when 25 vehicles per hour (vph) turn right onto CR 54 during a peak hour. A westbound right deceleration lane will be installed on CR 54 when 25 vph turn right onto CR 13 during a peak hour. B. A Final Drainage Report and Certification of Compliance, stamped and signed by a Professional Engineer registered in the State of Colorado, is required. C. Union Pacific shall apply for a railroad diagnostic for the crossings of CR 13, CR 15, CR 52, and CR 17. The railroad diagnostic will determine if there is a safety issue with the increase of train traffic at these locations that would require the installation of crossing arms or signals. If any improvements are required at any of these locations as a direct result of 4249961 Pages: 11 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 11111 II I 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, 0/O MARTIN MARIETTA PAGE 12 the additional trains visiting the Highway 34 Development, Martin Marietta will be responsible for the local portion (Weld County) of the project cost. D. The applicant shall attempt to address the requirements of CDOT, as stated in the referral response dated July 6, 2015. Evidence of such shall be submitted, in writing, to the Weld County Department of Planning Services. E. The applicant shall attempt to address the requirements of the Weld County Department of Public Works, as stated in the referral response dated July 6, 2015. Evidence of such shall be submitted, in writing, to the Weld County Department of Planning Services. The applicant is required to construct the following roadway improvements: 1) Installation of a southbound left deceleration lane at the facility entrance. 2) Installation of a northbound right acceleration lane at the facility entrance. 3) Installation of a northbound right deceleration lane at the facility entrance. 4) Installation of a traffic signal at the intersection of CR 13 and U.S. Highway 34. 5) Upgrade of the existing auxiliary turn lanes on U.S. Highway 34. The turn lanes will be brought up to standard for length, taper, and storage, unless waived by CDOT. F. The applicant shall address the requirements (concerns) of the Weld County Department of Building Inspection, as stated in the referral response dated June 4, 2015. Evidence of such shall be submitted, in writing, to the Weld County Department of Planning Services. G. The applicant shall attempt to address the concerns of the Northern Colorado Water Conservancy District, as stated in the referral response dated May 1, 2015. Evidence of such shall be submitted, in writing, to the Weld County Department of Planning Services. H. The map shall be amended to delineate the following: 1) All sheets of the map shall be labeled USR15-0027. 2) The attached Development Standards. 3) The map shall be prepared per Section 23-2-260.D of the Weld County Code. 4249961 Pages: 12 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 0,144Milk I Bill 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 13 4) The applicant shall delineate the trash collection areas. Section 23-3-350.H of the Weld County Code addresses the issue of trash collection areas. 5) Delineate the approved landscaping/screening. Landscaping/ screening shall include, at a minimum, decorative fencing in key areas based upon the applicant's consultation with the Community Work Group. 6) Delineate the lighting for the site. All light poles are limited to a maximum of 25 feet in height. 7) The parking areas shall adhere to Appendices 23-A and 23-B of the Weld County Code. 8) Show and label the approved access(es), turning radii, and access permit number(s). 9) Show and label the entrance gate setback a minimum of 100 feet from the edge of shoulder. 10) Show and label all off -site auxiliary lane improvements at the access location. 11) All structures should be painted an earth tone color. 2. Upon completion of Condition of Approval #1 above, the applicant shall submit one (1) paper copy or one (1) electronic copy (.pdf) of the map for preliminary approval to the Weld County Department of Planning Services. Upon approval of the map the applicant shall submit a Mylar map along with all other documentation required as Conditions of Approval. The Mylar map shall be recorded in the office of the Weld County Clerk and Recorder by the Department of Planning Services. The map shall be prepared in accordance with the requirements of Section 23-2-260.D of the Weld County Code. The Mylar map and additional requirements shall be submitted within one hundred twenty (120) days from the date of the Board of County Commissioners Resolution. The applicant shall be responsible for paying the recording fee. 3. In accordance with Weld County Code Ordinance #2012-3, approved April 30, 2012, should the map not be recorded within the required one hundred twenty (120) days from the date of the Board of County Commissioners Resolution, a $50.00 recording continuance charge shall added for each additional three (3) month period. 