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HomeMy WebLinkAbout5.0 PC Staff Report 01.27.2010PLANNING COMMISSION MEETING MINUTES FROM JANUARY 27, 2010 PC Members Present Staff Present Phil Vaughan Cheryl Chandler John Kuersten Lauren Martindale Michael Sullivan Fred Jarman, B&P Director Deborah Quinn, Assistant Cty Atty. Roil call was taken and the following members are absent tonight: Bob Fullerton, Jock Jacober, Sean Martin, Adolfo Gorra, and Greg McKennis. The first item on the agenda tonight is a continued public hearing from June 24, September 23, and October 28, 2009. The Applicant has totally re -noticed this application for tonight's hearing date. Request is for review of a Special Use Permit to allow for Processing, Storage and Material Handling of Natural Resources and a Special Use Permit for Development on the Floodplain. The applicant for a Gravel Pit is for property located % mile east of Rifle between the Colorado River and 1-70. The Applicant is River's Edge, LLC. Present tonight representing the Applicant are Greg Lewicki of Lewicki and Associates and he is the Project Engineer for the Applicant. Also present is Pete Sigman with United Company, representing property owner. Phil Vaughan explained the process we will follow for this item tonight. Only the four Planning Commissioners that were present when application was opened can participate in the vote for this item. All members present can participate in the discussion. Deborah Quinn reviewed noticing with the applicant. Greg Lewicki answered questions about noticing. Proof of publication was provided showing a publication date of December 24, 2009 in the Rifle Citizen Telegram. Notice posted in the newspaper included the property owner's name, a legal and practical description of the property, and a description of the request, the date, time and place of the hearing. Posting of the site occurred on December 22, 2009 and was still in place as of 10 days ago. Greg Lewicki stated that they used the Garfield County records during the first week of December to obtain the names and addresses of adjoining property owners and any mineral owners. Notice of hearing was sent to all of these people by certified return receipt letter. Six of the letters were returned and Greg Lewicki said they were all mailed to the address that was last listed with the Assessor's office. Deborah Quinn stated that based on evidence and testimony given it is okay to proceed tonight: 1 Phil Vaughan swore in all speakers for this item. Fred Jarman wanted to enter the exhibits into the record. Exhibits A — W are listed with your staff report and he wanted to add to that list the following exhibits: Exhibit X: 2008 Land Use Resolution, as amended Exhibit Y: Email dated 1/26/2010 from Will Spence with the Colorado Division of Wildlife Exhibit Z: Letter dated 1/25/2010 from Patricia Gelatt with the US Fish & Wildlife Service Exhibit AA: Letter from Greg Lewicki which is concerning concessions at the Scott Pit for USFW for new eagles nest (Mr. Jarman dated that document today) Exhibits A —AA are accepted into the record. Fred Jarman will make his presentation next and he will try to be brief just because we have already covered a lot of these issues. This is a request for a Special Use Permit for processing, storage and material handling of natural resources and a Special Use Permit for development in the floodplain. The applicant is River's Edge. LLC and the subject property is located % mile east of the main interstate intersection of Rifle between the Colorado River and 1-70. The parcel is approximately 93 acres in size which 25 of those acres will be disturbed for mining. The zoning on the property is Agriculture/industrial (A/I). Slides of the site and surrounding areas were shown. An existing condition map was shown. The proposed site plan map and the original site plan maps were also shown. Operations and staging center were pointed out on site plan. A drastic change was made from the original proposal and that is mining area 1 is to the west and mining area 2 is to the east. The area for the supporting infrastructure was pointed out noting that it's out of the flood plain but also as part of the proposal that they have committed to a prohibition on batch plants or this mining activity and that is a concession that is important to note for a number of reasons but primarily with the City if Rifle being about a mile down the road with their main entrance a gateway and that was a big issue of theirs. Additional State Permits are required from specific agencies and have yet to be obtained. Copies of those permits shall be provided to the County. Applicant is looking to develop in the flood fringe and a map amendment has been approved by FEMA to correct the floodway boundaries. Typical reclamation/re-vegetation site plan was shown. The main project challenges discussed back at the June 24th meeting included: *Visual Impacts •Impacts to County Road system 2 • Reclamation Plan and proposed slopes •Question of irrigation • Compatibility with Comprehensive Plan • Compatible with the City of Rifle's Gateway Plan • American Bald Eagle A slide of the currently proposed Reclamation Plan was shown next. There will be two mining areas. An internal road connects both of the mining areas. Mining area consists of 25 acres. There are a number of