LARIMER COUNTY PLANNING COMMISSION

Minutes of July 21, 2010

 

The Larimer County Planning Commission met in a regular session on Wednesday, July 21, 2010, at 6:30 p.m. in the Hearing Room.  Commissioners’ Dougherty, Glick, Hart, Hess, Miller, Weitkunat and Wendt were present.  Commissioner Cox was absent.  Commissioner Wallace presided as Chairman.  Also present were Russell Legg, Chief Planner, Matt Lafferty, Principle Planner, Rob Helmick, Senior Planner, Michael Whitley, Planner II, Jeff Goodell, Engineering Department, Doug Ryan, Health Department and Jill Wilson, Planning Technician and Recording Secretary. 

 

Mr. Lafferty accompanied Commissioners Glick, Hart, Miller, Wallace and Weitkunat on a site visit to Loveland Tall Pines Rezoning and Donaldson Special Review.  Commissioner Hess visited the sites independently.

 

Chairman Wallace welcomed new members, Bill Wendt and Curtis Miller.

 

COMMENTS BY THE PUBLIC REGARDING THE COUNTY LAND USE CODE: 

None

 

COMMENTS BY THE PUBLIC REGARDING OTHER RELEVANT LAND USE MATTERS NOT ON THE AGENDA:  

None

 

APPROVAL OF THE MINUTES FOR THE JUNE 16, 2010 MEETINGS:   MOTION by Commissioner Glick to approve the minutes, seconded by Commissioner Hart.  This received unanimous voice approval.

 

AMENDMENTS TO THE AGENDA:

Staff requested that the Loveland Tall Pines Rezoning, file #10-Z1801, be moved to the consent agenda.  Staff also requested that the Election of Officials be moved to the end of the agenda.  The members of the Planning Commission agreed to the amendments.

 

REMOVED ITEM:

Mr. Lafferty noted that the Otte Subdivision, file #10-S2969 was removed from the agenda.

 

CONSENT ITEM:

 

ITEM #1  LOVELAND TALL PINES REZONING #10-Z1801:  Mr. Whitley provided background information on the request to rezone a 6.0 acre parcel from C-Commercial and M-Multiple family to PD-Planned Development to accommodate existing commercial and residential uses consistent with the Loveland Comprehensive Plan.  The site is located north of Eisenhower Boulevard (Highway 34), approximately 0.5 miles west of Boyd Lake Road.

 

DISCUSSION:

Commissioner Glick moved that the Planning Commission adopt the following Resolution:

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Loveland Tall Pines Rezoning, file #10-Z1801, for the property described on “Exhibit A” to the minutes, be approved with the following conditions:

 

 

1.   The rezoning shall be effective upon the recordation of the Loveland Tall Pines Findings & Resolution.

 

2.   Building permits shall be obtained for all structures over 120 square feet that were constructed since 1972 when building permits were first required by Larimer County. 

 

3.   A change of occupancy building permit shall be obtained for the prior conversion of Building A (as identified on the attached plot plan) from a residential use to a commercial use. 

 

4.   The property owners shall obtain building permits, change of occupancy permits, and inspection approvals within 90 days of approval of the rezoning.

 

5.   The property owners shall sign an Annexation Agreement to the City of Loveland within 90 days of approval of the rezoning. 

 

6.   No building permit or permits shall be issued that cumulatively resulting in a building expansion of more than 25% of any individual building existing on the property as of May 14, 2010 as shown on the plot plan in File #10-Z1801.

 

7.   No building permit shall be issued resulting in a new principal building on the subject property.

 

8.   Change of occupancy permits shall be required as applicable.

 

9.   Site Plan Review will be required for any change of use and/or expansion on the property which intensifies the impacts created by the uses on the property.  At the time of any future Site Plan Review, Staff will review the proposal for compliance with the Larimer County Land Use Code Section 8 standards and other site design requirements including, but no limited to: site access, traffic impacts, paved parking and adequate parking spaces, drainage impacts, stormwater quality, erosion control, floodplain regulations and Transportation Capital Expansion Fees.

 

10.   Buildings D & E do not have water or sewer service.  At the time of rezoning, Buildings D & E were used for storage and single-person operated trade uses with no additional employees and no customer traffic.  Redevelopment or changes in use that require a Site Plan review will trigger the need to connect those structures to a public sewer system.

 

11.   The Planned Development (PD) zoning shall be applied to the entire property. The permitted uses, lot building and structure requirements, setbacks and structure height limitations for the Loveland Tall Pines Planned Development shall be as follows:

 

 

Loveland Tall Pines PD

A.   Principal uses:

Agricultural

1.   Farm (R)

2.   Garden Supply Center (R)

3.   Pet animal facility (R)**

4.   Pet animal veterinary clinic/hospital (R)**

5.   Apiary (R)

 

Residential

3. Single-family dwelling (R)*

       Group home a for the developmentally disabled (R)*

4. Group home for the aged (R)*

5. Group home (R)*

6. Group home for the mentally ill (R)*

Commercial

7. Professional office (R)

8. General retail (R)**

9. General commercial (R)

10. Personal service (R)

11. Flea market (R)**

12. Instructional facility (R)

13. Outdoor display/sales (R)

14.   Clinic (R)

Institutional

14. Health services (R)

15. Rehabilitation facility (R)

Recreational

16.  Place of Amusement or recreation (R)**

16. Membership club/clubhouse (R)

Industrial

17. Enclosed Storage (R)

18.  Trade Use (R)

19. Outdoor Storage (R)**

Utilities

20. Commercial mobile radio service (R)**

Transportation

20. Parking lot (R)

 

 

 

 

 

 

*   Only Buildings A & B may be used for residential uses.  Buildings A & B

                               may also be occupied by non-residential uses if the applicable change                  

                               of use permits, building permits and Site Plan Review approvals are

                               obtained as applicable.

