HomeMy WebLinkAbout20143355 HEARING CERTIFICATION
RE: PROBABLE CAUSE HEARING CONCERNING RIGHT OF-WAY USE PERMITS,
RW14-00125, RW14-00152, AND RW14-00169, TO PLACE A WATER PIPELINE
WITHIN THE COUNTY ROAD 55 RIGHT-OF-WAY - COLORADO WATER PIPELINES,
LLC
A public hearing was conducted on October 27, 2014, at 9:00 a.m., with the following present:
Commissioner Douglas Rademacher, Chair- EXCUSED
Commissioner Barbara Kirkmeyer, Pro-Tem
Commissioner Sean P. Conway
Commissioner Mike Freeman
Commissioner William F. Garcia
Also present:
Acting Clerk to the Board, Susan Brown
County Attorney, Bruce Barker
Public Works representatives, Janet Lundquist and Amy Joseph
The following business was transacted:
IR I hereby certify that pursuant to a notice dated October 16, 2014, a public hearing was
conducted to determine whether or not there is sufficient probable cause concerning compliance
with certain provisions contained in Right-of-Way Use Permits, RW14-00125, RW14-00152, and
RW14 00169, issued to Colorado Water Pipelines, LLC. Bruce Barker, County Attorney, made
this a matter of record.
ID Janet Lundquist, Department of Public Works, provided a history of the project, complaints
from surrounding property owners, violations and County actions taken, leading to this Probable
Cause hearing. The original issues developed from surrounding property owner complaints of
blocked accesses and work being done on private property without the required
easements/trespassing, specifically Bonnie Macintosh and Bob Fritzler, and representatives of
the Town of Keenesburg. On May 19, 2014, staff confirmed there was a new contractor, which
requires a new right-of-way permit as well as a 24-hour notice before commencing work; this is
a requirement to ensure there is adequate traffic control and to provide notice for the staff to
evaluate quality of work. Ms. Lundquist further reviewed complaints and the progress of work
and mitigation. In conclusion she stated there are three violations: CWP did not formally notify
the department 24-hours in advance of commencing work in the right-of-way, they trespassed
on private property owners without having easements on two separate occasions, and lastly,
they did not meet the Board's direction and requirement from the last hearing to have all their
easement agreements in place prior to further construction on the pipeline.
El Joel Farcus, Manager at Colorado Water Pipelines (CWP), introduced Zach Miller, of
Davis, Graves and Stubbs, and Tim McCarthy, Tamarack Consulting, LLC. Mr. McCarthy gave
an eight slide PowerPoint presentation, entered into the record as Exhibit A, with current status
and the results of the work session with the County Commissioners. He pointed out traffic
counts are low on both County Roads (CRs) 14 and 55 and he noted they have additional
documents to submit as well. He addressed the two primary landowner issues. He showed
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PROBABLE CAUSE HEARING CERTIFICATION - COLORADO WATER PIPELINES, LLC
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slides of the damaged culvert on the Macintosh property, which was fixed. He pointed out this
is a linear culvert, and there is no way to make the culvert discharge in a different location, as
requested by Ms. Macintosh, without altering the concrete structure, or putting a bend in the
pipe; however, he offered to facilitate putting plans together as long as the property owner and
the County agree on what they want done here. He then showed images of the CRs 55 and 14
rights-of-way adjacent to the Fritzler property, he said only a small portion of the ditch
encroached on that property and asserted neither access road was blocked by dirt. He also
asserted that the perception that every landowner in the area is displeased is not accurate and
presented quotes from letters of support. He then reviewed the next slide, which gave a history
of the complaints and CWP's attempts at addressing those complaints and offer of financial
settlement (in the form of a $10,000 check which was not cashed). He extensively reviewed the
settlement negotiations from CWP's point of view, stated surveyors have verified the pipeline is
not on Mr. Fritzler's property, and said that efforts at reaching a settlement continue as of
yesterday. a Mr. Miller stated he feels they are very close to a final settlement agreement.
The last three sides showed surrounding property owners' responses to the notice and gave
examples of continued efforts to communicate with the Department of Public Works via emails
and phone calls. IE9 Mr. Miller asserted that the County was notified via an email in which Mr.
Fergus wrote "let me know if you need anything else" prior to the notice dated October 16, 2014.
He said Mr. Brnak, who serves as Mr. Fritzler's tenant farmer, was informed of what they were
doing and was mistaken by a CWP employee for Mr. Fritzler at that time. He stated there were
verbal agreements with Mrs. Macintosh, and CWPs plans were updated to acquiesce to her
requests. He said if they need to pay additional crop damages they are willing, but the alfalfa
seems to be seeding well. In response to the third violation, lack of the submittal of signed
temporary easement agreements, as requested by the Board's resolution dated March 10,
2014, for properties on which material was placed, and Mr. Fergus pointed CWP acted in good
faith with verbal agreements and changes, and has not contested the requested damages from
Mr. Fritzler and Mrs. Macintosh.