4. The Department of Planning Services respectfully requests a digital copy of this Use by Special Review, as appropriate. Acceptable CAD formats are .dwg, .dxf, and .dgn (Microstation); acceptable GIS formats are ArcView shapefiles or ArcGIS 4249961 Pages: 13 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 2016-3108 PL2360 1111 FAIQ VTAill III SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 14 Personal GeoDataBase (MDB). The preferred format for Images is .tif (Group 4). (Group 6 is not acceptable). This digital file may be sent to maps@co.weld.co.us. 5. Prior to Construction: A. If more than one (1) acre is to be disturbed, a Weld County Grading Permit will be required. 6. Prior to Operation: A. Accepted construction drawings and construction of the off -site roadway improvements are required. B. The applicant shall develop an Emergency Action and Safety Plan with the Office of Emergency Management and the Fire District. The plan shall be reviewed on an annual basis by the Facility operator, the Fire District and the Weld County Office of Emergency Management. The applicant shall submit evidence of acceptance to the Department of Planning Services. C. The applicant shall submit a Decommissioning Plan to the Department of Planning Services for review and approval. The Decommissioning Plan shall include a detailed plan with time frames or milestones after termination of operations for restoring the property to its condition which existed prior to commencement of operations. 7. The Use by Special Review activity shall not occur, nor shall any building or electrical permits be issued on the property, until the Use by Special Review map is ready to be recorded in the office of the Weld County Clerk and Recorder or the applicant has been approved for an early release agreement. 4249961 Pages: 14 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO uiiil��I��wl'h�ii'h b �L�S�w�Il�;ticl I Ik��Y4 s 11111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) -WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 3rd day of October, A.D., 2016. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: ddrA44), Weld County Clerk to the Board BY ty Clerk to the Board :<'--- APPROVED A$. -TO FORM:/ x --County Attorney Date of signature: (015/ I Co Mike Freeman, Chair ifr—i Sean P. Con) way, Pro-Tem 4249961 Pages: 15 of 21 11/01/2016 Koppes, Clerk 11� PM R O and Recorder, .00 Carly Weld County, CO II 2016-3108 PL2360 SITE SPECIFIC DEVELOPMENT PLAN USE BY SPECIAL REVIEW PERMIT DEVELOPMENT STANDARDS WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA USR15-0027 1. An Amendment to a Site Specific Development Plan and Use by Special Review Permit, USR15-0027 (formerly known as USR-1584), is for any Use permitted as a Use by Right, Accessory Use, or Use by Special Review, in the Commercial or Industrial Zone Districts (construction business with two shop buildings, office buildings, and outdoor storage) 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 to include a Mineral Resource Development Facility, including asphalt and concrete batch plants (materials processing) and transloading in the A (Agricultural) Zone District, subject to the Development Standards stated hereon. 2. Approval of this plan may create a vested property right pursuant to Section 23-8-10 of the Weld County Code. 3. The number of on -site employees for Gerrard Construction shall be 36, as stated by the applicant. 4. The number of on -site employees for Martin Marietta shall be 75 full-time employees, 50 truck drivers, and 30 field construction workers, as stated by the applicant. 5. The hours of operation for Gerrard Construction shall be 6:00 a.m. to 6:30 p.m., Monday through Friday, and 7:00 a.m. to 12:00 p.m., Saturday, as stated by the applicant. 6. The hours of operation for Martin Marietta shall be the following: A. Hours of Operation for Asphalt: 1) The plant will typically only operate Monday through Saturday. 2) The standard hours of plant operation will be limited to one hour before sunrise to one hour after sunset. 3) Load -out from storage silos will be limited to one hour before sunrise to one hour after sunset. 