MINUTES OF THE BOARD OF COUNTY COMMISSIONERS
Monday, October 20, 2008
LAND USE HEARING
The Board of County Commissioners met at 3:00 p.m. with Matt Lafferty, Principal Planner. Chair Gibson presided and Commissioners Eubanks and Rennels were present. Also present were: Toby Stauffer and Sean Wheeler, Planning Department; Christie Coleman and Traci Shambo, Engineering Department; Doug Ryan, Environmental Health Department; Dave Shirk, Estes Valley Planning Department; William Ressue, Assistant County Attorney; and Melissa Lohry, Deputy Clerk.
Chair Gibson opened the hearing with the Pledge of Allegiance and asked for public comment on the County Budget, Land Use Code or Rubbish Ordinance. No one from the audience addressed the Board regarding any of these topics.
Chair Gibson noted that the following items were on consent and would not be discussed unless requested by the Board, staff, or members of the audience. Brian Schumm requested item two, “Ramona Heights Lot 17, 5AB, 6AB, and 7AB Easement Vacation,” be pulled from today’s Consent Agenda for further discussion.
1. HILLCREST ESTATES SUBDIVISION AMENDMENT TO FINDINGS & RESOLUTION REGARDING SEPTIC SYSTEM ENVELOPES: This is a request to amend the Findings and Resolution for Hillcrest Estates subdivision, originally recorded in 1992. The plat includes broad “Septic System Envelopes” which are labeled as non-buildable areas. The applicant’s lot, Lot 10, is triangular shaped, and has a 150-foot deep non-buildable area located in the most buildable portion of the lot (the wide part of the triangle). This septic envelope along with the 50-foot setbacks per zoning combine to significantly reduce the buildable area of the lot.
The original intent of the septic envelopes was to ensure adequate spacing between wells and septic areas. Over the intervening years, a sanitary sewer main has been extended into the subdivision, and all but one remaining un-built lot will connect to this main. The one lot that is too far from the main has adequate area to install the septic system, and will be reviewed by the health department to ensure it will not interfere with nearby wells, as per standard practice.
Staff suggests the septic envelopes are no longer necessary and can be vacated without detriment to the public welfare. Therefore, staff recommends approval of the requested amendment.
3. CRYSTAL LAKES 3RD FILING LOT 99 EASEMENT VACATION, FILE #08-S2828: This is a request for the vacation of a 50-foot cul-de-sac easement at the end of Navajo Road in Crystal Lakes 3rd filing. The cul-de-sac bulb is no longer needed because it has been replaced by a right-of-way that connects Navajo Road to Ottawa Way, per the deed recorded on October 15, 2006, reception number 20060075909. Vacation of the easement will not leave any property without access.
Staff recommends approval of the Crystal Lakes 3rd Filing, Lot 99, cul-de-sac bulb right-of-way vacation, file # 08-S2828, a request to vacate a 50 foot radius cul-de-sac bulb at the intersection of Navajo Road and Ottawa Way.
4. HILDERMAN MINOR LAND DIVISION LOTS 1 AND 2 AMENDED PLAT, FILE #08-S2830: This is a request to amend the plat of the Hilderman Minor Land Division (MLD) to adjust the interior lot line between the two lots.
The proposed plat amendment will not adversely affect any neighboring properties or any county agency, nor will it result in any additional lots. Therefore, staff found that the request meets the requirements of the Larimer County Land Use Code.
Staff recommends approval of the Amended Plat of Lots 1 & 2 of the Hilderman MLD and authorization for the Chair to sign the plat when the conditions are met and the plat is presented for signature, subject to the following conditions:
1. The final plat shall be recorded by April 20, 2009, or this approval shall be null and void.
2. Prior to the recordation of the final plat, the applicant shall make the technical corrections requested by the Land Surveyor of the Larimer County Engineering Department.
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners approve the Consent Agenda for October 20, 2008.
Motion carried 3-0.
2. RAMONA HEIGHTS LOT 17, 5AB, 6AB, AND 7AB EASEMENT VACATION, FILE #08-S2827: This is a request to vacate an access and utility easement that runs between two consolidated lots, parcel numbers 30284-36-017 and 30284-18-005, in the Ramona Heights Subdivision located at Red Feather Lakes.
Staff recommends approval of the access easement vacation, subject to the following condition:
1. If adequate access is not in place, a new access easement should be dedicated across the consolidated lots to allow adjacent properties to have access to their properties. The applicant shall provide documentation that adjacent properties have access or dedicate an easement prior to recordation of the easement vacation.
The applicant, Mike Slavic addressed the Board and stated that he owns all of lots affected by the requested vacation. Mr. Slavic requested the vacation because it runs through the middle of his combined lots, in the area he would like to build upon. Mr. Slavic also stated that he built the road presently located on the easement and he has gated it off because it is a private road.
Chair Gibson opened the hearing for public comment and Mr. Schumm readdressed the Board regarding the disjunction between the roads platted on the original plat of the subdivision and the roads that physically exist. He voiced concern that if the roads are ever corrected and built on the existing easements, the requested vacation could cause some of the lots to become inaccessible.
Rachel Casselman, an adjacent land owner, also addressed the Board and voiced concern over loosing access to her lot, 4B. Ms. Casselman asked that the Board preserve the portion of the easement that serves her property.
Chair Gibson closed the hearing to public comment. After some discussion, the Board determined that only the portion of the easement that runs through Mr. Slavic’s lot should be vacated.
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners approve the vacation of the access and utility easement from the southwest corner of Lot 5, Block 18, to the southeast corner of Lot 7, Block 18, of the Ramona Heights Subdivision, in its entirety.
Motion carried 3-0.
5. BECKER SUBDIVISION PRELIMINARY PLAT, FILE #07-S2736: This is a request to subdivide approximately 34.97 acres in the Laporte area into three lots for single-family residential uses. The request includes two appeals to requirements in the Land Use Code. The first appeal is to Section 8.14.2.Q, related to the maximum length of a dead-end road and a requirement for a second point of access. The second appeal is to Section 8.14.2.S, related to connectivity.