                       

** Pet animal facilities, pet animal veterinary clinic/hospitals, general             

      retail, flea markets, places of amusement or recreation, outdoor

      storage, and commercial mobile radio services are allowed only at    

                                             the “by right” intensities as described in Section 4.3 of the Land

                                             Use Code. 

B. Lot, building and structure requirements:

1.   Minimum lot size:

a.   100,000 square feet (2.3 acres) if a well or septic system is used.

b.     15,000 square feet (0.34 acre) if public water and sewer are

  used.

 

2.   Minimum required setbacks: (If more than one setback applies, the greater setback is required.)

a.   Street and road setback (Refer to section 4.9.1 setbacks from highways, county roads, and all other streets and roads.) The setback from a street or road must be 25 feet from the lot line, nearest edge of the road easement, nearest edge of right-of-way, or nearest edge of traveled way, whichever is greater.

b.   Side yards--Ten feet.

c.   Rear yards--Twenty feet.

d.   Refer to section 4.9.2 for additional setback requirements (including but not limited to streams, creeks and rivers).

3.   Maximum structure height--40 feet.

4.   The parcel may include the principal buildings that are existing at the time of rezoning as documented on the plot plan in the Loveland Tall Pines Rezoning File #10-Z1801.

 

Commissioner Weitkunat seconded the Motion.

 

Commissioners' Dougherty, Glick, Hart, Hess, Miller, Weitkunat, Wendt and Chairman Wallace voted in favor of the Motion.

 

MOTION PASSED:  8-0

 

ITEMS:

 

ITEM #2  AMENDMENTS TO THE LARIMER COUNTY LAND USE CODE #10-CA0109:   Ms. Madson provided background information on the request to make housekeeping changes to Sections 0.1 definitions, 5.2.5 Land Use and Density (PD), 5.7.3 Amended Plat review criteria, 7.4 Special Events and 18.3.3 (signs for recreational vehicle parks).

 

 

PUBLIC TESTIMONY:

None

 

DISCUSSION:

Commissioner Weitkunat moved that the Planning Commission adopt the following Resolution:

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Amendments to the Larimer County Land Use Code, file #10-CA0109, be approved as follows:

 

1.    Amend the Land Use Code, Section 0.1, as follows:

 

0.1 Definitions:

Townhouse. A single-family dwelling unit constructed in a group of three or more attached units in which each unit extends from the foundation to roof and with open space on at least two sides. attached to at least one other such dwelling by a common vertical wall, and each unit has its own front and rear access to the outside and no unit is located over another unit. 

 

Primary heat source.   A heating system capable of maintaining room temperatures at 70 68 degrees Fahrenheit at a point three feet above the floor and two feet from exterior walls in all habitable rooms during cold, inclement weather at all times, even when the structure is not occupied. 

 

Structure. Anything constructed or erected and that requires a permanent location on or in the ground or attachment to something having a permanent location on or in the ground, but not including fences, six feet or less in height and retaining walls four feet or less in height, irrigation facilities, poles, lines, cables or other transmission or distribution facilities of public utilities. Landscape and associated nonliving ornamental landscape features or materials, such as rocks and edging, are excluded from this definition . 

 

2.    Amend the Land Use Code, Section 5.2.5, by deleting the folowing:

 

Section  5.2.5.  Land use and density.

All planned land divisions must include a development agreement (see section 12.6 (post-approval requirements)) that specifies land uses, lot coverages, densities, improvements and other details of the development. Upon recording of the final plat and development agreement for the planned land division, the rezoning to PD-planned development will be effective and the development agreement will be the controlling document for purposes of land use, density, improvements and other details of development.

 

 

 

 

 

 

 

3.    Amend the Land Use Code, Section 5.7, by adding the following language:

 

Section 5.7 - Amended Plat

5.7.3. - Review criteria.

F.  Any covenants, deed restrictions or other conditions of approval that apply to the original lots must also apply to the resultant lots and be noted on the final plat, except those changes to a condition or note on a plat that are approved with this application.  The county commissioners shall consider the original reason or circumstance for a condition or note on a plat when approving a change.

 

4.    Amend the Land Use Code, Section 7.0, as follows:

 

Section 7.0. - SPECIAL EVENTS

7.4. - PROCESS

A.   Application: At least 45 60 days prior to the requested start date of the proposed special event requiring a permit, a special event permit application shall be submitted to the county manager as designee of the Larimer County Planning Director. The application shall include the following information:

 

5.    Amend the Land Use Code, Section 18.3.3, by deleting the following:

 

18.3.3.  Density, roads, setback requirements, signs and outdoor recreation areas.

I.  One sign, not to exceed 40 square feet, may be located within the recreational vehicle park to identify its location. The sign must comply with section 8.7 of this Code .

 

Commissioner Hart seconded the Motion.