ID Chair Pro-Tem Kirkmeyer opened the floor for public comment. Lyle Sharp, Sharp WC
Land, said he owns 160 acres at the corner of CRs 59 and 14 alongside the pipeline. He stated
that he was approached for a permanent easement of 30 feet and he elected not to grant that
easement, but he was told that if he did not sign they were going through the County right-of-
way, and he had no recourse. He said the pipeline has been on his property above ground
since April. He said CWP sent a standard offer letter and he does not agree to the provisions.
His attorney will respond to that this week, but seven months without compensation or
authorization is not acceptable. He was never contacted regarding the County right-of-way. He
stated he hopes they can work out an agreement; however, if he had not sent a letter to CWP,
he believes they would not have voluntarily addressed the issue.
la Bob Fritzler stated he has been in contact with Mr. Farcus and would like nothing better
than to complete the agreement, and he isn't sure where that stands. He described the issues
again and also noted the Town of Keenesburg needs this road to get to their water purification
tanks and was not informed. He said that he did not accept the check for $10,000 because no
formal paperwork accompanied it, and that is why he obtained an attorney, and Lance Estrella
is still their attomey, he was only dealing directly with CWP because of the short time-span
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before this hearing, and he gave some additional history of their negotiations.
Commissioner Kirkmeyer asked if at this time he has an easement or has been
compensated, and if he still asserts CWP trespassed on his property. Mr. Fritzler answered
these in the negative, and maintains his position that trespassing occurred. E In response to
Commissioner Garcia, he stated he does not want to hold up CWP's pipeline, but he would like
compensation and feels they are close to a settlement. He added that he is concerned that
there are 10 miles of pipeline and CWPs easement location map showed landowners on CR 55
as un-signed, and reviewed his earlier complaints regarding the disparate treatment of
landowners on CR 14 and CR 55.
Mr. Farcus made closing comments. Mr. Miller apologized for not having received the
email referred to by Mr. Fritzler, and noted this agreement will resolve the issue of easement
and compensation with Mr. Fritzler and should be resolved, perhaps later today. In response to
Commissioner Kirkmeyer, Mr. Farcus stated that the Sharp property is in a different location
from these permits, notwithstanding that, they are open to reaching a reasonable compensation
arrangement and they have been in communication.
e In response to Commissioner Conway, Mr. Macintosh said that he would provide
Ms. Joseph with copies of all agreements up-to-date. Mr. Macintosh confirmed CWP has
signed agreements with every property owner, except those whose property is solely in the
County right-of-way. He noted that the Board requested an updated map, and that was provided
to staff. He said Phase II is not encroaching on any property along CR 14, with the exception of
the Sharp property. Mr. Farkus then stated they sought a permanent easement, then provided
two alternatives when that was refused, either a permanent easement or compensation.
ID Janet Lundquist, Department of Public Works, clarified that in order for CWP to work on
September 26, 2014, they needed to call the Department of Public Works on
September 25, 2014. The reason that is a requirement is that there are hundreds of projects
going on in the County and the Department needs to know about actual construction to manage
traffic and to warn other people using those roadways, and construction schedules move back
and forth all the time, so that is the purpose of having this rule for 24-hour notice. She also
clarified the difference between temporary, construction and permanent easements. The Board
asserted their understanding of those differences. In response to Commissioner Conway,
Ms. Lundquist said staff always returns phone calls, a voicemail was left on
Saturday, September 20th, so they could have begun work on the 21st or 22nd, but only if they
had received their revised permit. She concluded that a revised permit clears up any confusion
that may exist about who is doing the construction. El Amy Joseph briefly revisited staffs
confusion regarding who the contractor was for the next phase of the contract. In regard to the
lack of submittal of signed temporary easement agreements, Ms. Joseph said that spoil piles
require temporary construction permits, permanent easements are different. Ms. Joseph said
the drawings that were submitted were seven feet off the section line, after these issues began,
it was verified that the pipeline is in right-of-way where CWP submitted it would be. There were
also delays caused by the valve dysfunction. In response to Commissioner Kirkmeyer, she said
the deadline was 90 days, on October 1, 2014, it was extended to that in June, and CWP has
been given another 90 days. The entire line originally should have been installed by June.
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El Mr. Miller addressed the over the 24-hour notice and said new insurance certificates were
given to Public Works and asserted notice was given on Friday for work that started on Monday.
He asserted that the contractor asked what else was needed and did not receive instruction to
provide the revised permit, and Mr. Sharp's property is not along the route that is covered by
these permits, and is not covered by today's proceedings. In response to Commissioner
Kirkmeyer, Mr. Farkus explained that Doug Oakland is a project manager and is part of the
pipeline crew and Mark Brown is the construction supervisor, and they both work for Tamarac.
It was confirmed that Tamarac has a longstanding history of working in Weld County and should
know proper procedure. Ms. Lundquist clarified what still needs to happen in order for CWP to
proceed. Ms. Joseph confirmed there were two different permits issued and a third is needed
for Phase II of the project, with the new contractor's information. There was discussion
regarding the location of the Sharp property. Ms. Joseph explained the three permits for the
pipeline, two awarded and the one pending. Ms. Lundquist clarified all three permits are before
the Board today, Mr. Barker confirmed the notice included all three, and Ms. Joseph clarified
that the Sharp property is included in today's considerations.