During the September 17, 2008, Planning Commission meeting a brief discussion of this topic focused primarily on the layout of the road, the applicant’s proposed project materials, and concerns about the existing access easement. An adjoining property owner raised questions about further development in the area with regard to safety and access onto U.S. Highway 287.
Staff recommends that the Board approve the subdivision request subject to the following conditions:
1. The final plat of the Becker Subdivision shall be consistent with the information contained in file, #07-S2736 or as modified by the conditions of approval.
2. The following fees shall be collected at the time of building permit for new single-family dwellings: the Poudre School fees in lieu of dedication, the Larimer County Capital Transportation Expansion fee and the Larimer County Park Fee in lieu of dedication. The fee amount that is current at the time building permit application shall apply.
3. The applicant shall sign a Final Development Agreement, to be prepared by staff and approved by the county attorney, which details in standard language the conditions of approval and other important information related to the subdivision.
4. The applicant shall sign a Final Disclosure Notice for approval by the county to be recorded with the final plat. This notice will provide information to all lot owners of the conditions of approval and special costs or fees associated with the approval of this project. The notice must include, but is not limited to, all issues related to rural development, the requirement for engineered footings and foundations and the requirement for passive radon mitigation. Other items raised in the review, or related to compliance with the Larimer County Land Use Code, may also be included.
5. Lots 2 and 3 shall include building envelopes to define the areas outside of designated hazard zones and at least 100-foot setback from the irrigation ditch.
6. The final plat, construction plans and supporting documents shall comply with the requirements related to the irrigation standards contained in Section 8.8 of the Larimer County Land Use Code.
7. The area of the shared water well shall be placed in an outlot to be owned in common by each of the lot owners within the subdivision. The out lot shall be of sufficient size to allow for the installation and maintenance of any necessary appurtenances such as storage cisterns and control structures.
8. Adequate access and utility easements shall be provided for piping connections from the well to Lot 2 and Lot 3 and to allow for maintenance.
9. A well sharing agreement outlining how the three lot owners will share in the ownership, operation and maintenance of the water system shall be provided.
10. A water system plan, prepared by a registered professional engineer, for the pumping, storage and distribution of water from the shared well shall be provided for the subdivision file and for use by the lot owners.
11. Installation of the improvements identified in the water system plan shall be completed in conjunction with the initial development of this subdivision.
12. The developer shall construct all sections of the access road within the bounds of the existing access easement, and outside of any neighboring residential properties whose owners have not agreed to have the access road within the boundaries of their property.
13. The developer shall provide right-of-way dedications for the area contained within the subdivision to be shown on the final plat. The developer shall also make all required improvements to Green Mile Drive required by the County Engineering Department. These improvements shall be shown on construction plans provided for review and approval, prior to recording of the final plat.
14. For exterior lighting, all lots are required to use shields that direct lighting downward to minimize lighting impacts off-site.
15. Residential sprinkler systems are required for all new habitable construction for lots at this subdivision.
Mr. Oberschmidt addressed the Board on behalf of the applicant, Gary Becker, and stated he did not have any objection to the conditions of approval as presented by staff.
Chair Gibson then opened the hearing to public comment and Kathleen Dewitt addressed the Board. Ms. Dewitt has an existing easement over the requested subject property which allows her to access her property. She wishes to keep the easement intact and would like it to appear on the final plat of the subdivision.
Claudia Schimert, also addressed the Board and voiced her concern about the increased traffic on Green Mile Drive that would result from approval of the subdivision. Ms. Schimert stated that there are currently no acceleration or deceleration lanes at the intersection of Green Mile Drive and Highway 287. This could result in safety hazards if the amount of traffic increases even slightly.
Chair Gibson closed the hearing to public comment and the Board questioned staff about the increased traffic and the lack of acceleration and deceleration lanes at the intersection of Highway 287 and Green Mile Drive. Staff stated that they had informed the Colorado Department of Transportation (CDOT) of the increase in traffic that would result from the proposed subdivision of land but staff did not receive any correspondence from CDOT voicing concern.
The Board also asked Mr. Oberschmidt to clearly define the existing easement Ms. Schimert spoke of; however, Mr. Oberschmidt stated he could not find any documentation regarding the easement.
Commissioner Rennels suggested that the Board table this issue to clarify easements, road maintenance, and formally request that CDOT evaluate traffic safety at the Highway 287 and Green Mile Drive intersection.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners table the Becker Subdivision Preliminary Plat, file #07-S2726, until November 17, 2008, at 3:00 p.m.
Motion carried 3-0.
6. BONSER PIT/FLYING “W” PIT SPECIAL REVIEW SHOW CAUSE HEARING: This is a hearing to address non-compliance with the Development Agreement related to landscaping requirements. On August 13, 2007, the Coulson Excavating Company signed two Development Agreements with Larimer County outlining the conditions of approval and requirements related to the Flying “W” Pit Special Review and the Bonser Pit Special Review. The Board of County Commissioners granted approval by Findings and Resolution for both Special Review uses on September 19, 2006. The Development Agreements include language related to landscaping required for the gravel pit use as follows:
18. Landscaping Improvements.
(From the Development Agreement for the Flying “W” Pit Special Review.)
Landscaping required for this use shall be installed by the operator within six months of the recording of this agreement, and prior to the operation of the asphalt and concrete recycling facility and batch plant on the Bonser Gravel Pit site. Landscaping shall be installed in accordance with the county approved landscape plan and be maintained as identified on the landscape plan and in good condition. Any dead or dying plant materials shall be replaced within the current or next subsequent growing season. A landscape inspection is required following installation and approval by the county required.
18. Landscaping Improvements.
(From the Development Agreement for the Bonser Pit Special Review)
Landscaping required for this use was installed during the operation of the Flying “W” Gravel Pit site, and approved under that development agreement. Landscaping shall be maintained as identified on the landscape plan in good condition for the life of the Bonser Pit. Any dead or dying plant materials shall be replaced within the current or next subsequent growing season. A landscape inspection is required following installation and approval by the county required.