 

Commissioners' Dougherty, Glick, Hart, Hess, Miller, Weitkunat, Wendt and Chairman Wallace voted in favor of the Motion.

 

MOTION PASSED:  8-0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ITEM #3  DONALDSON SPECIAL REVIEW #09-Z1764:  Mr. Helmick provided background information on the request for a nursery/landscape business in the AP-Airport zoning district located north of County Road 30 and east of County Road 9.  He noted that he provided the commission with a copy of a revised plan for the sanitation system on the site before the hearing.  He stated that the issues had been discussed with the applicant, and the applicant and Staff were in general agreement with the Conditions of Approval.  He noted that there was a change to Condition 10, which would be amended to state, “The existing septic system absorption field shall be protected with a barrier curb and planted with a suitable grass cover within 120 days of this approval.”  He explained that analysis had found that the sanitation system was in the parking lot of the site.  The recommendation from the Development Services Team and Health Department was that the system needed to be relocated with a suggested timeframe for that relocation.  The applicant had suggested an alternative, which was to leave the system in its current location, eliminate the parking spaces, and provide a physical buffer so that it would no longer be driven across.  The Health Department and Development Services Team had no conflict with that alternative.  He also explained that the applicant had proposed that the full range of trade uses be allowed on the property and approved with the Special Review.  Given the limited services available to the site, the Development Services Team recommendation was that it was not supportable due to those limited utilities and services.  He clarified that the approved uses would be nursery, tree farm, landscape maintenance, or similar uses as stated in Condition 9.  The Planning Department supported defining similar uses as a use with similar physical impacts such as traffic, employees, parking, etc.  The applicant was concerned that if the current landscaping business left then he would be limited to finding only another landscaping business to occupy the site. 

 

He believed that the applicant was okay with the “similar uses” language, and The Development Services Team was recommending approval of the proposal.

 

Commissioner Weitkunat asked if the applicant would have to work with the airport regarding lighting.

 

Mr. Helmick replied that Section 8.15 of the Land Use Code required that all commercial uses had an approved lighting plan.  The AP zone district was in a critical area of the airport and required that lighting not interfere with the airport and the aircrafts.

 

Commissioner Miller confirmed that “similar uses” would be correlated to the number of employees.

 

Mr. Helmick replied yes and explained that the site was currently designed for 2 full time employees and 30 seasonal employees.  For example, if there was a trade use where there was limited work done on site and employees dispersed during the day then it would be a similar use.

 

Commissioner Wendt asked if the similar uses would need to be a seasonal use?

 

Mr. Helmick replied no. 

 

Commissioner Miller asked about number of employees on site and the facilities on site.

 

 

 

Mr. Helmick stated that the number of employees and impacts would have to be determined at the time.  If a certain number of employees stayed on the site then impacts to the sanitation system, water, etc. would need to be examined.  The initial concern of allowing all trade uses was due to the site not being connected to public sewer.  He stated that in a number of trade uses such as a woodworking shop, paint shop, etc. they had the potential to discharge non-domestic wastes in the ground; therefore, the use needed to be evaluated and “similar uses” needed to be defined.

 

Commissioner Hart thought that the intent was not to have an intense use in the AP-Airport zoning district

 

Mr. Helmick stated that the Code did not prohibit industrial or commercial occupation in the AP zone district. 

 

Commissioner Hart asked if the Health Department was satisfied with the applicant’s solution to the sanitation system.

 

Doug Ryan, Health Department, replied yes.  He explained that he met the applicant at the site, and the Health Department was satisfied that the sanitation absorption field could be adequately protected.

 

Jeff Donaldson, applicant, stated that his concerns were regarding the “similar uses” and how that could be clarified.  He did not want the Special Review to be approved specifically for a landscape/tree nursery and then have to go through the process again if a different use wanted to locate at the site.  He wanted to be able to accommodate a new tenant expeditiously if needed. 

 

 

Commissioner Hart asked if “similar uses” was still an outstanding issue for him.

 

Mr. Donaldson replied that he was okay with the “similar uses” but just wanted to know if it could be clarified more.

 

PUBLIC TESTIMONY:

None.

 

DISCUSSION:

Commissioner Weitkunat asked for clarification on Condition 13.

 

Mr. Helmick explained that if the proposal was granted then there would be two permitted principle uses on the property; therefore, the applicant would need to separate the land from the residential use. 

 

Commissioner Miller sympathized with Mr. Donaldson’s concerns regarding the lack of clarification of “similar uses” and a possible lengthy timeframe to get another use in the location. 

 

Commissioner Glick moved that the Planning Commission adopt the following Resolution:

 

 

 

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Donaldson Special Review, file #09-Z1764, for the property described on “Exhibit B” to the minutes, be approved with the following conditions, clarification to Condition 9 that the definition of “similar uses” would be in relation to traffic count, number of employees, and waste generation, and change to Condition 10 to state, “The existing septic system absorption field shall be protected with a barrier curb and planted with a suitable grass cover within 120 days of this approval.”:

 

1.    This Special Review approval shall automatically expire without a public hearing if the use is not commenced within three years of the date of approval.

 

2.    The Site shall be developed consistent with the approved plan and with the information contained in the Donaldson Special Review, File # 09-Z1764, except as modified by the conditions of approval or agreement of the County and applicant.  The applicant shall be subject to all other verbal or written representations and commitments of record for the Donaldson Special Review.