reclamation conditions that staff thought was important. Some of the most important ones were timing of when certain things had to happen. Staff also wants to make sure that whatever gets approved that is the reclamation plan that both Garfield County operates on and also the Division of Reclamation, Mining and Safety (DRMS). Special Use Permit will be valid for six (6) years from the date of approval by the BOCC. At the end of six years the applicant would come to the Board and apprise the Board of where they are with their mining plan and that would give the Board another opportunity to take a look at the operation and make sure either it can be continued as an extended project or there are issues that need to be addressed. Fred Jarman showed slide of general Cross Section next. This item is in your Land Use Code. Slopes need to be designed with this schematic in mind. The original staff recommendation was that we could not support because of the key issues that Fred Jarman had mentioned before. Since that time, the text amendment was processed and approved by the Board. No changes were made from what the Planning Commission had proposed to them. Planning Commission must still make finding for: • Visual Impacts: Need finding for the sufficiency of the minimization of impacts because it is dose to Rifle. • Wetland criteria for the slopes: The applicant is proposing different set of slopes than what the Code recommends here and they have in their application reasons why they believe that their set of slopes makes sense. Lauren Martindale has a question about the Airport comment that was submitted. Were those submitted based on the understanding that there would be a 5:1 or a 3:1 scope? Fred Jarman said they didn't even ask us. Lauren Martindale clarified that it basically made no difference to them as to what the slope would be. Fred Jarman said that is correct. 3 •Irrigation is the next issue: Fred Jarman said if you believe in what their proposal is for the irrigation for the reclamation plan then you have the authority to vary from that standard so long as you state the finding as to why you think it's a good idea. •To ensure that the development and overall land use policies within the county that will affect the municipalities are compatible with the existing zoning and future land use objectives of that municipality. That's the City of Rifle Gateway issue. The staff report that was written for tonight gives a recommendation of approval with a set of conditions. After Fred Jarman wrote this report he decided to call the DOW to make sure that the eagle was a no -issue still because we knew the tree had fallen into the river before. It turns out that the eagles actually are back. Not only have they come back but they are on the subject property now. Slides of the eagles nest present and past location were shown. Rings shown on the site plan indicate the 1/4 mile and % mile distance away. Planning Commission members took a few minutes to read the new exhibit letters. Fred Jarman said these eagles seem to be a pretty tolerant pair. There are on-going industrial uses occurring in this area already. All the riparian area on this property is buffered by the Oxbow. Will Spence with the CDOW could not be here tonight but he tendered a letter and you will see some of these themes in both of the letters and some of the conversation. Certainly the classic recommendation is no disturbance within the 1/4 mile buffer and limited within the % mile buffer area. You will recall earlier on that the applicant had committed to remove the batch plant out of the proposal. USFWS review. The US Fish & Wildlife and the Colorado Division of Wildlife suggest a 1/4 mile buffer be provided around all active bald eagle nests and a 1/2 mile buffer during nesting season. (November 15 -- July 15) (No activity or occupancy should occur within that radius at anytime). The safest route is still to follow the US Fish and Wildlife recommendations if the company decides to risk disturbing the eagles and moves forward with mining inside the 1/2 mile they will be responsible for a Take. According to CDOW the nest is in the Oxbow portion, this area is not to be mined and the new location will be more beneficial as the trees and vegetation will shield the eagles from the activity and traffic disturbances. Exhibit AA are the applicants response to the CDOW and US Fish & Wildlife comments and recommendations. Fred Jarman stated that the staff's revised recommendation is exactly the same as his previous recommendation with the one change and that is regarding the American Bald Eagle. Staff 4 recommends the Planning Commission accept the recommendations of the US Fish & Wildlife Service. Cheryl Chandler has a question about an item on page 7 of the staff report that said something about the retaining the rural character and it said this piece of ground is the epitome of rural character. She wanted to know who wrote that statement. Fred Jarman asked where she was reading from. Cheryl Chandler said Exhibit E on page 7. Fred Jarman said he's sure he wrote that. Ms. Chandler said this is more of a weed patch than the epitome of rural character. Fred Jarman said there is a serious weed problem on this property and Steve Anthony has discussed that in his comments of this application. Lauren Martindale asked are there fines associated