HomeMy WebLinkAbout20141505.tiff HEARING CERTIFICATION
RE: PROBABLE CAUSE HEARING TO DETERMINE IF RIGHT-OF-WAY USE PERMIT,
RW14-00125, TO PLACE AN 18" WATER PIPELINE WITHIN COUNTY ROAD 55
RIGHT-OF-WAY, SHALL BE REVOKED -COLORADO WATER PIPELINES, LLC
A public hearing was conducted on May 19, 2014, at 9:00 a.m., with the following present:
Commissioner Douglas Rademacher, Chair
Commissioner Barbara Kirkmeyer, Pro-Tern
Commissioner Sean P. Conway
Commissioner Mike Freeman
Commissioner William F. Garcia
Also present:
Acting Clerk to the Board, Susan Brown
Assistant County Attorney, Brad Yatabe
Public Works representatives, Janet Lundquist and Amy Joseph
The following business was transacted:
(Clerk's Note: due to a technical problem, there is no audio recording for this hearing.)
I hereby certify that pursuant to a notice dated May 6, 2014, a public hearing was conducted to
show cause to determine whether Right-of-Way Use Permit, RW14-00125, issued to Colorado
Water Pipelines, LLC, to place an 18" water pipeline within County Road 55 right-of-way, should
be revoked. Brad Yatabe, Assistant County Attorney, made this a matter of record.
Janet Lundquist, Department of Public Works, provided a history of this permit and complaints.
On April 28, 2014, staff confirmed the applicant was trespassing on private property which was
a violation of their permit. The applicant has worked with the property owner to mitigate that
damage, but the Department was still requested to bring the issue before the Board.
Bruce Barker, County Attorney, advised that a probable cause hearing should precede a show
cause hearing — and this matter should be changed to 'probable cause'. He reviewed the
pertinent code ordinance, and said the Board should use a process similar to USR proceedings.
Tim McCarthy explained the pipeline crosses the Henrylyn Ditch, initially, they were trying to
acquire a temporary construction easement from property owner, Bob Fritzler. Mr. Fritzler
requested $10,000, the company felt that was too high; therefore, they came up with a plan to
stay within the public right-of-way to do the work. Mr. McCarthy stated that the contractor
realized where the ditch head walls were after getting started and made a decision in the field
to move the work eight (8) feet to the east without requesting permission. Mr. McCarthy said
when he was called by Mr. Fritzler, he went to the site and talked with Mr. Fritzler about what
had happened and decided to honor the initial request of $10,000.00; Mr. Fritzler was given a
check the next day. It was left as a verbal agreement because the damage had already been
done and the bore was in place.
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Bill Jerke, representing the developer, explained the affected property is non-critical/not planted
and asserted the compensation was more than adequate. He stated it would be a mistake to
pull the whole project due to this mistake. a Mr. McCarthy confirmed the pipeline is already
completed. Ms. Joseph explained some of the reclamations have been put temporarily on hold
due to other work.
Robert Fritzler, County resident, said he was specifically told the pipeline would not go onto his
property, and at that time he stated he did not think that would be possible, and talked to his
neighbors about negotiating together to get a fair share. Right after the hearing, he saw pipes
dropped off on the east side of his property, not the west as was originally planned. He said to
them "I don't think you can tunnel under the Henrylyn canal and stay in the row". They assured
him they could. Then there was equipment on his land and a hole 10 feet onto his property. He
spoke at length regarding the varying compensation. He said after the incident he was offered
$1,000.00, then he accepted $10,000, but there was no paperwork, and the check has not been
cashed; in addition, he was requested to keep the amount confidential. He said the Sheriff told
him they cannot respond to allegations of trespassing, because it is a civil matter, and he would
have to get a surveyor and a lawyer. Finally, he said damages should have been negotiated
and he does not think this company acted in good faith.
Bonnie Macintosh, surrounding property owner, stated she did not know the pipeline was going
on her side of the road (east) until she heard the road grader ploughing up the front of her
property, including her driveway, and that she was asked to move a tractor out of the way which
was sitting on her own land. She said the application states the applicant talked to all the
landowners but that is not the case, and she received no compensation. She also mentioned
increased traffic on CR 55.
Mr. Fritzler asked why the compensation varies so much, and, in response to Commissioner
Conway, he confirmed that the pipeline is not actually laying on his property, but the hole is; the
pipeline is on the edge. He added that he never agreed to a temporary easement.
Commissioner Conway noted the pipeline is already completed. He asked what compensation
would be fair. Mr. Fritzler replied $9.00 a foot, for a mile of pipeline, and he described the hole.
In response to Chair Rademacher, Ms. Carter and Ms. Joseph reported that there are no other
encroachments they are aware of. Mr. Barker confirmed that the property owners along the
County's right-of-way do not get compensation as a matter of course, but it does sometimes
occur. In response to Commissioner Conway, Mr. Barker said the standard fee for construction
easements varies; the minimum amount for a temporary construction easement is $500.00. He
noted the compensation to Mr. Fritzler is for a temporary construction easement (and the
accidental encroachment), the hole is filled, and that crop damages will be paid to everyone on
CR 55. Mr. McCarthy confirmed the pipeline itself is completely within the right-of-way.
Ms. Carter explained the right-of-way is 60 feet, but it is not on the centerline. She also noted
some farmers farm right up to the edge of the road and, under usual circumstances, the County
has no objection.
Commissioner Garcia noted this is an interesting issue; his initial impression is that the applicant
paid what was requested. The company paid $10,000.00 for making this mistake, when the
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actual damages would have been around $324.00. He stated there is no reason to move
forward on the probable cause. Commissioner Kirkmeyer concurred; she said this tough
because the pipeline is already in place, and the Board does not have the authority to dictate
negotiations with landowners; however, she expressed concern about the promises made in a
lengthy hearing; she said when someone objects to encroachment and are assured it will not
happen, they should be able to rely on that. She also noted that Colorado Water Pipeline did
not bring the required evidence of all the signed agreements. She stated she is extremely
disappointed in the way this company has treated Weld County constituents, and she will take
into account regarding their future applications. Commissioner Conway also concurred. He
added that he appreciates Mr. Fritzler's desire for everyone to be treated equally and fairly. He
said it appears the contractor did a poor job of communicating with the applicant, and when the
applicant was noticed they did move to rectify the situation. He referenced the previous
hearing, stating that contractors are known to take liberties, but the mediation between the
parties has already taken place. Commissioner Freeman concurred with his fellow
commissioners. Chair Rademacher also concurred, and noted there is not a set price for
pipeline per foot, which is why they negotiate with each landowner separately.
Commissioner Garcia moved to not find probable cause, based on the recommendations of the
Department of Public Works staff. The motion was seconded by Commissioner Conway, and it
carried unanimously. There being no further discussion, the hearing was completed at
10:45 a.m.
This Certification was approved on the 21st day of May, 2014.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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