 

3.    Failure to comply with any conditions of the Special Review approval may result in reconsideration of the use and possible revocation of the approval by the Board of Commissioners

 

4.    This application is approved without the requirement for a Development Agreement.

 

5.    In the event the applicant fails to comply with any conditions of approval or otherwise fails to use the property consistent with the approved Special Review, applicant agrees that in addition to all other remedies available to County, County may withhold building permits, issue a written notice to applicant to appear and show cause why the Special Review approval should not be revoked, and/or bring a court action for enforcement of the terms of the Special Review.  All remedies are cumulative and the County’s election to use one shall not preclude use of another.  In the event County must retain legal counsel and/or pursue a court action to enforce the terms of this Special Review approval, applicant agrees to pay all expenses incurred by County including, but not limited to, reasonable attorney’s fees.

 

6.    County may conduct periodic inspections to the property and reviews of the status of the Special Review as appropriate to monitor and enforce the terms of the Special Review approval.

 

7.    The Findings and Resolution shall be a servitude running with the Property.  Those owners of the Property or any portion of the Property who obtain title subsequent to the date of recording of the Findings and Resolution, their heirs, successors, assigns or transferees, and persons holding under applicants, shall comply with the terms and conditions of the Special Review approval.

 

8.    The applicant shall pay the Transportation Capital Expansion Fees (TCEF) within 120 days of the recordation of the Findings and Resolution approving the Special Review. 

 

 

9.    The applicant proposes to include the full range of trade uses in the approval.  This is not supportable due to the limited services available to the site and the nature of our evaluation cannot/did not examine the potential full range of those uses.  The only uses approved are those of a nursery/tree farm and landscape maintenance or similar uses.

 

10.       The existing septic system absorption field shall be protected with a barrier curb and planted with a suitable grass cover within 120 days of this approval.

 

      11.       A final site lighting plan must be submitted, reviewed and approved with in 120 days to insure that there is no conflict with the operations of the airport.  

 

      12.       The applicant must provide a separate isolated pad designed to contain materials and possible spills or eliminate their outdoor storage, within 120 days.

 

      13.       The use must be separated from the existing home on the property within 120 days.  The Land Use Code does not allow for multiple principal structures on a single parcel.

 

      14.       The access to CR 9 must be improved pursuant to the requirements of the Engineering Department, within 120 days.

 

      15.       At the time of a land division, the additional Right of Way identified as needed for the adjacent county roads must be dedicated. 

 

 

Commissioner Dougherty seconded the Motion.

 

Commissioners' Dougherty, Glick, Hart, Hess, Miller, Weitkunat, Wendt and Chairman Wallace voted in favor of the Motion.

 

MOTION PASSED:  8-0

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ITEM #4  DEEP WATER METROPOLITAN DISTRICTS SERVICE PLAN #06-G0108:  Mr. Legg provided background information on the request for the formation of the Deep Water Metropolitan District which would be situated northwest of Wellington, adjacent to County Road 70 at County Road 9.  He stated that the request was originally heard by the Planning Commission on April 19, 2006.  The project had been tabled by the Board of County Commissioners numerous times since that date.  A Service Plan Review Committee reviewed the initial proposal and recommended denial due to the financial aspects of the plan.  Since that time the applicant had revised the Service Plan and worked with the Special District Review Team to address the points of concern.  As a result, a revised plan was submitted, and Staff and the Special District Review Team were recommending approval of the special district as proposed.  The plan was for one metropolitan district rather than the two originally proposed and development was no longer a part of the service plan.  Along with that, the plan did not allow for the assessment of ad verlorum taxes without submittal of a modification of the plan to the County.  The revised plan called for the creation of a water authority as a separate governmental authority to be formed by an intergovernmental agreement between the District and the Town of Wellington.  He stated that a draft agreement had been made between the applicant and the Town of Wellington.  He noted that without a district the applicant could have a private water company and sell the water.  He also noted that part of the provisions stated that the initial costs were to be assumed by the Town of Wellington. 

 

Commissioner Hess asked if the district court had approved the proposal.

 

Mr. Legg replied that the district court approval was one of the last steps in a metro district formation.  After the County had made a recommendation it would go to the district court followed by a vote of the electors, which in the current case would all be property owners in district.

 

Commissioner Hess asked if the Town of Wellington would be voting on it.

 

Mr. Legg replied no.  They were not a property owner or elector.

 

Commissioner Miller confirmed that the water court had approved the use.

 

Mr. Legg replied that the water court had approved the source of the water. 

 

Commissioner Hart asked if there was an attempt to get input from surrounding property owners.

 

Mr. Legg replied that there was no neighborhood meeting in relation to a service district plan.  The Planning Commission hearing and Board of County Commissioner hearing would be the public process.  He stated that he had received calls from the public regarding the proposal.

 

Commissioner Glick asked what would happen if the Town of Wellington did not provide the development funds.

 

Mr. Legg noted that included in the service plan was a modification revision stating that any major change would need to come back before the County for approval; therefore, that could include any kind of financial change. 

 

Commissioner Hess asked if all of the members of the district were family members.

 

Mr. Legg replied yes. 