4) When the plant is operating at night, it will only occur when material is requested by cities, counties, or CDOT, for night paving projects. Operations will be considered "night operations," when they take place between the hours of one hour after sundown to one hour before sunrise. Depending on the request of the jurisdiction purchasing the asphalt, night operations could occur seven days per week. When Martin Marietta becomes aware of projects that require night operations, they will email the Weld County Planning Director to let him/her know about the plans to operate outside of daylight hours, who the project is for, how long it will be occurring, and where the materials are being delivered. 4249961 Pages: 16 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 50,11iiiN %Iii UMW NAIL),11111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA PAGE 2 B. Hours of Operation for Ready Mix Concrete: 1) The Ready Mix Concrete Plant will only operate Monday through Saturday. 2) The standard hours of plant operation will be limited to one hour before sunrise to one hour after sunset. 3) Up to three (3) times per month, between the months of March and October, the applicant may begin operations before the standard hours but not before 3:00 a.m. The applicant must notify the Planning Department each time this occurs. 4) The plant will not operate more than 16 hours per day. 5) Ready Mix trucks will generally operate during plant operations, but may return to the plant after plant shutdown to be cleaned and parked. C. Hours of Operation for Aggregate and Recycling: 1) Aggregate sales and recycling operations will only occur Monday through Saturday. 2) Aggregate washing and recycling operations will only occur during daylight hours (dawn to dusk or 6:30 a.m. to 6:00 p.m. during the winter), actual operating hours will vary dependent on weather and business levels. 3) Train unloading operations during the summer will only take place between the hours of 6:00 a.m. and 8:00 p.m., actual hours will be dependent on the time the train arrives at the site. 4) Train unloading operations during the winter will only take place during daylight hours, actual hours will be dependent on the time the train arrives at the site. 7. The parking area on the site shall be maintained. 8. All signs shall adhere to Chapter 23, Article IV, Division 2 and Appendices 23-C, 23-D and 23-E of the Weld County Code. 9. The landscaping/screening on the site shall be maintained. 10. Should noxious weeds exist on the property or become established as a result of the proposed development, the applicant/landowner shall be responsible for controlling the noxious weeds, pursuant to Chapter 15, Articles I and II, of the Weld County Code. 4249961 Pages: 17 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO VIII IIPAIIIIIPI;F4,N Idlyi' M EI II 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 3 11. There shall be no tracking of dirt or debris from the site onto publically maintained roads. The applicant is responsible for mitigation of any off -site tracking and maintaining on -site tracking control devices. 12. There shall be no parking or staging of vehicles on public roads. On -site parking shall be utilized. 13. The historical flow patterns and runoff amounts will be maintained on the site. 14. Weld County is not responsible for the maintenance of on -site drainage related features. 15. All liquid and solid wastes (as defined in the Solid Wastes Disposal Sites and Facilities Act, Section 30-20-100.5, C.R.S.) shall be stored and removed for final disposal in a manner that protects against surface and groundwater contamination. 16. No permanent disposal of wastes shall be permitted at this site. This is not meant to include those wastes specifically excluded from the definition of a solid waste in the Solid Wastes Disposal Sites and Facilities Act, Section 30-20-100.5, C.R.S. 17. Waste materials shall be handled, stored, and disposed of in a manner that controls fugitive dust, blowing debris, and other potential nuisance conditions. The applicant shall operate in accordance with the accepted Waste Handling Plan, at all times. The facility shall operate in accordance with Chapter 14, Article 1 of the Weld County Code. 18. Fugitive dust and fugitive particulate emissions should be controlled on this site. The facility shall be operated in accordance with the accepted Dust Abatement Plan, at all times. Uses on the property should comply with the Colorado Air Quality Commission's air quality regulations. 