with the Taking of a nest. Deborah Quinn said there are criminal and civil penalties and she stated what those are. Lauren Martindale said so then the only oversight or enforcement with the agreements that United will secure as far as no operations during nesting seasons really that only enforced if they die. There's no oversight that basically says to guarantee that they will not be mining during nesting season. Fred Jarman said you can make that recommendation. You could limit what the time frame is for mining so it falls outside of the nesting season. Creed Clayton with the US Fish & Wildlife Service will speak next. He is stationed in Silt and he typically works with oil and gas operations. It does make a difference to the nesting eagles. If it's a disturbance that shows up while they are nesting like a new disturbance while they are nesting versus an on-going disturbance and they choose to nest there despite. That makes sense. The financial penalties for violating the bald and golden eagle protection act his understanding is the fines can be larger. He thinks up to $100,000 per Take for eagles. Fred Jarman said there is a definition of harassment in his memo. Phil Vaughan said the first paragraph in Mr. Kruger's letter details that out. Deborah Quinn said that definition comes from the Federal Code of Regulations. Mr. Clayton said it boils down to basically you can't injure an eagle. You cannot injure, kill or cause them to reduce their productive output. Phil Vaughan said we take these comments from Mr. Clayton as referral agency comments. Phil Vaughan has a question for Mr. Clayton aboutthe two different dates in the memos related to nesting season. Phil referred to the US Fish & Wildlife Service letter where Mr. Kruger noted the dates of November 15 through July 15 as the nesting season and then Mr. Spence with the CDOW stated in his letter the dates of January 10 to July 10. Mr. Vaughan wants to ask the question as to which one is accurate or is this a matter of opinion or did he read the letter wrong. Mr. Clayton said that is the first time he has seen the January 10 date used. There are a number of dates to pin point the nesting season and the DOW's own recommended buffers has a slightly difference from most which are October 15 through July 5 31st and are in their written guidelines. The important thing is on the latter date is when the birds fled and the chicks are no longer dependent on that nest. Moved to the applicant for their presentation next. Greg Lewicki will speak first and he is the Project Engineer for the Scott Pit for United Company. Mr. Lewicki gave a summary of the 2006 application and what was included at that time. The new application has: •A reduced mining area from 63 to 21 acres •Avoids Oxbow mining area • Has an approved CLOMAR showing no detrimental changes to the floodway •It removes the permanent asphalt & concrete plants for visual and wildlife impacts (that was especially a concern for the City of Rifle) • We also addressed the new Gravel Regulations as well as the Text Amendment • We have increased wildlife mitigation over the original plan •We have strict reclamation timeframes •We have pit capture mitigation • We have an expected mine life reduction from 10 years to 5.7 2009 Mine Plan Map was shown next. 1/4 mile & % mile rings to the old nest were pointed out. The Mine Plan in respect to the new nest was shown next. The red ring shown is area within the 1/4 mile circle. The applicant is showing that they do slightly intersect mining area 1. You can see that we barely touch both mining areas inside the % mile ring. Mr. Clayton stated that he made the first map that the Commission saw and the nest location was based on his best guess. He did not GPS it he only estimated it from the road so he could be slightly off from the nest tree. Greg Lewicki said we could be a little of too. Visual Impacts were discussed next. The site is screened from the north due to the river and the 100 -foot buffer with the mature trees which will remain untouched especially in the Oxbow area. The Lafarge/Mamm Creek Pit is adjacent to the east, an unused CDOT parcel is to the west, to the south I-70 is adjacent and elevated and screening options are limited here. Only the west bound lanes will see the pit. Mitigation of visual impacts. These are commitments they have made in order to try and address concerns that were raised here at the County level over the past three years. •The amount of mine slopes allowed to be present that is not backfilled to 3:1 or more at any given time is a 1000 -feet. •The amount of backfilled slope that is not topsoil is limited to 400 -feet. *Top soiling is required on all surface areas down to 5 -feet below the expected water level. 