The Flying “W” Pit and the Bonser Pit are on adjacent sites. They were approved at the same time because the batch plant for the Flying “W” Pit is located on the Bonser site. Access to both sites is off County Road 20E, through the Bonser Pit. The landscape plan for both pits includes a berm that is intended to mitigate visual and noise impacts from the quarry uses on the adjacent residential use. The applicant agreed during the public hearing process to provide this landscape berm and to comply with the conditions of approval. As stated in the development agreement for the Flying “W” Pit, the berm was to be installed within 6 months of approval and before the commencement of off-site hauling operations. The county granted approval for both gravel pits on September 19, 2006. Following the condition of approval and allowing for seasonal changes, the landscape berm should have been constructed and planted by the end of May, 2007, but the applicant did not sign the development agreements until August 13, 2007. Staff efforts to have the development agreements signed earlier were unsuccessful. The applicant began operation of the Flying “W” Pit site, to include construction of the access and scale house improvements on the Bonser Pit site, before the development agreements were finalized. Staff discussions with the applicant to have the berm installed also met with delays. In the Spring of 2008, staff advised the applicant that installation of the berm could no longer be delayed and that failure to install the berm would result in staff requesting approval to schedule a “Show Cause” hearing with the Board of County Commissioners. At that time, the applicant’s representative also advised staff that the landscape plan would have to be revised because of landscaping shown below a power line easement.
On June 25, 2008, the following individuals met at the Bonser property to discuss the landscaping and the berm; County Planner Sean Wheeler, Kelly Bonser (neighboring property owner), Richard Coulson (CEO, Coulson Excavating), Peter Wayland (applicant’s representative) and a representative of the Western Area Power Authority. At that meeting the applicant agreed to provide a revised landscape plan for review by staff within one week. It was also agreed that the berm would be constructed and the landscaping install would begin in September, 2008. Staff contacted the applicant’s representative about the landscape plan status on July 10, 2008, and a plan was provided to the county on August 7, 2008. Staff reviewed the plan and provided a list of changes to the applicant’s representative, with the revised plan being provided on September 15, 2008. Following a series of email and telephone message exchanges, the applicant’s representative advised staff the plan was to build the berm in the October to December timeframe, and install the landscaping in the Spring of 2009. He was reminded the agreement was to have the landscaping installed in September, 2008.
The affected neighboring property owner contacted staff with her concerns about further delays in getting the landscape berm installed and planted in the agreed to timeframe in September, 2008. She noted, correctly, that installation of the landscape berm was long overdue per the development agreement. Without further communications from the applicant or their representative on this issue, the County Manager approved a request by staff to schedule the show cause hearing.
Staff recommends that if the Board chooses to extend the special review approvals for the Flying “W” Pit and the Bonser Pit, that all original conditions will continue to apply along with the additional conditions of approval as follows:
1. The berm on the Bonser Pit site shall be constructed no later than November 28, 2008.
2. By November 28, 2008, plant beds shall be established. Plant materials, hydro-seeding of the berm and the sprinkler system shall also be installed by this date, and a plan for winter maintenance established with a copy provided to Larimer County.
3. All plants that do not survive the winter will be replaced no later than May 15, 2009.
4. On November 28, 2008, and October 31, 2008, or the next business day following this date, staff will inspect the site to ensure the work is complete and in compliance with the approved landscape plan.
5. Staff will schedule a second Board of County Commissioners hearing for the next available Monday afternoon hearing, following the November 28, 2008 deadline. If the work is not complete by the deadlines established by the Board of County Commissioners, consideration shall be given at that time to a revocation of the Flying “W” Pit and Bonser Pit Special Review approvals.
Commissioner Rennels asked why operations began on the property before a development agreement was in place. Mr. Wheeler stated it did take considerable effort on the behalf of staff to get the signatures required by the Coulson Excavating Company to fully execute the agreement. However, he did not know why Mr. Coulson thought it was permissible to begin operations before the proper documents were in place.
Richard Coulson, owner of Coulson Excavating Company, addressed the Board and stated he had begun operations at the site due to an internal misunderstanding pertaining to the completion of the agreement. Mr. Coulson also stated he thought the agreement required the berm to be in place prior to initiating mining operations at the Bonser site, and as Coulson Excavating has only commenced mining the Flying “W” site, he did not feel construction of the berm was relevant. Mr. Coulson explained that because construction of the berm has begun, he is confident completion will occur by the end of November.
Chair Gibson opened the hearing to public comment and Kelley Bonser, neighboring property owner, addressed the Board. Ms. Bonser stated that the Coulson Excavating Company has already had two years to complete the berm, and therefore, the Board should find the company noncompliant. Because noise from the excavation operation is audible from Ms. Bonser’s property, she fears selling her property will be increasingly difficult without a berm in place.
Chair Gibson closed the hearing to public comment and voiced his concern about the noncompliance demonstrated by the Coulson Excavating Company. Commissioner Rennels also voiced her displeasure with the way this matter was handled internally and by the Coulson Excavating Company.
Commissioner Eubanks asked staff whether it is reasonable to believe construction of the berm could be completed by the end of November and staff determined it was.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners open the hearing to public comment.
Motion carried 3-0.
Ms. Bonser again addressed the Board and requested they examine all operations at the Bonser Pit and the Flying “W” Pit for compliance with the agreement as there are other conditions that have not been met.
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners find the applicants for the Bonser Pit and the Flying “W” Pit to be noncompliant with the conditions of approval as agreed upon in the original development agreement. The Board will grant the applicants until November 28, 2008, to demonstrate compliance with all conditions of the development agreement. If the applicants are found to be noncompliant at that time, the applicants must appear before the Board of County Commissioners for another show-cause hearing.
Motion carried 3-0.