19. Adequate drinking, handwashing and toilet facilities shall be provided for employees and patrons of the facility, at all times. For employees or contractors on -site for less than two (2) consecutive hours a day, portable toilets and bottled water are acceptable. Records of maintenance and proper disposal for portable toilets shall be retained on a quarterly basis and available for review by the Weld County Department of Public Health and Environment. Portable toilets shall be serviced by a cleaner licensed in Weld County and shall contain hand sanitizers. 20. If applicable, the applicant shall obtain a Stormwater Discharge Permit from the Colorado Department of Public Health and Environment, Water Quality Control Division. 21. Any septic system located on the property must comply with all provisions of the Weld County Code, pertaining to On -site Wastewater Treatment Systems. A permanent, adequate water supply shall be provided for drinking and sanitary purposes, as needed. The facility shall utilize the public water supply. 22. All potentially hazardous chemicals must be handled in a safe manner in accordance with product labeling and in a manner that minimizes the release of Hazardous Air Pollutants 4249961 Pages: 18 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 2016-3108 PL2360 11111F.IIVIr R01:110:1141 111111 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 4 (HAPs) and Volatile Organic Compounds (VOCs). All chemicals must be stored securely, on an impervious surface, and in accordance with manufacturer's recommendations. 23. A Spill Prevention, Control and Countermeasure Plan, prepared in accordance with the applicable provisions of 40 CFR, Part 112, shall be available on -site. 24. This facility shall adhere to the maximum permissible noise levels allowed in the Residential Zone as delineated in Section 14-9-30 of the Weld County Code as measured at the property line of the adjacent residential lots. In all other locations the facility shall adhere to the maximum permissible noise levels allowed in the Industrial Zone as delineated in Section 14-9-30 of the Weld County Code. The applicant shall submit a Noise Mitigation Plan to the Department of Public Health and Environment which shall include Noise Monitoring at the borders of the property to ensure compliance with the standards set forth. 25. The facility shall comply with all provisions of the Colorado Department of Labor and Employment, Division of Oil and Public Safety, Underground and Above Ground Tank Regulations, as applicable. 26. Any washing areas shall capture all effluent and prevent discharges in accordance with the rules and regulations of the Water Quality Control Commission, and the Environmental Protection Agency. 27. Process wastewater (such as floor drain and laboratory wastes) shall be captured in a watertight vault/container and hauled off for proper disposal. Records of installation, maintenance, and proper disposal shall be retained. 28. The facility shall comply with the Air Pollution Emission Notice (A.P.E.N.) permit requirements as stipulated by the Air Pollution Control Division of the Colorado Department of Public Health and Environment. 29. Material being recycled shall be separated by material type or use. Incoming loads shall have all non -concrete, non -asphalt and non-rebar material removed from concrete and asphalt materials within thirty (30) calendar days. Non -concrete, non -asphalt and non-rebar material shall not exceed 10% of the total material onsite by weight or volume. 30. Odors detected off -site shall not exceed the level of seven -to -one dilution threshold, as measured pursuant to Regulation 2 of the Colorado Air Pollution Control Regulations. 31. The operation shall comply with all applicable rules and regulations of state and federal agencies and the Weld County Code. 32. Sources of light shall be shielded so that light rays will not shine directly onto adjacent properties where such would cause a nuisance or interfere with the use on the adjacent properties in accordance with the plan. Neither the direct, nor reflected, light from any light source may create a traffic hazard to operators of motor vehicles on public or private 4249961 Pages: 19 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO IOlr '«4GP tl4�'LI+�+�Yi�h 11111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, C/O MARTIN MARIETTA PAGE 5 streets. No colored lights may be used which may be confused with, or construed as, traffic control devices. 33. A building permit may be required per Section 29-3-10 of the Weld County Code. Currently the following have been adopted by Weld County: 2012 International Codes, 2006 International Energy Code, and the 2014 National Electrical Code. A building permit application must be completed and two (2) complete sets of engineered plans bearing the wet stamp of a Colorado registered architect or engineer must be submitted for review. A geotechnical engineering report performed by a registered State of Colorado engineer shall be required or an open hole inspection. 