 

Richard Seaworth, applicant, explained how the water would be extracted.  He stated that when the proposal first went before the board they did not have water court approval.  They had now obtained approval to be allowed to discharge the excess water out of the oil field that came up with the oil.  The Colorado Water Court stated that they could discharge into State waters., and it was also decided that the water was non-tributary.  The court did not limit the amount of water that they could produce but did limit them on how they got the water back out.  He mentioned that he had a decree for his property for indoor use which stated that there could be enough water for 60 homes; however, he did not have the intention of building that many homes.  He explained that the Town of Wellington was not in the district so they would not be able to vote; nevertheless, they would have one board member on the district board.  He stated that they could produce approximately 160-acre foot of water per year, and he was already producing the water.  He stated that he was happy with having a private water company because it allowed him to operate however he wanted but he had decided to let the Town of Wellington have a part in the District. 

 

Commissioner Wallace clarified that when the water came up with the oil it was discharged through a pipe onto Mr. Seaworth’s farm and then it went down stream.  She asked where the water would be stored. 

 

Mr. Seaworth explained that it would be stored underground.  He stated that it was the first project of its kind.  They were taking a waste product and turning it into beneficial use. 

 

Commissioner Wallace asked if he could sell the water to any other entity.

 

Mr. Seaworth replied yes.  In his decree he made sure that they could use the water for any source/use.

 

Commissioner Wallace clarified that the decree would be transferred to the Town.

 

Mr. Seaworth explained that just one decree would be transferred, and Wellington would get the number one use of the water. 

 

Commissioner Wallace asked what would happen with the water if Wellington did not use it.

 

Mr. Seaworth stated that it would go downstream, and they would keep track of it and sell it downstream.

 

Commissioner Miller pointed out that he was running his business like the CBT ran its system

 

Commissioner Glick asked how the priority would be split between him and Wellington.

 

Mr. Seaworth stated that it would all go to Wellington. 

 

 

 

Commissioner Glick wondered if houses built in the area would not have water if Wellington had first priority.

 

Mr. Seaworth stated that it was Larimer County’s thoughts that he should have a public entity to cover that kind of problem and that was the purpose of having the special district instead of having a private company.

 

Commissioner Wallace confirmed that the water would not be used for the possible 60 houses on the property because the priority was to Wellington.  If another decree was obtained then it would be used for the houses.

 

Commissioner Glick wondered what the lifespan of the oil field was.

 

Mr. Seaworth stated that he believed it would last about 2200 years.  The idea was to get more pumping for more oil and more water.  He stated that they had been doing the project for 4 years.

 

Commissioner Miller asked if he would be selling water shares.

 

Mr. Seaworth replied no, acre-feet would be sold.

 

Commissioner Dougherty asked how many future decrees/metro districts he foresaw.

 

Mr. Seaworth stated that it would depend on who bought how much.  In the future they would figure out how much they had and who needed it.

 

Commissioner Miller confirmed that if the project did not get approved he would extract the water any way.

 

Mr. Seaworth replied yes, and he had been doing it for the past 4 years.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Brad March, Wellington Town Attorney, explained that the Town of Wellington had an interest in the water.  The oil and the water would be pumped, and the water could be reinjected regardless of what the outcome of the proposal was.  If the Town was going to be interested in the water then they wanted to have an entity to deal with the water.  He pointed out that the water could be sold, pumped, injected or drained into the tributary aquifer and would be regardless of the outcome.  The Town’s interests had said that as a governmental entity they wanted to have a traditional governmental protection associated with the use of the water.  If there was a special district that owned the water that special district would become subject to the open records act, and the way the water was discharged and sold would be subject to contract and would be subject to public review.  He explained that Mr. Seaworth had looked into annexing into Wellington but it had not been successful.  In the future he may be able to annex, and if those properties were in the Town of Wellington, there was a desire from the town to make sure that there was a governmental entity over the resource.  He understood that there were concerns with the reinjected water contaminating the aquifer but the operation would occur whether the proposal was approved or not, and the special district would create an entity that would have regulatory authority.  He explained that the Town did not want to go into an agreement with Mr. Seaworth unless he pursued creating a special district to have a governmental entity that allowed for more transparency. 

 

PUBLIC TESTIMONY:

Jo Ann Blehm, lived in Wellington and represented Elder-Blehm Land and Livestock Company.  She stated that the land and property had been owned by her family since 1916, and her property bordered the west side of the subject property.  In 2006 when the applicant and his company, Wellington Water Works, applied to the water court for tributary and non-tributary water nine different responders opposed the applications because of the fundamental concern that the areas’ aquifer would be irreparably injured because no one knew what effect it had.  In a court action Wellington Water Works (3W) was permitted to use 1/15th of 161 feet of water attributed to watering the oil field.  It amounted to about 10 acre feet per year.  She stated that the applicant had not complied with the specific orders.  She had personally observed the delivery of water from the Wellington Water Works treatment plant to the Seaworth water pit every week all year long and it was a violation of the court order.  The water court also dealt with a concern of the water being drawn from Seaworths proposed well for residential development.  The sole terms were imposed to help ensure that the water pump consumed from 3W would be adequately replaced to prevent injury to senior water rights.  The jurisdiction of the court was extended so the issue of injury from the operation of the plan could be reviewed for 5 years after the proposed development of the Seaworth property reached a 50% buildout.  If court orders were not being followed, a serious question arose of whether representations within the application could be relied upon.  The premise of the application was by developing new water Seaworth’s would be doing Larimer County and the State a service and provide water to the farmers.  If the County Commissioners allowed the District the applicant would go back to the water court with a stronger position to ask for more wells.  She pointed out that no one could show what effect it was having on the water.  Irrigation and domestic wells could surge.  Non-tributary water belonged to the overlaying landowner, and non-tributary water could be claimed.  Elder-Blehm and other land owners must protect their water.  The County Commissioners owed it to the citizens to take no action that would injure their rights.  There were too many questions unanswered and too many issues at stake to allow a metropolitan district to proceed.  She urged the Planning Commission to recommend denial of the request.  The uncertainty of water unavailability and the unproven operation and practices of 3W created too great of a chance of injury to many Larimer County landowners and residents to warrant taking such a risk. 