6 •The seeding & mulching according to the approved plan will occur in all topsoil areas each spring or fall no matter how small the area is. •Within 6 months of finishing mining in any mining designated area (which really only means mining area 1) that area must be fully reclaimed including top soiling, seeding, mulching, tree planting, wetland preparation, and water filling of the lake. So basically for the life of the pit the maximum disturbance which is mining area 2 is 13.9 acres. • 100 -foot buffer of trees will be left along the Colorado River and that is in addition to the entire Oxbow area. • By strictly reclaiming previous mined areas and limiting the maximum disturbance to 13.9 acres the westbound cars on 1-70 will really only see that disturbance for about 8 seconds. •Added (20) 2 -inch caliper trees along each lake at the time of lake filling. In addition willow clumps and cottonwood saplings have been added to the plan. • The permanent asphalt and concrete plants have been removed from the plan. Applicant wants to reserve the right to have a "temporary" asphalt or concrete plant for a specific job. It would be on the site for one job and would be required to be removed. A slide of the existing site was shown next. A slide of what the site would look like after being reclaimed was shown. Applicant agrees that the DRMS permit will be amended (there is an existing DRMS permit) to reflect every single condition that's agreed to in the Garfield County Special Use Permit. Protection of the City of Rifle Water Intake. Have been working with the City of Rifle on this item. Wildlife impacts. New eagles nest location about1/4 mile from each of the mining areas. Will not go in the 1/4 mile ring when the eagles are there. Slide of 2010 Mine Plan and aerial image of nest were shown. Greg Lewicki thinks it's pretty obvious that these eagles are pretty tolerant of things already happening in the % mile and % mile radius zone. Mr. Lewicki gave their reasons to allow this plan as proposed: •Buffered by thick cottonwood grove. • Worked with CDOW. • United Company is committed to no permanent asphalt or concrete batch plant. *Two seasons only of mining in 1/4 mile radius when eagles are not present. • Pair of eagles doesn't seem to mind gravel mining activity. •Removal of Oxbow mining area allows project to last only 5.7 years. •Will avoid sensitive time for eagles during first of the year which will last until June. 7 • United will make its best effort to mine and process as much material as possible while the eagles are not present. • All processing will occur outside of the % mile radius from new eagles nest. •New nest will experience more noise from railroad. New commitments: ' Amend time period. United will not start any activity until June 15th and will start at far western area of mine 1. •Mining & processing will be for the most part about 25' below ground level. •Conduct as much as possible in the off season when the eagles are not present. •The commitment to no permanent asphalt or concrete batch plant stands. • Life of operation is 5.7 years. • Applicants met with Creed Clayton and they have three new major commitments to add. Applicant commits to hiring a wildlife expert (who is here tonight from West Water in Grand Junction) and this wildlife expert will do an observation program of the nest weeks in advance of the June 15th date to observe what is going on. Van Graham is a Wildlife Biologist with West Water Engineering. They are environmental consultants and he will be the expert Greg Lewicki referred to in the above commitment. • On June 15th Van Graham will be present at the site to see how eagles react to mining operation. We see this as a precautionary measure. • On-going observation of eagles to make sure they are not disturbed. * All of the Oxbow area and area outside of mining areas will make commitment that no one can walk in or disturb this area until after July 15th. Van Graham will make some comments next. He has monitored this eagle's nest for around 18 months now along with three other nests. The real nesting probably starts around this time of year and eggs will probably be laid mid to late February and hatch probably mid to late March and the chicks will usually fledge around third week in June. The period of time when they are about to lay eggs are their most sensitive time. All of these birds seem to be tolerant to these surroundings and activities around them. *Noxious weed management. Extensive Knapp weed and Tamarisk on the site which applicant will take care of but they would like to wait until July 15th to take care of weeds. •DBMS will not release bond if there are weeds in any part of the reclaimed areas. • Noise compliance. Did noise study and they easily meet the noise standards. •Glare created from lakes. Think no real problem due to geometry of this site. •Water discharge quality. The NPDES permit issued for any gravel pit discharge limits the amount of total suspended solids to 35-70 milligrams. • Will have a SWMP and Spill Containment Plan. 8 •All fuel tanks are located above 100 -year floodplain in the last phase of mining area 2. • According to the new text amendment of 2009 no Road Bond is required for this operation because it doesn't outlet to a county road. • Reclaimed slopes. Under the new text amendment the new regulations require for wetland areas is that 80% of the wetland slopes have to be less than 5:1 and 20% have to be less than 10:1. For dry land the minimum is 85% less than 5:1. But they added exceptions for good cause. Have revised plan to include 5:1 slopes and 10:1 slopes to the extent practical. Where they really base these exceptions is for the Airport. Greg Lewicki wanted to clarify from the Airport letter that they do say bird attractant ponds are not compatible within 10,000 feet of the runway. This site is within 3500 feet of the runway far inside the 10,000 feet distance. Applicant is committing to creating .8 