34. Martin Marietta will establish and operate a Community Work Group that meets at least quarterly and will be comprised of a representative group of surrounding neighbors and Martin Marietta officials. A list of the participating members shall be submitted to the Department of Planning Services. 35. Martin Marietta will set up a $100,000.00 landscaping fund in escrow to be managed by Martin Marietta and the Community Work Group to fund landscaping for installation on the lots of adjacent landowners with views of the facility. Under no circumstances is Weld County obligated to manage or fund the landscaping fund. 36. Martin Marietta's asphalt plant will operate with vertical liquid AC storage tanks, carbon filters, and an emission capturing system. Martin Marietta must have a certified nasal ranger at the site while the asphalt plant is operating. 37. The property owner or operator shall be responsible for complying with the Design and Operation Standards of Chapter 23 of the Weld County Code. 38. Necessary personnel from the Weld County Departments of Planning Services, Public Works, and Public Health and Environment shall be granted access onto the property at any reasonable time in order to ensure the activities carried out on the property comply with the Conditions of Approval and Development Standards stated herein and all applicable Weld County regulations. 39. The Use by Special Review area shall be limited to the plans shown hereon and governed by the foregoing standards and all applicable Weld County regulations. Substantial changes from the plans or Development Standards, as shown or stated, shall require the approval of an amendment of the Permit by the Weld County Board of County Commissioners before such changes from the plans or Development Standards are permitted. Any other changes shall be filed in the office of the Department of Planning Services. 40. The property owner or operator shall be responsible for complying with all of the foregoing Development Standards. Noncompliance with any of the foregoing Development Standards may be reason for revocation of the Permit by the Board of County Commissioners. 4249961 Pages: 20 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County. Co r�rju'r��Ik.'i: r miihr w �ic r 11111 2016-3108 PL2360 SPECIAL REVIEW PERMIT (USR15-0027) - WELD LV, LLC, AND GERRARD INVESTMENTS, LLC, CIO MARTIN MARIETTA PAGE 6 41. The Weld County Right to Farm Statement, as it appears in Section 22-2-20.J.2 of the Weld County Code, shall be placed on the map and recognized at all times. 42. RIGHT TO EXTRACT MINERAL RESOURCES STATEMENT: Weld County has some of the most abundant mineral resources, including, but not limited to, sand and gravel, oil, natural gas, and coal. Under title 34 of the Colorado Revised Statutes, minerals are vital resources because (a) the state's commercial mineral deposits are essential to the state's economy; (b) the populous counties of the state face a critical shortage of such deposits; and (c) such deposits should be extracted according to a rational plan, calculated to avoid waste of such deposits and cause the least practicable disruption of the ecology and quality of life of the citizens of the populous counties of the state. Mineral resource locations are widespread throughout the County and persons moving into these areas must recognize the various impacts associated with this development. Often times, mineral resource sites are fixed to their geographical and geophysical locations. Moreover, these resources are protected property rights and mineral owners should be afforded the opportunity to extract the mineral resource. 4249961 Pages: 21 of 21 11/01/2016 12:24 PM R Fee:$0.00 Carly Koppes, Clerk and Recorder, Weld County, CO 1111 u�� r,L�F�h� �l'L Li � tir L�fl«G1�� i+i� i h 111111 2016-3108 PL2360 DISTRICT COURT, WELD COUNTY, COLORADO 901 9th Avenue, P.O. Box 2038, Greeley, CO 80632 (970) 475-2400 DATE FILED: August 9, 201 CASE NUMBER: 2015CV3f' A COURT USE ONLY Plaintiffs: Motherlove Herbal Company; Indianhead West Homeowners Association, Inc.; Rockin S Ranch LLC; John Cummings; David Kisker; Gary Oplinger; Wolfgang Dirks; and James Piraino v. Defendants: The Board of County Commissioners of Weld County, Colorado; Martin Marietta Materials, Inc.; Garrard Investments, LLC; Weld LV LLC; and Weld LV II, LLC Case No. 2015 CV 30776 Division 4 Order of