 

Commissioner Dougherty was under the impression that the aquifer was not being depleted from the water.  He asked if her farm had any wells dry due to the operation.

 

Ms. Blehm replied that she did not have any irrigation wells. 

 

Neil Haley, stated that he had been following the proposal over the past 4 years.  It was a fascinating technology but he was concerned about what would happen when someone else wanted to do the same thing.  He believed that setting up a public utility gave that utility a lot of leeway, and the experience with the Boxelder Authority had discouraged many Northern Larimer County residents.  He felt that the approval needed to wait because there was no signed agreement with the Town of Wellington yet.  If the agreement did not happen then the financials would not work.  He had a background of organic chemistry and stated that it was not water that came out of the oil well it was brine.  The waste accumulated was not mentioned and safety along with precedence was a concern.

 

Gail Meisner, stated that she had a farm 0.5 miles south of the subject property.  When the initial proposal came in there was a lot of public opposition.  She believed that the water would go back into the aquifer for their wells and that the farm well on the Seaworth property would be what was sold to the Town of Wellington.  She also questioned Mr. Seaworths association and presidency of the Underground Well Users Association that mandated their farm wells as she felt that it was a huge conflict of interest.  She pointed out that the service plan stated that the water from the well would be conveyed to a Reverse Osmosis Plant which showed that it was coming from the aquifer that she and others used for their stock and farm wells.  If the water from the oil wells was reinjected and the water from the farm wells was used year round it would completely deplete the water for the well.  She was also concerned about the condition of the water from the oil wells and what would it do to the aquifer that they used for their animals and homes.  The citizens of Wellington seemed to not have input on the cost that they would incur.  She asked how the water was going to get there and who would pay for the water treatment.

 

Luanne MacNaughton, lived north of the subject property.  She asked how the water would get to the Town without proposing another flagpole annexation.  She also wondered what the cost of the water would be as the Town had never disclosed it.  She wanted to know if the fees would be handed down to the citizens. 

 

Mr. Seaworth explained that he had one decree to inject into State waters and one decree to take the waters out.  The 10-acre foot was to take the water out.  He stated that the water had already been under Ms. Meisner’s property for 3 years and the water quality had increased.  He stated that the price would be tied to the price of CBT.  He stated that he was not going to assess a fee. 

 

Commissioner Dougherty had questions about the service plan regarding ad velorum taxes and final formation with Wellington.

 

Mr. Seaworth stated that the plan was written by Mr. March, Wellington Town Attorney.  He understood that if they did decide to do a tax then it would have to come back for approval by the county. 

 

 

Commissioner Miller asked where the wastewater went from the filtration system.

 

Mr. Seaworth explained that it went into the injection well. 

 

Commissioner Hart asked what the difference would be to the water and adjacent property owners regarding having a district and not having a district.

 

Mr. Seaworth replied that he would continue the operation as a private company instead of a public entity.

 

Commissioner Glick asked what the amount of brine was in the water.

 

Mr. Seaworth stated that there was no brine.  He stated that the injection well went down to 7,000 feet.

 

Mr. March stated that the proposal had been reviewed by the town and confirmed that contracts still needed to be completed.  He stated that there had been years of engineering and design put into the project, and the Town had determined that it was a water source worth exploring.  The Town conveyed that if the proposal was to be pursued then there needed to be a governmental entity that was managing the water to create transparency.  The Town wanted to put it into an entity for a protection to residents and surrounding residents.  He acknowledged that there had been no formalized contracts made but stated that it was his belief as the Town Attorney that Wellington would examine the water regardless.  The Town was trying to get a governmental entity to act as the owner of the water, and a special district seemed to provide the most protection to the public.  He noted that the Town could not control what was going on absent a governmental entity.  He stated that they were going to look into the wastewater concerns, which was a condition they were imposing in conjunction with the purchase of the water.  He explained that they could not create an authority until a district was created.  He noted that the special district had been written so that it could not assess taxes

 

Commissioner Wendt asked about the lack of a financial plan.

 

Mr. March stated that the financial plan submitted with the first plan concerned the County Attorney.  He explained that the metropolitan district state statue stated that one could create a metropolitan district in anticipation of developing a resource and in anticipation of a future need.  It was not an immediate need but the Town has discussed having an emergency water supply so it had a redundant source to enhance the Town’s water supply and quality.  He noted that there would not be a charge created by taxes, and the Town would end up funding the water.

 

Mr. Legg explained that the county attorney and staff were concerned that the commitment from the Town be in place in order to move forward.  The proposed agreement between the District and the Town of Wellington was an expression of their intent that such an agreement would occur.  The consensus was that there could not be a signed agreement between something that did not exist yet (the District) and the Town.