acres of wetlands that don't exist out there now. They are not disturbing any wetlands in the plan. Thinks this falls into the exception they created in the text amendment. Active irrigation was discussed next. The applicants are committing to that supplemental irrigation if it's needed. If you over irrigate the slopes then you'll encourage vegetation that won't last when you stop the water. City of Rifle East Gateway Plan discussed next. The permanent plants have been removed from the plan. United Company still wants to reserve the right to have a temporary plant for a specific job. Enforcement. Applicant thinks they have taken some pretty good steps to try and restore some confidence in that reclamation. The time frames and the quality of reclamation. All commitments are going to be binding conditions of the Special Use Permit and the DRMS permit. Greg Lewicki showed a list of phone numbers of agencies that can be contacted if there is a problem, complaint, or concern on a site. Greg Lewicki wants everyone in the County to know that there are enforcement procedures in place. Another thing to think about here is the demand versus reserve. The main corridor for gravel development in this area is really from Rifle to Silt. Once you get below Rifle the Oil Shale starts to come into the gravel and it puts it out of spec for asphalt and concrete. The current permitted reserves will last approximately 8-10 years. Moved to questions for applicant next. Fred Jarman wants to make four points: 1) Issue of asphalt batch plant. What was testified to you all is the applicant wants to reserve the right for a temporary plant for a job. Fred Jarman wanted to point out a number of places that directly speak to that so you can consider this on how you are going to move on the project. Fred Jarman directed the Commission to go to Exhibit N the 4th paragraph in the City of Rifle letter. "The application fails to illustrate the 4-6 9 year condition of the property during the operation of the asphalt and concrete plants." He then referred to the last paragraph of this letter because it is very important to the City of Rifle. "In summary, the City of Rifle would prefer not to see another gravel pit along the Colorado River " "Should the County elect to approve this pit, the City strongly request that the applicant not be allowed to place a concrete batch plant or asphalt plant at this location because of the impacts to the City's principle gateway; the final phase of their operations demonstrates they can mine the material and transport it elsewhere for processing." A Targe part of their argument was that this impacts the economic benefits to the City of Rifle and how an industrial use with a batch plant at their doorstep was a negative impact to them. 2) Fred Jarman wants to refer to Exhibit P next. This is the applicant's letter back to staff and Commission and is in response to a lot of discussion that you all have already had. ##1 on their letter states, "No permanent asphalt plant or concrete plant will be located on this site. No portable plants of either type are allowed unless it is needed for a specific CDOT or FAA job beneficial to the community for a limited time frame. No job of this type has occurred This addresses in major part the concerns of the City of Rifle with the East Gateway Plan, the visual impact concerns of the County and also, potential risks to disturbance of the eagle nest east of the pit." Fred Jarman referred to Exhibit Q next, the letter from the CDOW, {this letter was written right around the time that the eagles nest fell into the river) the 5thparagraph which says, "The most important change to the plan is the removal of the concrete/asphalt plant from Mining Area 2. The plant would have been a constant source of noise, traffic, human activity and dust, all within the 1/2 mile buffer of the eagle nest and next to % mile buffer. The removal of the plant goes a long way toward making this a wildlife friendly project, particularly in the case of the eagle nest but also for other wildlife using the area." Fred Jarman asked the Commission to refer to Exhibit Y next which is the email dated January 26, 2010 from Will Spence with the Division of Wildlife. Paragraph 7 says "it seems that these eagles may tolerate activity inside the Y2 mile buffer. However, any major disturbances, such as an asphalt plant should be established outside theY2 mile buffer_" There is a great amount of tension placed on eliminating an asphalt plant from this project so that's why it continues to come up as a constant theme. Fred Jarman told the Planning Commission that if they choose to go the route that you want an asphalt plant he would ask you to ask the applicant to define temporary. You have to be careful using words that are tough to define, they are subjective. There were a lot of terms used that it doesn't do the County any good to adopt something that may be valuable but not understand what we are doing. 