Remand Under C.R.C.P. 106(a)(4), the plaintiffs appeal the Weld County Board of County Commissioner's (BOCC) decision to approve an Application for an Amendment to a Site Specific Development Plan and for a Use by Special Review (USR) Permit submitted by Defendant Martin Marietta. The standard of review under C.R.C.P. 106(a)(4) is whether, on the basis of the whole record, the ultimate findings of the BOCC are supported by any competent evidence. W.C.C. § 23-2-230.D provides: Upon the Board of County Commissioners making its final decision, a resolution setting forth that decision will be drafted and signed. A record of such action and a copy of the resolution will be kept in the files of the Clerk to the Board. 5:36 PM 76 Although there is no requirement that the findings be exhaustive, the BOCC is required to include findings and conclusions to support its decision on the material issues. See Colorado State Bd. of Medical Examiners v. Ogin, 56 P.3d 1233,1238 (Colo. App. 2002). Where a board fails to make adequate findings in 2016-3108 PL,23to the record, it is appropriate for the trial court to remand the case to the board with directions to make findings of fact or conclusions of law necessary for the subsequent review of its action. C.R.C.P. 106(a)(4)(IX); Bd. of County Comm'rs of Larimer County v. Conder, 927 P.2d 1339, 1350 (Colo. 1996). The BOCC's Resolution here merely restates the criteria required under W.C.C. § 23-2-230.B, which are conclusions of law. But it does not include any findings of fact or rationale as to why the application meets the stated criteria. Based on my review of the record, I conclude that the BOCC failed to set forth specific findings of fact in the Resolution. I therefore cannot determine whether the BOCC's ultimate findings are supported by competent evidence. Our Supreme Court has held that, while not making factual findings is obviously not good administrative practice, in the absence of express findings of fact, there are implicit findings "when the state of the evidence is such as would warrant the making of such finding[s] by the board." Sundance Hills Homeowners Ass'n v. Bd. of County Comm'rs, 534 P.2d 1212, 1216 (1975) (quoting Cugini v. Chiaradio, 189 A.2d 798, 802 (R.I.1963)). Consequently, the lack of factual findings is not necessarily fatal to the BOCC's decision so long as there is sufficient evidence in the record to support the Board's decision. It is not necessary that the BOCC make explicit and technical findings; it may, instead, make only findings of ultimate facts. Id. But the BOCC did not make any findings of fact here. And the state of the evidence does not warrant automatic approval of the USR at issue without express findings of fact. For instance, both the Department of Planning Services Staff and the Planning Commission recommended denial of the application. In their Resolution of Recommendation, they cited to several specific criteria in support of denial, including that the proposed use is not consistent with the Order of Remand Motherlove Herbal Co. et al. v. Bd. of Cnty. Comm'rs of Weld Cnty. et al., 2oi5 CV 30776 Page 2 of 3 Weld County Comprehensive Plan' and that the proposed use is not compatible with existing surrounding land uses. Specifically, they found that the noise, odors, and traffic from the proposed use will cause disruption to the nearby residential properties2 as well as health and safety concerns. Furthermore, at the public hearing, the BOCC heard extensive testimony that the proposed use is incompatible with existing residential uses; that it would negatively impact surrounding property values; and that several of the studies submitted by Martin Marietta were deeply flawed. Ultimately, the BOCC is required to provide at least some basis for its conclusions of law, and it failed to do so in its Resolution. Accordingly, this case is remanded to the BOCC to make the requisite findings of fact necessary for judicial review of its decision to approve the application. The BOCC has 63 days from today to make its findings of fact and to certify those finding as part of the record. So Ordered: August 9, 2016 BY TI lE COURT: 21'141., Todd Taylor District Court Judge 1 Both the Department of Planning Services Staff and the Planning Commission concluded that the proposed use is not consistent with the Weld County Comprehensive Code for the following reasons: (1) the proposed use is not directly related to, or dependent upon, agriculture and it will be removing about 90 acres of Prime (Irrigated) Farmland from production (W.C.C. § 22-2-20.G.1); (2) the area cannot support such development and is not compatible with the region, as demonstrated by the five surrounding jurisdictions' referral comments (W.C.C. § 22-2-20.G.2); and (3) the roadway facilities are not adequate to support this industrial development (W.C.C. § 22-2-80.C.2). 