7. HOFF CONSERVATION DEVELOPMENT AND LOT SALE PROHIBITION, FILE #03-S2205: This is a request to consider allowing the recordation of the Hoff Conservation Development with a two year lot sale prohibition. On December 27, 2005, the Board of County Commissioners approved the Findings and Resolution for the Hoff Conservation Development Preliminary Plat. In June of 2006, the applicant submitted the Hoff Conservation Development Final Plat application for review and approval. Since the submittal of the final plat application, staff has found that it is ready for recordation.
During the preparation of the development agreement for the Hoff Conservation Development, the applicant indicated concerns regarding the requirement for posting collateral for the development, primarily noting the downturn in the economy, especially related to the housing market. The applicant indicated that the current market conditions do not support the need to begin construction of a development for additional housing, and that carrying $547,000.00 in collateral for at least 2 years on a development that does not have a construction schedule would be burdensome. Staff’s proposal is to allow the recordation of the Hoff Final Plat and Development Agreement with a lot sale prohibition that will require collateral to be posted within two years of the recording of the plat. This will allow the entitlements acquired through the preliminary plat and final plat processes to continue for two years. Without approval of this request, staff will request that the Board vacate the approvals based upon failure to act on the application within a timely manner and the development application and all entitlements will be void.
Also included in the development agreement are provisions to ensure that if the development collateral is not posted in the two year time frame, the development can be made void or an extension must be granted. If extensions to the lot sale prohibition are proposed, they will need to include revisions to the construction plans to conform to current standards, and include updates to the construction collateral to reflect the real construction costs at the time collateral is posted. Finally, the development agreement and Lot Sale Prohibition state that no construction activity will occur on the property until such a time that construction collateral has been provided.
Staff believes this request should be supported by the Board because the current market conditions do not warrant additional residential lots at this time, but hopefully will in the near future at which time collateral can be posted and the development realized. Additionally, staff finds that there are sufficient provisions in the Development Agreement that would allow for vacation of the plat should the developer not meet their obligations.
Staff recommends that the Board approve the recordation of the Hoff Conservation Development and Development Agreement with a Lot Sale Prohibition, as prepared, until such a time that collateral is posted for the construction of the development.
Dino Ditullio, addressed the Board and stated he was in agreement with the terms and conditions proposed by staff.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve the recordation of the Hoff Conservation Development, Development Agreement and Lot Sale Prohibition, file #03-S2205, as outlined above, until such a time that collateral is posted for the construction of the development.
Motion carried 3-0.
There being no further business, the hearing recessed at 6:15 p.m.
LAND USE HEARING
The Board of County Commissioners reconvened at 6:30 p.m. with Jill Bennett, Principal Planner. Chair Gibson presided and Commissioners Eubanks and Rennels were present. Also present were: Frank Lancaster, County Manager; Doug Ryan, Environmental Health Department; Jeannine Haag, Assistant County Attorney; and Melissa Lohry, Deputy Clerk.
Chair Gibson opened the hearing and asked for public comment on the County Budget, Land Use Code or Rubbish Ordinance. No one from the audience addressed the Board regarding any of these topics.
1. LAND USE CODE AMENDMENTS REGARDING THE 1041 REGULATIONS, FILE 08-CA0084: This is a request to add Section 14 and designate power plants, electric transmission lines and electrical substations as Matters of State Interest; also to amend Table 12.3.I. Public Hearing Notice Requirements to the Larimer County Land Use Code.
State Statute 24-65.1-101 et. seq. allows local governments to designate certain areas and activities of state interest and require permits for development involving those areas and activities.
In most cases, these requirements apply to public projects as well as private, so these requirements would replace the Location and Extent process for designated public activities and the zoning or special review process for private development of the same type. The current location and extent process for public activities is a review by the Larimer County Planning Commission for conformity with the adopted master plan.
The proposed code amendment includes language that is similar to the state statute that authorizes local regulation. The statute sets procedures for advertising, conducting hearings and designating additional matters of state interest in the future. The proposed amendment also designates power plants including wind power plants, electrical transmission lines and electric substations as matters of state interest, and includes criteria for approval of 1041 permits for the site location and development of those facilities.
Section 14.0 Areas and Activities of State Interest
14.1 Purpose and Intent
The purpose of this section is to facilitate the identification, designation and regulation of areas or activities of state interest consistent with applicable statutory requirements.
These regulations shall apply to all proceedings concerning the designation and regulation of any development in any area of state interest or any activity of state interest which has been or may hereafter be designated by the Board of County Commissioners, whether located on public or private land.
14.3. Designation Process (for matters of state interest)
A. The Board of County Commissioners may in its discretion designate and adopt regulations for the administration of any matter of state interest.
B. Public hearing required.
1. The Board of County Commissioners shall hold a public hearing before designating any matter of state interest and adopting regulations for the administration thereof. No less than thirty (30) calendar days but no more than sixty (60) calendar days before the designation hearing, the Board shall publish notice in a newspaper of general circulation in the county.
2. The Planning Commission shall hold a hearing and provide a recommendation to the Board on the proposed designation prior to the Board hearing. Notice of any hearing before the Planning Commission shall be published no less than fourteen (14) days before the Planning Commission hearing date in a newspaper of general circulation in the county.
C. Criteria for designations. At the public hearings(s), the Planning Commission and Board of County Commissioners shall consider such evidence as they deem appropriate, including, but not necessarily limited to testimony and documents addressing the following considerations.
1. The intensity of current and foreseeable development pressures.
2. The reasons why the particular area or activity is of state interest, the dangers that would result from uncontrolled development of any such area or uncontrolled conduct of such activity, and the advantages of development of such area or conduct of such activity in a coordinated manner.
3. Applicable policies of the Larimer County Master Plan and any duly adopted intergovernmental agreements affected by the area or activity under consideration.