 

Mr. March remarked that the agreement had been provided to the Town Board and the Board had stated that they were willing to enter into the agreement. 

 

 

Commissioner Wallace mentioned that if there was not an agreement between the Town of Wellington and the proposed entity the proposed entity would not be approved and it could not exist.  If there was not the entity there would not be the agreement and if there was not the agreement then there would not be the entity. 

 

Commissioner Wendt asked Mr. Legg to address the lack of a financial plan from the previous proposal.

 

Mr. Legg explained that the first proposal had a financial plan which was based on a certain number of homes and expenditures.  The Special District Review Team examined the plan and believed that it provided too high of a burden for the potential number of homes along with ad velorum tax concerns.  The review team recommended that the proposal be denied because of the inadequacy of the plan.  The current proposal did not have a financial plan because development was not currently being proposed.  If development did occur in the future, the county would have full control of the approval of a land division.  That approval would depend on the financial viability of where the water would come from.  In addition, he noted that the service plan stated “Any significant change in the service plan, including assessment of ad velorum taxes on properties in the District, will be submitted to the County (or the Town if the Service Area is subsequently annexed into the Town.)” 

 

DISCUSSION:

Commissioner Glick remarked that if the District was approved there would be a better chance that the potential users of the water would stay in Northern Colorado versus down stream.  He was bothered that the applicant could vote in the District but he believed that the system would determine if the District would be viable or not.

 

Commissioner Weitkunat commented that it was an interesting process and the idea was a new direction for the future.  The process had to start somewhere and she felt that there was a benefit to having a partnership with Wellington. 

 

Commissioner Hess was concerned that a precedence would be formed by approving the proposed District. 

 

Commissioner Dougherty remarked that the water would be used whether the District was formed or not, and he preferred that there be oversight in where the water went.  He appreciated all of the public comment.

 

Commissioner Miller remarked that the project would continue no matter what.  It would either be privatized or be public; therefore, he thought that it should be the most visible as possible so that the water could be monitored.  He understood that there could not be an agreement with the Town until a District was formed and approved.  He pointed out that the water would be provided at market share.  He stated that the water was not being abstracted from the aquifers, and he did not see it affecting the farmers. 

 

Commissioner Hart stated that the residents of Larimer County, both in and out of the City limits of Wellington, would have their rights protected through a metropolitan district rather than a private entity.

 

 

Commissioner Wallace stated that there was the responsibility to provide for more people.  The actual use, extraction, and injection of the water was being monitored by the State and Water Court.  The responsibility of the county was to figure out a mechanism to provide for the sale of the water to the City of Wellington.  She pointed out that Wellington could contract with Mr. Seaworth privately, and a District would provide the public with the ability to see what was occurring.  It would be a transparent process; therefore, she would approve the District although she had other reservations about development. 

 

Commissioner Hart moved that the Planning Commission adopt the following Resolution:

 

BE IT RESOLVED that the Planning Commission recommend to the Board of County Commissioners that the Deep Water Metropolitan Districts Service Plan, file #06-G0108, for the property described on “Exhibit C” to the minutes, be approved.

 

Commissioner Weitkunat seconded the Motion.

 

Commissioner Hess voted against the Motion.

 

Commissioners' Dougherty, Glick, Hart, Miller, Weitkunat, Wendt, and Chairman Wallace voted in favor of the Motion.

 

MOTION PASSED:  7-1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ELECTION OF OFFICIALS:

Commissioner Dougherty nominated Commissioner Hart for Chairman.  Commissioner Hess seconded the nomination.  Chairman Wallaced moved to close the Nominations and to cast a unanimous ballot electing Commissioner Hart as Chairman, seconded by Commissioner Hess.  MOTION PASSED.

 

Commissioner Hess nominated Commissioner Glick for Vice Chairman.  Commissioner Dougherty seconded the nomination.  Chairman Wallace moved to close the Nominations and to cast a unanimous ballet electing Commissioner Glick as Vice Chairman, seconded by Commissioner Dougherty. MOTION PASSED.

 

Commissioner Dougherty nominated Commissioner Hess for Secretary.  Commissioner Hart seconded the Nomination.  Chairman Wallace moved to close the Nominations and to cast a unanimous ballet electing Commissioner Hess as Secretary, seconded by Commissioner Dougherty.  MOTION PASSED. 

 

 

 

REPORT FROM STAFF:  Mr. Lafferty reminded the Commission of their upcoming meetings. 

 

ADJOURNMENT:   There being no further business, the hearing adjourned at 9:23 p.m.

 

 

These minutes constitute the Resolution of the Larimer County Planning Commission for the recommendations contained herein which are hereby certified to the Larimer County Board of Commissioners.

 

 

 

 

_______________________________                      ______________________________

Nancy Wallace, Chairman                                          Gerald Hart, Secretary

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

The East 1/2 of the East Y of the Southeast ¼ of the Southwest ¼ of Section 8, Township 5 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado.