Fi Mr. Barker reviewed the provision of the Code that applies to the permit, which he asserted
provides the Department of Public Works the right to revoke a permit without review if they
determine a "substantial breach". He said what qualifies as a 'substantial breach' and whether
or not CWP shall be given time to remedy is what is being considered by the Board today, and
he further explained the County's process for review. ID In response to Commissioner Garcia,
Mr. Barker said the suspension was for the purpose of bringing the matter before the Board; and
at this time the Board makes a determination.
Commissioner Garcia thanked everyone who participated in today's proceedings. He
stated he was not leaning towards the finding of a 'substantial breach,' he said the easements
are being worked on, and he noted Mr. Fritzler is being reasonable in requesting fair
compensation, and also not wanting the pipeline further delayed. With regard to trespass,
Commissioner Garcia said the issue of the dirt on Ms. Macintosh's property seems to have
been resolved. In regard to the 24-hour notice, he noted there was some attempt at notice, but
it was not done proper) and in conclusion, he stated he is not in favor of a finding of
'substantial breach'. ti Commissioner Conway concurred, referring to the recent work
session with the Board, CWP, and surrounding property owners. He stated anything that still
needs to be done should be immediately communicated by Public Works and corrected by
CWP. E Commissioner Freeman concurred. He stated mistakes were made, but he is not in
favor of a finding of sufficient probable cause to schedule a Show Cause Hearing.
El Commissioner Kirkmeyer argued this is not an inexperienced contractor who didn't know
about the 24-hour notice or revised permit requirement, and the issue was not caused by
County staff; the contractor did not follow Weld County's rules and regulations. She said the
Town of Keenesburg not having access to their water tower was concerning, as well as that the
Board made a specific requirement that all easement agreements be in place and seven months
later they are still being negotiated - citizens are here with complaints and without signed
easements, and, in addition, the Board was told several times by CWP those were all in place.
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She said trespassing is a substantial breach, and it is unacceptable for a pipeline company to
conduct their business in such a manner here. Communication between property owners and
this company should not be reliant on the Board having work sessions and hearings, and,
therefore, she is not confident that CWB can be trusted to complete the agreements. She stated
the Board could find probable cause today if they so wished, but their goal is primarily
compliance. She suggested a continuance of today's hearing to give CWP a little more time to
get those in place, noting that the pipeline is a month overdue, and if it is dismissed today there
is a likelihood this will not get resolved. ID Mr. Barker said that the condition 'temporary
construction easements shall be signed' was intended for the noticed hearing today, and aren't
necessary for Phase II if they remain in the County's right-of-way. Mr. Sharp's affected property
is within the County's right-of-way, therefore, CWP isn't required to obtain a temporary
construction easement; Mr. Sharp had eight months to take legal action to stop the pipeline from
being in this location and did not take action. In response to Commissioner Conway,
Ms. Lundquist said the Board may continue this matter and allow them to continue working in
the meantime, or they can issue the permit. Staff is trying to find a reasonable balance. They
need to remedy the situation with Mr. Fritzler and get the permit reissued for the new contractor.
Ei Commissioner Conway noted that bad weather is coming and the pipeline is still above
ground; everyone just wants to get this done. The negotiations sound extremely close to being
resolved from testimony on both sides. Commissioner Kirkmeyer again requested a continuance
of one week in order to remedy the violations and continue working. Commissioner Garcia
concurred with Commissioner Conway, in that the project needs to get back on track.
Commissioner Freeman concurred.
e Commissioner Conway moved to continue this matter until Monday, November 3, 2014, at
9:00 a.m. in the Assembly Room of the Weld County Administration Building, 1150 O Street,
Greeley, Colorado with instructions to staff. The motion was seconded by Commissioner Garcia.
Ms. Lundquist explained that the permit to be issued now is for all new work, there is nothing to
remedy. Commissioner Kirkmeyer said they can start new work as soon as they are in
compliance. Commissioner Garcia advised that when the County is informed of compliance and
the agreements are resolved, CWP and the surrounding land owners should be notified that
they don't need to attend Monday's hearing (unless there are any new issues) as the case will
just be dismissed. The motion carried unanimously.
El Mr. Miller stated that temporary construction easements are meant for working outside the
County's right-of-way, and asserted there is no more work to be done that will occur outside the
right-of-way. He added that their pending agreement with Mr. Sharp is voluntarily addressing his
concerns.
There being no further discussion, the hearing was completed at 11:24 a.m.
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This Certification was approved on the 29th day of October, 2014.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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ATTEST: Watiyouti ;i L EXCUSED
o)oglas Radema h , Chair
Weld County Clerk to the B-i rd •fr4b
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�. =rbara Kirkmey , Pro-Tern •
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De WT Clerk to the Board%;`U NI, e 3-. P .
L Sean P..ConwayvJt
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Mike Free,/
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