4. The extent to which other governmental entities regulate the area or activity proposed to be designated.
5. The testimony, evidence and documents taken and admitted at the public hearing.
6. The recommendations of staff and the Planning Commission.
D. Adoption of designation and regulations.
1. At the conclusion of the hearing, or within thirty (30) days thereafter, the Board may, by resolution, adopt, adopt with modification, or reject the proposed designation and accompanying guidelines or regulations.
2. Each designation order adopted by the Board shall, at a minimum:
a. Specify the activity or area of state interest to be designated;
b. Specify the boundaries of the designated area of state interest, if applicable;
c. State reasons why the designation is appropriate in light of the review criteria considered at the public hearings pursuant to the above section; and
d. Specify the regulations applicable to the designated matter of state interest.
14.4. Designated Matters of State Interest.
The Board of County Commissioners, having conducted a public hearing consistent with the requirements of Section 24.65.1-404 C.R.S. and having considered the intensity of current and foreseeable pressures on and within Larimer County; the dangers that would result from uncontrolled conduct of such activity or development in an area of state interest; and the advantages of conduct of such activity in a coordinated manner, does hereby find and declare the following to be matters of state interest. A 1041 permit shall be required prior to any of the following activities, unless specifically exempted.
A. Siting and development of any electrical power plant with a generating capacity of fifty (50) megawatts or more, or any addition to an existing power plant which increases the existing design capacity by fifty (50) megawatts or more. This designation shall not include use of temporary generators at an existing electrical power plant in an emergency situation.
B. Conversion of an existing electrical power plant to a new type of fuel or energy, but not including a change from coal to natural gas, and also not including a change in start-up fuel.
C. Siting and development of a nuclear power plant of any size, or any addition thereto.
D. Siting and development of a wind power plant in which there are more than three wind towers or where any wind generator tower exceeds a hub height of 80 feet, or any addition thereto increasing the existing design capacity of the facility by 10% or more or expanding the area of the plant.
E. Siting of electric transmission lines and appurtenant facilities that are designed to transmit electrical voltages of 69,000 volts or greater, whether erected above ground or placed underground.
F. Any existing transmission line upgrade that involves expanding an easement or right-of-way or increases the height of transmission structures by more than ten (10) feet.
G. Siting of an electrical substation or transition site designed to provide switching, voltage transformation or voltage control required for the transmission of electricity at 69,000 volts or greater.
14.5. Exempt Development Activities.
A. Statutory Exemptions. These regulations shall not apply to any development in an area of state interest or any activity of state interest if any one of the following is true as of May 17, 1974.
1. The specific development or activity was covered by a current building permit issued by the county.
2. The specific development or activity was directly approved by the electorate of the state or the county, provided that approval by the electorate of any bond issue by itself shall not be construed as approval of the specific development or activity.
3. The specific development or activity is on land which has been finally approved by the county, with or without conditions, for planned unit development or land use similar to a planned unit development.
4. The specific development or activity is on land which was either zoned or rezoned in response to an application which contemplated the specific development or activity.
5. The specific development or activity is on land for which a development plan has been conditionally or finally approved by the county.
B. Specific Exemptions. The regulatory provisions of this section shall not apply to any of the following.
1. Any activity which, as of the date of designation as a matter of state interest, meets one of the following criteria.
a. The activity is part of a final discretionary county land use approval and protected by a site specific development plan or agreement whose vesting period has not expired.
b. The activity has a complete application filed and in process for a discretionary county land use approval, provided the applicant (if a public entity) commits to being bound by any conditions of a final county approval or by denial of the application.
c. The specific activity has been acted upon by the Planning Commission as a location and extent application.
14.6. Relationship to other county, state and federal requirements.
A. If a 1041 Permit is required under this Section 14, other sections of the Code shall not apply unless specifically stated in this Section 14, or unless applied by the County Commissioners as conditions of approval. If an appeal to the requirement for obtaining a 1041 permit is granted pursuant to Section 14.7 below, other requirements of the Land Use Code shall apply.
B. Review or approval of a project by a federal or state agency does not obviate, and will not substitute for, the need to obtain a 1041 permit for that project under this section.
C. These regulations shall not be applied to create an operational conflict with any state or federal laws or regulations.
1. The applicant may request that the county application and review process be coordinated with the applicable state or federal agency review process
2. To the extent practicable and appropriate, the county may coordinate its review and approval of the application, including the terms and conditions of such approval, with that of other agencies.
14.7. Appeal of 1041 permit requirement.
An applicant may appeal the requirement for obtaining a 1041 permit.
A. Appeal process.
1. Initiation of appeal. A written application for appeal must be submitted to the planning director on a form provided by the planning department. An application fee established by the county commissioners must be paid when the appeal is submitted.
2. Contents of appeal. The appeal application must include a description of the scope of the proposed activity and evidence that supports the appeal including evidence that demonstrates how section 14.7.B. review criteria are met.
3. Scheduling. Upon receipt of the appeal, the planning director will schedule the appeal on the next available agenda of the county commissioners, no later than 60 days after the date on which a properly completed application is filed.
4. Notice. Notice shall be consistent with the requirements of Section 12.3 Notice of Public Hearing. Notice of the time and place of the appeal hearing must be published in a newspaper of general circulation at least fourteen (14) days before the hearing date.
5. Action by the county commissioners.
a. At the appeal hearing the county commissioners will take relevant evidence and testimony from the person who filed the appeal, county staff and any interested party.
b. The applicant shall have the burden of proving that granting the appeal is consistent with the intent and purpose of this Section 14.
c. The county commissioners may refer an appeal to the planning commission for a recommendation. The decision to refer an appeal to the planning commission will be made by the county commissioners within 14 days of the date the appeal was submitted.
d. The decision of the county commissioners shall be final. The decision may include a requirement for an additional review process including but not limited to Site Plan Review or receipt of a Construction Permit from the County Engineer.
B. The county commissioners shall consider each of the following review criteria and make findings pertaining to each one which, in their discretion, applies to the appeal.