 

EXCEPT:

 

A Tract of land located in the Southwest Quarter of Section 8. Township 5 North, Range 68

West of the Sixth Principle Meridian, Larimer County, Colorado and being more particularly

described as follows:

Commencing at the South Quarter corner of said Section 8 and considering the East line of the

Southwest Quarter of said Section 8 to bear North 00° 45’ 00” East and with all other bearings

herein relative thereto:

Thence North 00° 45’ 00” East along the East line of the Southwest Quarter of said Section 8,

883.80 feet to the True Point of Beginning;

Thence North 89° 57’ 32” West, 328.44 feet;

Thence North 00° 44’ 17” East, 432.00 feet;

Thence South 89° 57’ 32” East, 328.53 feet to the Northeast corner of the Southeast Quarter of

the Southwest Quarter of said Section 8;

Thence South 00° 45’ 00” West, along the East line of the Southwest Quarter of said Section 8,

432.00 feet to the True Point of Beginning.

 

Also known by street and number as: 3167 E. Eisenhower, Loveland, CO 80537

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT B

 

A tract of land located in the Southwest Quarter of Section 21, Township 6 North, Range

68 West of the 6th Principal Meridian, County of Larimer, State of Colorado being more

particularly described as follows:

 

Considering the South line of the Southwest Quarter of said Section 21 as bearing North

87°05'26" West and with all bearings contained herein relative thereto:

 

BEGINNING at the Southwest Quarter Corner of said Section 21; thence, along the

West line of said Southwest Quarter, North 00°11'39" East, 2068.53 feet to a point on the

South line of a tract of land described at Reception No. 2000037309 at the Office of the

Larimer County Clerk and Recorder; thence, along said South line, South 89°48'05"East,

550.00 feet to a point on the East line of said Reception 2000037309; thence, along said

East line, North 00 °11'55" East, 553.5 1 feet; thence, South 87°01'48" East, 2109.57 feet

to a point on the East line of the Southwest Quarter of said Section 21; thence, along said

East line, South 00°15'53" West, 2645.71 feet to the South Quarter Corner of said Section

21; thence, along the South line of the Southwest Quarter of said Section 21, Northwest

87°05'26" West, 2656.85 feet to the POINT OF BEGINNING.

 

The above described parcel contains 6,718,051 square feet or 154.225 acres, more or less

and is subject to all easements and rights-of-way now on record or existing.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EXHIBIT C

 

 

 

Property Description (Deep Water District #1):

That portion of the Southwest Quarter of Section 8, Township 9 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado, being more particularly described as follows;

 

Considering the South line of said Southwest Quarter as bearing North 87°56'52" East and with all bearings contained herein relative thereto;

 

Beginning at the Southwest corner of said Southwest Quarter; thence along the South line of said Southwest Quarter, North 87°56’52” East 380.44 feet, more or less, to a point on the Southerly prolongation of the East right of way of Larimer County Road No. 11 said point also being the TRUE POINT OF BEGINNING; thence departing said South line and along said Southerly prolongation and said East right of way and the Northerly prolongation of said East right of way, North 00°50’55” West 1393.86 feet; thence departing said Northerly prolongation, North 87°56’52” East 1095.63 feet; thence South 00°43’05” East 1393.92 feet, more or less, to a point on the South line of said Southwest Quarter; thence along said South line, South 87°56’52” West 1092.45 feet, more or less, to a  point on the Southerly prolongation of the East right of way of Larimer County Road No. 11 and the TRUE POINT OF BEGINNING.

 

The above described parcel contains 35.0 acres, more or less, and is subject to any existing easements and/or rights of way of record.

 

Property Description (Deep Water District #2):

That portion of the Southeast Quarter of Section 8, Township 9 North, Range 68 West of the 6th P.M., County of Larimer, State of Colorado, being more particularly described as follows;

 

Considering the North line of said Southeast Quarter as bearing South 89°33'07" West and with all bearings contained herein relative thereto;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Beginning at the Northeast corner of said Southeast Quarter; thence along the North line of said Southeast Quarter, South 89°33’07” West 894.12 feet, more or less, to the Northwest corner of that certain parcel of land as described in deed recorded at reception #2003-0123273, records of said County; said point also being the TRUE POINT OF BEGINNING; thence departing said North line and along the Westerly and Southerly line of said certain parcel of land the following nine (9) courses and distances; thence South 18°47'41" East 9.98 feet; thence South 31°42'50" East 229.07 feet; thence South 30°52'02" East 296.13 feet; thence South 44°55'22" East 380.16 feet; thence South 43°49'57" East 55.98 feet; thence South 41°57'51" East 57.43 feet; thence South 39°36'45" East 77.85 feet; thence South 35°39'33" East 191.49 feet; thence South 89°43'56" East 106.82 feet, more or less to a point on the East line of said Southeast Quarter; thence departing said Southerly line and along said East line, South 00°16'04" West 1597.51 feet, more or less to the Southeast corner of said Southeast Quarter; thence along the South line of said Southeast Quarter, South 87°56'52" West 2565.30 feet, more or less, to the Southwest corner of said Southeast Quarter; thence along the West line of said Southeast Quarter, North 00°35'16" West 2702.94 feet, more or less, to the Northwest corner of said Southeast Quarter; thence along the North line of said Southeast Quarter, North 89°33'07" East 1709.64 feet, more or less, to the Northwest corner of that certain parcel of land as described in deed recorded at reception #2003-0123273, records of said County and the TRUE POINT OF BEGINNING.

 

The above described parcel contains 145.7 acres, more or less, and is subject to any existing easements and/or rights of way of record.