2 There are 14 single-family homes/lots within 500 feet of the site and the Indianhead Subdivision (approximately 100 lots) is located northeast of the site. Order of Remand Motherlove Herbal Co. et al. v. Bd. of Cnty. Comm'rs of Weld Cnty. et al., 2015 CV 30776 Page 3 of 3 Esther Gesick From: Sent: To: Cc: Subject: Good evening everyone, Julie Cozad Sunday, October 02, 2016 8:47 PM Commissioners Bruce Barker; Esther Gesick Monday, October 3rd Unfortunately, I am not going to be able to be at our Board meeting tomorrow and I may miss our afternoon meetings as well. My sister who lives in Thornton is very ill and they can't figure what is wrong with her (fever, abdominal pain, high protein levels and high white counts). They did a blood culture and put her on an IV last Thursday, but she is still very sick, so much that she has not been out of bed for the past week and half. She has no one to take her to her appointment tomorrow to get results of tests and she has told me that she doesn't feel that she can even drive herself, so I am going down to Denver to take her. I know we have the Martin Marietta hearing tomorrow on the Amended Resolution and I feel terrible about missing it, but I need to take her. I spoke to Mike earlier and told him I would send my comments, so they are all below. Mike can also state on the record, that I had a family emergency and that is why I couldn't be there. My comments can be directly read into the record or summarized, and are as follows: I agree with the written Amended Resolution for USR15-0027 and after spending the past month going back through the application, reports and written transcripts, I agree with the findings from those documents, as written into the Amended Resolution. I do have some suggested changes, but they are minor in nature. They can also be read into the record, if appropriate and if agreed upon by the rest of you. Again, these are not substantial and are suggested to help clarify a few things. On Page 3 Fourth Paragraph I would suggest the last line read as follows: The applicant's Final Drainage Report shows drainage design measures for the property which detain runoff/storm water and include required water quality features to meet state and county requirements for runoff/stormwater. On Page 4 Continuance of sentence at the top of page 4, the line says: "the proposed operation, which reduce the potential for conflict with surrounding land uses" add a comma after land uses and add: including terming, landscaping, fencing and design features of the structures. On Page 4 Section C. Second Paragraph, last sentence, add the words: in the vicinity at the end of the sentence. Third Paragraph, Sixth line, sentence that begins "Future permitted development", add: a comma after the word development and the words: within the Town of Johnstown's jurisdiction, and continue the remaining sentence. I think the next sentence should read: "The additional traffic generated from this USR site will be.... On Page 6 Second Paragraph, Line 5 (grammatical: add the word is between the words use and consistent.) Line 7, add at the end of the sentence: at this location. 1 Paragraph 6 (grammatical: after A.Policy7.3 should say states instead of staes) Paragraph 7, Line 2 (grammatical: should say Area instead of Arear) On Page 7 First Paragraph, line four: instead of the word "because" I think it would read better to say: with the approval of USR- 1584. On Page 9 Fourth Paragraph, line 3: Add the word road before damage repair Fourth Paragraph, line 5: I think there should be a period after the word immediately and remove the words "and continue". The next sentence explains the additional improvements for future triggers. Fifth Paragraph, line 1: (grammatical: there are two "the's") On Page 10 Third Paragraph, line 4 (at the end): Change to read: The Highway 34 corridor and surrounding area (rather than "region") Fourth Paragraph, line 6 at the end of the sentence: "...and railroad crossing, through a Road Improvements and Maintenance Agreement. That is all I have. Again, I apologize for not being there in person. Thanks for all of your understanding. Julie Julie Cozad Weld County Commissioner, District 2 1150 O Street P.O. Box 758 Greeley, CO 80632 Office: 970-336-7204 Cell: 970-515-2424 Fax: 970-336-7233 icozadCcilweldgov.com 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. 2 Hello