1. Approval of the appeal will not subvert the purpose or intent of this Section 14.
2. The development or activity has received approval through a state or federal permitting process which has utilized review criteria substantially the same as those contained in this regulation, and which has afforded a similar or greater amount of input by affected citizens and property owners of Larimer County.
14.8. Intergovernmental Agreements.
A. Upon request of the State of Colorado or a political subdivision of the state proposing to engage in an area or activity of state interest, the requirements of this Section 14 may be met by the approval of an intergovernmental agreement between the county and such applicant. The county commissioners may, but shall be under no obligation to do so, approve such an intergovernmental agreement in lieu of a permit application and review as provided by this section. In the event such an agreement is approved by the county commissioners, no 1041 permit application to conduct the activity or area of state interest shall be required, provided that all of the following conditions are met.
1. The state or political subdivision applicant and the county must both be authorized to enter into such an agreement.
2. The purpose and intent of this Section 14 must be satisfied by the terms of the agreement.
3. A public hearing must be conducted by the county commissioners. Notice of the hearing must be published once in a newspaper of general circulation in Larimer County not less than 30 nor more than 60 days before the date set for the hearing. Prior to the hearing, the county commissioners shall approve the form of any proposed intergovernmental agreement, subject, however, to final approval of the agreement at the conclusion of or subsequent to the public hearing and based upon the evidence presented there. The public hearing shall be for the purpose of taking comment upon the proposed intergovernmental agreement, the provisions of which have been determined to be acceptable to the applicant and to the county.
4. Both the county commissioners and the state or the governing body of the political subdivision applicant must approve the agreement in the manner required of each of them by the state constitution, statutes and any applicable charter, ordinance or resolution.
B. Exercise of the provisions of this section by the state or an applicant that is a political subdivision of the state shall not prevent that entity from electing at any time to proceed under the permit provisions of this regulation. Additionally, any entity which has previously proceeded under the permit provisions of this regulation may at any time elect to proceed instead to seek the establishment of an agreement.
14.9. 1041 permit application and review process.
A. No person may engage in development in a designated area of state interest or conduct a designated activity of state interest without first obtaining a 1041 permit, unless the county commissioners have granted an appeal to the requirement for a 1041 permit or have adopted an intergovernmental agreement per Section 14.8 such that a permit is not required.
1. If a development or activity subject to these regulations is proposed as an integral part of a land division process, the applicant shall comply with this section prior to obtaining final plat approval.
2. No building permit shall be issued by the county for an activity or development subject to this Section without the applicant having first obtained a 1041 permit, unless the county commissioners have granted an appeal to the requirement for a 1041 permit or have adopted an intergovernmental agreement per Section 14.8 such that a permit is not required.
3. 1041 permits issued under this section shall not be considered to be a site specific development plan and no statutory vested rights shall inure to such permit.
B. General process outline. The following is a general outline of the steps required for any permit decision under this Section. More specific information regarding these referenced steps is contained in Section 12 Common Procedures for Development Review and in the Technical Supplement to the Land Use Code.
1. Pre-application conference.
2. Complete and sufficient application received.
3. Referral to affected agencies.
4. Public hearing before the planning commission and county commissioners.
5. Post-approval requirements.
C. Notice of 1041 permit hearing. Notice shall be consistent with the requirements of Section 12.3. Notice of public hearing.
1. Not later than 30 days after receipt of a completed application for a 1041 permit, the planning director shall set and publish notice of the date, time and place for a hearing before the county commissioners. The notice shall be published once in a newspaper of general circulation in Larimer County, not less than 30 nor more than 60 days before the date set for the hearing.
2. Within the time constraints above, the planning director shall schedule the application for a hearing before the planning commission. Notice of the planning commission hearing shall be published in a newspaper of general circulation for the county at least fourteen (14) days before the hearing date.
3. A notice will be mailed to property owners in the vicinity of the proposal at least fourteen (14) days prior to the hearing(s) according to the procedures and requirements of Section 12.3.3 Mailed notice.
4. C.R.S. §§ 30-28-133(10) and 24-65.5-103(1) require an applicant for development to notify all owners and lessees of a mineral interest on the subject property of the pending application. The applicant must submit, to the planning department, a certification of compliance with this notice requirement, prior to the initial public hearing for a 1041 permit, except for those types of development applications specifically excluded below. Failure to submit the required certification of notice will result in the public hearing being rescheduled to a later date. According to C.R.S. §§ 24-65.5-102(2) an application for development does not include applications with respect to electric lines, crude oil or natural gas pipelines, steam pipelines, chilled and other water pipelines, or appurtenances to said lines or pipelines; therefore notification of mineral interest owners and lessees is not required for those activities.
D. Any application for a 1041 permit which relates to the location, construction or improvements of a major electrical or natural gas facility as contemplated by 29‑20‑108 C.R.S. as amended shall be subject to the terms of that statute. In the event of an inconsistency between the statute and these regulations, the statute shall control.
E. The planning director may, when necessary, decide that additional expertise is need to review a project, according to the procedure detailed in Section 8.01A of this Code.
14.10. General requirements for approval of a 1041 permit application.
A. The applicant must submit a complete and sufficient application that is consistent with the submittal requirements that are stated at the pre-application conference.
B. A 1041 permit application may be approved only when the applicant has satisfactorily demonstrated that the proposal, including all mitigation measures proposed by the applicant, complies with all of the applicable criteria set forth in this Section 14. If the proposal does not comply with all the applicable criteria, the permit shall be denied, unless the county commissioners determine that reasonable conditions can be imposed on the permit which will enable the permit to comply with the criteria.
C. If the county commissioners determine at the public hearing that sufficient information has not been provided to allow it to determine if the applicable criteria have been met, the board may continue the hearing until the specified additional information has been received. The commissioners shall adopt a written decision on a 1041 permit application within 90 days after the completion of the permit hearing. The 1041 permit will be in the form of a Findings and Resolution signed by the Board of County Commissioners. The effective date shall be the date on which the Findings and Resolution is signed.
