HomeMy WebLinkAbout2.0 Staff ReportExhibits (9/14/09) Board of County Commissioners
Battlement Mesa Land Investments, LLC -Takings Determination
Exhibit Exhibit
Letter
lA to Z)
A Garfield Countv Unified Land Use Resolution of 2008, as amended
B Aoolication
c Staff Memorandum
D Notice of Anticipated Enforcement
E Resolution 82-121
F Resolution 79-132
G Memorandum of Surface Use Agreement (Recorded 10/31/2007 at Rec 736468)
H Surface Use Agreement dated August 6, 1990 (Recorded 7 /8/99 at Rec 548481)
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REQUEST
PROJECT
APPLICANT
LOCATION
EXISTING ZONING
I. DESCRIPTION
September 14, 2009
Board of County Commissioners
Takings Determination
Takings Determination pursuant to Section 12-107
of the Unified Land Use Resolution of 2008, as
amended
Well Pads APO GV 82-5 and PA 41-9
Battlement Mesa Investment Partners
Battlement Mesa Planned Unit Development -SE X
Section 5 and NE X Section 9, Township 7 South,
Range 95 West of the 6th P.M.
Planned Unit Development pursuant to Resolution
82-121, as amended
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The Garfield County Code Enforcement Officer issued a Notice of Anticipated Enforcement
(NOAE) on August 7, 2009 to Williams Production RMT Company (as mineral lessee) and
Battlement Mesa Land Investments, LLC (as surface owner) for Extraction and Processing of
Natural Resources for two gas well pads, GV 82-5 and PA 41-9, on lands within the Battlement
Mesa PUD. On August 10, 2009 an application was submitted by Williams Production RMT
Company for a Takings Determination related to the NOAE and a hearing was held before the
Board of County Commissioners on August 17, 2009. Battlement Mesa Land Investments, LLC
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September 14, 2009
Board of County Commissioners
Takings Determination
submitted its application for a Takings Determination on August 12, 2009 and requested delay
of scheduling a hearing until the outcome of the August lih hearing was determined. This
hearing is limited to the application submitted by Battlement Mesa Land Investments, LLC for a
takings determination.
The NOAE was issued relative to Resolution No . 82-121 (EXHIBIT E), approved by the Garfield
County Board of Commissioners, which contains the zoning regulations for lands within the
Battlement Mesa PUD boundary. The PUD zoning requires a Special Use Permit for Extraction
and Processing of Natural Resources within all sub-zones in the PUD . The County has not
received application for, nor issued, Special Use Permits for either of these sites however the
August 17, 2009 hearing for Williams Production resulted in a decision that would allow the
continuation of the extraction and processing activity pending a 60 day submittal timeframe for
special use permits related to the sites.
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The land on which the violation occurs is
identified as Tax Parcel #2407-081-00-152
which encompasses 1,248.873 acres
within the PUD boundaries .
The maps, adjacent and below, indicate
the Battlement Mesa PUD boundary, the
Oil & Gas activity occurring in the vicinity,
and the locations where the activity is
Supplemental Information
September 14, 2009
Board of County Commissioners
Takings Determination
A recorded Surface Use Agreement (SUA) exists dating back to August 6, 1990 {EXHIBIT H).
Page 25 of that SUA, Section 17, stipulates that uBarrett shall provide Surface owners with a
copy of all applications for Special Use Permits for operations within Battlement Mesa or within
one-half mile of the boundary thereof, when such applications are filed in Garfield County,
Colorado.0 Barrett was Williams predecessor in interest on these leaseholds, and Battlement
Mesa Land Investments, LLC the surface owners.
EXHIBIT G, Memorandum of Surface Use Agreement, advises all interested parties of the
existence and validity of an additional Surface Use Agreement as an unrecorded instrument on
file with the respective parties. County Staff had requested a copy of that SUA and it has not
been provided.