D. Review criteria for approval of all 1041 permits.
1. The proposal is consistent with the Master Plan and applicable intergovernmental agreements affecting land use and development.
2. The applicant has presented reasonable siting and design alternatives or explained why no reasonable alternatives are available.
3. The proposal conforms with adopted County standards, review criteria and mitigation requirements concerning environmental impacts, including but not limited to those contained in Section 8 of this Code.
4. The proposal will not have a significant adverse affect on or will adequately mitigate significant adverse affects on the land on which the proposal is situated and on lands adjacent to the proposal.
5. The proposal will not adversely affect any sites and structures listed on the State or National Registers of Historic Places.
6. The proposal will not negatively impact public health and safety.
7. The proposal will not be subject to significant risk from natural hazards including floods, wildfire or geologic hazards.
8. Adequate public facilities and services are available for the proposal or will be provided by the applicant, and the proposal will not have a significant adverse effect on the capability of local government to provide services or exceed the capacity of service delivery systems.
9. The applicant will mitigate any construction impacts to county roads, bridges and related facilities. Construction access will be re-graded and re-vegetated to minimize environmental impacts.
10. The benefits of the proposed development outweigh the losses of any natural resources or reduction of productivity of agricultural lands as a result of the proposed development.
11. The proposal demonstrates a reasonable balance between the costs to the applicant to mitigate significant adverse affects and the benefits achieved by such mitigation.
12. The recommendations of staff and referral agencies have been addressed to the satisfaction of the county commissioners.
14.11. Additional specific review criteria and standards.
A. Additional review criteria for power plants.
1. Proposed transmission facilities have been identified and included as part of the power plant project.
2. Wind power plants must meet the following standards:
a. All towers must be set back at least 750 feet from property lines and public rights of way.
b. The wind generator turbines and towers must be painted or coated a non-reflective white, grey or other neutral color.
c. Facilities must not be artificially illuminated unless required by the FAA.
d. Facilities must not be used to display advertising.
e. Electrical controls must be wireless or underground and power lines must be underground except where the electrical collector wiring is brought together for connection to the transmission or distribution network, adjacent to that network.
f. Noise generated from the wind power plant must be in compliance with the Chapter 30, Article V. Noise of the Larimer County Code.
g. The operator of the plant must minimize or mitigate any interference with electromagnetic communications, such as radio, telephone or television signals caused by the plant.
h. Towers for wind generators must be constructed of a tubular design and include anti-climb features.
i. The facility design must use best practices available to protect wildlife.
B. Additional review criteria for electrical transmission lines.
1. The siting and design of the proposal addresses potential levels of electrical and magnetic fields (EMFs) by exercising “prudent avoidance” to limit exposure.
14.12. Post approval requirements.
Prior to the issuance of a 1041 permit approved under this section the follow conditions must be met, if applicable.
A. The applicant may be required to obtain a construction permit from the county engineer.
B. A development agreement may be required as a condition of approval of the 1041 permit and may include requirements for performance guarantees.
C. An agreement concerning decommissioning, abandonment or reuse of the permitted facility may be required as a condition of approval of the 1041 permit.
14.13. Technical revisions and 1041 permit amendments.
A. Any change in the construction or operation of the project from that approved by the county commissioners shall require staff review and a determination made by the planning director in writing as to whether the change is a technical revision or1041 permit amendment.
B. A proposed change shall be considered a technical revision if the planning director determines that there will be no increase in the size of the area affected or the intensity of impacts as a result of the proposed change(s); or any increase in the area or intensity of impacts is insignificant.
C. Changes other than technical revisions shall be considered 1041 permit amendments. A permit amendment shall be subject to review as a new permit application.
Table 12.3.I Public Hearing Notice Requirements:
Type of Hearing
30 days but no more than 60 days
Designation of a matter of state interest
30 days but no more than 60 days
Designation of a matter of state interest
**Days are the minimum number of days prior to the hearing.
Chair Gibson opened the hearing for public comment and many individuals from industry addressed the Board including. Michael Dahl and Brian Moeck, Platte River Power Authority and Jim Byrne, Poudre Valley Rural Electric. All of whom discussed their opinion of the proposed amendments. Concerns over the language of section 14.4.F were echoed by all. After some discussion, the Board determine the section should read as it appears above.
Barry Feldman also addressed the Board and voiced his concern about the partnering of staff and industry during the crafting of the proposed amendments. Mr. Feldman also argued against the proposed “grandfathering” of any project that has not yet initiated construction.
Chair Gibson closed the hearing to public comment and some discussion ensued regarding transmission line voltage, capacity, and electromagnetic fields. The Board determined that an increase in any of these measurements would require significant alterations to the physical appearance of the line and would require an additional hearing, as stated in section 14.4.F.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve the Land Use Code amendments to add Section 14, Areas and Activities of State Interest, and to amend Table 12.3.I, concerning public hearing notice requirements, file #08-CA0084, as illustrated above.
Motion carried 3-0.
There being no further business, the hearing adjourned at 7:45 p.m.
TUESDAY, OCTOBER 21, 2008
The Board of County Commissioners met at 9:30 a.m. with Frank Lancaster, County Manager. Also present were: Donna Hart and Deni LaRue, Commissioners’ Office; Marc Engemoen, Public Works Department; Mark Peterson and Martina Wilkinson, Engineering Department; Rob Helmick and Michael Whitley, Planning Department; Doug Ryan, Environmental Health Department; Jeannine Haag and William Ressue, Assistant County Attorneys; and Melissa Lohry, Deputy Clerk.
1. PUBLIC COMMENT: There was no public comment.
2. APPROVAL OF THE MINUTES FOR THE WEEK OF OCTOBER 6, 2008: Commissioner Eubanks reminded the Board that he was not present for the hearings on October 6, 2008.
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners approve the minutes for the week of October 6, 2008.
Motion carried 2-0, Commissioner Eubanks abstained.
3. APPROVAL OF THE MINUTES FOR THE WEEK OF OCTOBER 13, 2008:
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve the minutes for the week of October 13, 2008:
Motion carried 3-0.
4. REVIEW OF THE SCHEDULE FOR THE WEEK OF OCTOBER 27, 2008: Ms. Hart reviewed the upcoming schedule with the Board.
5. CONSENT AGENDA:
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners approve the following items as presented on the Consent Agenda for October 21, 2008.
10212008A001 COMMUITY DEVELOPMENT BLOCK GRANT CONTRACT BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS, THE STATE OF COLORADO AND THE DEPARTMENT OF LOCAL AFFAIRS
10212008A002 DRAINAGE AGREEMENT BY AND BETWEEN THE BOARD OF COUNTY COMMISSIONERS AND BALLA INVESTMENTS, LLC, OWNER, COLLINSWOOD DESIGNS, INC
10212008R001 FINDINGS AND RESOLUTION APPROVING THE MEADOWLARK ESTATES PRELIMINARY RURAL LAND PLAN
10212008R002 FINDINGS AND RESOLUTION APPROVING THE OBERMEYER HYDRO INC. AMENDED SPECIAL EXCEPTION
10212008R003 FINDINGS AND RESOLUTION APPROVING THE PETITION OF THE MCBLAIR RANCH SHOOTING RANGE AND APPEAL TO SECTION 9.7 OF THE LAND USE CODE
10212008R004 FINDINGS AND RESOLUTION APPROVING THE JOHN DEERE DRIVE REZONING
10212008R005 FINDINGS AND RESOLUTION APPROVING THE VACATION OF AN EASEMENT IN VISTA GRANDE SUBDIVISION, LOT 63
10212008R006 FINDINGS AND RESOLUTION APPROVING THE CONSOLIDATION OF LOTS 17, 5A AND 5B, 6A AND 6B, AND 7A AND 7B OF RAMONA HEIGHTS SUBDIVISION
10212008R007 FINDINGS AND RESOLUTION APPROVING THE RODERICK MINOR LAND DIVISION AND APPEAL TO SECTION 4.1.5.B.1a OF THE LAND USE CODE
10212008R008 FINDINGS AND RESOLUTION APPROVING THE AMENDED PLAT OF LOTS 1 AND 3 IN SIERRA VISTA TERRACES
MISCELLANEOUS: Application for Colorado Division of Housing Loan/Grant Assistance; Larimer County Works Policy, Segregated Funds Policy; Woody Biomass Utilitzation Grant Support Letter; Annual Performance Evaluation Report of County Manager.
LIQUOR LICENSES: The following licenses were approved and issued: N & C Enterprises, doing business as Berthoud Discount Liquors – Retail Liquor Store – Berthoud; Maria & Jose Gasca, doing business as Mexican Inn – Hotel and Restaurant – Loveland; Swing Station LLC, doing business as Swing Station – Tavern – LaPorte; Northern Colorado Potters Guild & Studio – Special Event 6% – Fort Collins; Riverbend Campground LLC, Doing business as Riverbend Resort – 3.2% – Loveland.
Motion carried 3-0.
6. REVIEW COMMENTS FOR WINDY GAP FIRMING PROJECT DRAFT ENVIRONMENTAL IMPACT STATEMENT: Mr. Ryan presented and overview of the Windy Gap Firming Project Draft Environmental Impact Statement (EIS) provided by the U.S. Army Corps of Engineers. He then presented the response comments drafted by staff in reaction to the EIS.
The Board found the comments to be a comprehensive compilation of the county’s questions and concerns.
M O T I O N
Commissioner Eubanks moved that the Board of County Commissioners approve authorization of signature of the Board Chair on the proposed comment letter.
Motion carried 3-0.
7. REVIEW PROCESS FOR UPCOMING RELEASE OF NORTH I-25 DRAFT ENVIRONMENTAL STATEMENT: Mr. Peterson and Ms. Wilkinson informed the Board of Colorado Department of Transportation’s (CDOT) upcoming release and review of the North I-25 Draft Environmental Impact Statement (DEIS). CDOT will release the DEIS on November 18, 2008, and host three public hearings with presentations and public comment on the DEIS, publish a copy of the DEIS on their website and place a number of copies of the DEIS at pre-selected locations along the Front Range. The Board’s response to the DEIS is due December 15, 2008.
Commissioner Rennels asked that a paper copy of the DEIS be provided for public review at the Larimer County Courthouse and that a link to the electronic copy be placed on the Larimer County website.
8. COUNTY MANAGER WORKSESSION: Mr. Lancaster called the Board’s attention to a $2,500 request from the Rocky Mountain Rail Authority to help support their 2009 budget. Commissioner Eubanks reminded the Board of an agreement between the Board of County Commissioners and the Rocky Mountain Rail Authority to provide $2,500 for the Authority’s 2009 budget.
The Board approved the request and asked that the amount of $2,500 be added to the county budget for 2009.
9. COMMISSIONER ACTIVITY REPORT: The Board noted their attendance at events during the past week.
10. LEGAL MATTERS: Ms. Haag and Mr. Ressue requested that the Board go into Executive Session to receive legal advice.
M O T I O N
Commissioner Rennels moved that the Board of County Commissioners go into Executive Session to receive legal advice on specific legal questions, as outlined in 24-6-402(4)(b) C.R.S.
Motion carried 3-0.
The Board came out of Executive Session and the following action was taken:
M O T I O N
Commissioner moved that the Board of County Commissioners allow WOLF to increase the number of dogs at their facility to thirty-six, with the additional six dogs being those rescued from Gilpin County for a period of time until January 30, 2009, at which time the number of dogs must return to thirty. If the number of dogs does not return to thirty by January 30, 2009, the Board will take the steps necessary to remove the excess dogs.
Motion carried 3-0.
There being no further business, the meeting adjourned at 11:30 a.m.
GLENN W. GIBSON, CHAIR
BOARD OF COMMISSIONERS
CLERK AND RECORDER
Melissa E. Lohry, Deputy Clerk