JI. CODE REQUIREMENTS RELATED TO LAND USE VIOLATIONS
Article XII of the Garfield County Land Use Resolution of 2008, as amended contains provisions
related to Enforcements, Violations, Penalties and Appeals. 12-103 B., Enforcement
Procedures, Notice of Violation, states that "Whenever the Enforcement Officials have personal
knowledge of any violation of this land Use Code, such person shall give written Notice of
Anticipated Enforcement to the purported violator that unless the purported violator files notice
af taking of private property to the Board of County Commissioners within three {3) days of
receipt of such notice, such person shall give written Notice of Violation to the purported
violator to correct or cease and desist from continuing the violation" and further that "If the
purported violator requests a takings determination under Section 12-106 of the land Use Code,
no notice of violation shall be issued until a final decision on that request hos been rendered by
the Boord of County Commissioners. 0
12-107 A. 1. Decision Review, Takings Determination, General A property owner who
is ... recipient of a notice of potential violation, who believes they ore adversely affected or
aggrieved by a determination by an Enforcement Offlcial ... ond who believes or contends that
the determination ... constitutes a taking of all economically beneficial use of private property
without just compensation in violation of the United States or Colorado Constitution or a taking
of a vested property right, said property owner shall as a pre-requisite to any appeal, defense of
or judicial review of a decision, request a hearing pursuant to this section before the Board of
County Commissioners.
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BALCOMB & GREEN, P.C.
ATTORNEYS A'l' LA ·w
EDWARD MULHALL, JR. P. 0 . DRAWER 790
EXHIBIT
I E:>
K ENNETH BALCOMB
<I 920·2005>
SCOTT BAL COMB
LAWRENCE R. GREEN
TIMOTHY A . THULSON
DAVID C. HALLFORD
C H R ISTOPH ER .l. COYLE
THOMAS J. HARTERT
C H RISTOPHER l. GEI GER
SARA M. DUHN
818 COLORADO AVENUE
GLENWOOD SPRINGS, COLORADO 81602
OF COUNSEL :
DANIEL C. WENNOGLE
SCOTT GROSSCUP
CHAD J. LEE
Via Hand Delivery
T E LEPHONE: 970.945.6546
FACSIMILE: 97t;).945.8902
www .balccimbgreen .com
Augus t 12, 2009
Chris Chappelle, Code Enforcement Officer
Garfield County Building and Pla nning Department
108 81h Street, Suite 401
Glenwood Springs, CO 81601
RE: APPLICATION FOR TAKINGS DETERMINATION FOR BATT LE MENT ME SA
LAND INVESTMENTS, LLC
Dear Chris:
JOHN A. THULSON
Our law fi rm represents Battl e m e nt M esa Land Investments, LLC. It received a Notice of
Anticipa ted Enforcement ("the Notice") from your department on August 10, 2009. Enclosed is
its executed Takings Determination Application ("the Appli cation") as ca ll ed for by the Notice.
We understand the county is no longer charging a fee for this appli cation due to the nature of a
takings determination. Please sc h edule a h eari ng before the Board of County Commissioners
within forty-five days of t oday.
As you know, the Application fo rm itse lf purports to r equ ire extensive documentation to
support this application, despite the fact that Sec ti on 12 of the new La n d Use Code requires
none of this information. Due t o the 3-d ay tim eframe, and certain proprie tary iss u es that n eed
to be r esolv ed with Williams Production RMT, we are unable to submit this addition a l
supporting document a tion today. We understand that the county is willing to accept
supporting documentation within the next fourtee n days.
However, many o f these items a r e irre levant to the issu e of a t akings d e termination as
defined by the Code. Much of the requested information, such as the "owner's tax bracket" is
privat e, intrusive, and has absolutely no bearing on whether a constituent has b een deprive d of
a vested property rig ht. Instead, thi s r eques t su gges ts that appli cants will be treated differently
based on their socioeconomic status. We therefor e refu se to submit these m a teria ls and in stead
intend t o submit eviden ce sh ortly which supports our claim for (1) ou.r cli en t 's d e nial of the
BALCOMB & GREEN, P.C.
ATTORNEYS AT LA\V
Garfield County
Battlement mesa Land Investments, LLC
August 12, 2009
Page2
allegations contained in the notice; (2) the existence of a "taking" as defined by the code; and (3)
the value of the taking itself, which will be substantial.
Likewise, we will not execute the Payment Agreement Form due to the nature of this
application. It is inappropriate to require a landowner to pay for the county's review of the
constitutionality of county staff member's actions. This may be a separate constitutional
violation in and of itself. As a state actor, the county must provide its constituents with notice
and an opportunity to be heard prior to a deprivation of a protected property interest. See, e.g.,
Eason v. BOCC of Boulder County, 70 P.3d 600 (Colo. App. 2003).
Also enclosed is a copy of a statement of authority for Battlement Mesa Land
Investments, LLC designating Eric Schmela as its authorized agent.
We will submit supporting documentation in the near future. Please let us know if you
have any questions.
Very truly yours,
BALCOt..ffi & GREE!'J, P.C.
By: __::(_:::____!..e:, ~-Al {-----=:::___
cc: Battlement Mesa Land Investments, LLC