3) There was a comment that the applicant raised that talked about reserves and mining and various of types of concepts. Your roll is to make your judgment based on actual 10 Code language and you cannot consider and make your findings outside of what your boundaries are. The findings that you do make, make them on code language that you can specifically point to. 4) There is a little bit of a conundrum with Old Code/New Code here. When the application was originally submitted it fell under the Old Code. Since that time, the Old Code has gone away and you have adopted the New Code. The Gravel Regulations from the Old Code were adopted into the New Code exactly as they were in the Old Code. The applicant wanted to make changes to the adopted Gravel Regulations so they filed for a Text Amendment. That application was processed under the New Land Use Code regulations because the Old Code did not exist any longer. The new text amendment that the applicant would like to take advantage of certainly is New Code. We believe if you choose to move this forward that you can make a finding that the regulations of the New Code and you recommend that the Board approve the "Land Use Change Permit" and not the "Special Use Permit." Phil Vaughan would like to ask a procedural question first. He asked the other Planning Commission members if they understand what Mr. Jarman is recommending here and that is if the Planning Commission chooses to forward this to the BOCC with a recommendation that we incorporate this as a Land Use Change Permit under the Unified land Use Resolution in 2008, as amended and versus a Special Use Permit, that is what is being asked by staff. is that okay Ms. Quinn? Deborah Quinn responded that the problem is because the 1978 Code was amended, they do not meet the standards of that Code so the only standards they could meet are under the New Land Use Code. Phil Vaughan asked Mr. Lewicki if he has any problem with this being processed under the New Land Use Code. Greg Lewicki said he is okay with it and he understands and agrees this would be a Land Use Change Permit and not a Special Use Permit. Pete Sigman asked does it change anything. Phil Vaughan said it is the only way to move this application forward. Deborah Quinn said the public notifications were done as a Special Use Permit. Again, it's a change in terminology. The Code was amended but the process she thinks is still under that old Code provision but the standards would be the New Code so they wouldn't have to do anything all over again. Fred Jarman said the notice for the BOCC hearing will reflect the New Code and what standards they are applying to. Phil Vaughan said so procedurally it sounds like we are all in agreement Planning Commission, applicant and staff and we are good to go. John Kuersten has a background question. Within that'/ mile buffer he noticed it encompasses the adjacent property, the Schneider's with the Lafarge Plant. There is an asphalt plant sitting there currently. Is that apermanent plant? How was that permitted and how is that established with the County. Fred Jarman said he hasn't done any research so he can't tell you 11 what lies there. John Kuersten asked what the one on the adjacent property is. It was obviously recently installed. Fred Jarman said it may be fully illegal. Fred Jarman said he cannot answer your question so unless he does an investigation to figure out number one if it is permitted. Maybe it's a heads up for us to do a little investigation to see in fact if it is illegal. None of the comments made speak about temporary they only talk about asphalt plants. Fred Jarman said that DOW, the City of Rifle and the County are pretty clear on their feelings of batch plants. The applicant has a different perspective as to what they feel is appropriate there. Greg Lewicki said the plant on the Lafarge/Mamm Creek Pit site he believes is a temporary plant and is located within the 1/4 mile buffer range. They have approval to mine inside the mile ring extensively. The way it was written is that they have to get out of that area when the eagles come back. Greg Lewicki said we are asking for far more/strict control over that. We are committing to a much better plan than what exists with Lafarge with the old nest location. Cheryl Chandler told John Kuersten that she thinks with temporary structures it's kind of like a trailer house and a manufactured house that is put on a permanent foundation. A batch plant is usually concrete batch plant. John Kuersten said he knows the difference but how do we determine what's temporary. Cheryl Chandler said they are on wheels. John Kuersten asked but is there a time frame. Cheryl Chandler said as soon as the job is done. John Kuersten thinks technically they are all portable. Phil Vaughan asked are there any further questions for the applicant at this time. No additional questions were asked so we moved out to the public for comments next. No comments were given from the public so we came back to the Planning Commission for questions to referral agency and for staff. Cheryl Chandler said it looks like to her that the only conversation left in here is temporary or permanent hot plant/batch plant. (Condition #3) Phil Vaughan has a question for Mr. Jarman on recommended condition #4 and that is the Mining Plan/Phasing Plan. "If the operations are to extend beyond this time frame, the property owner shall be required to return to the BOCC to demonstrate that the mining operations comply with any new regulations adopted by Garfield County." He said he does have some concerns about that statement because he feels like once we set forth an application that the applicant is required to meet that set of rules but trying to foresee into the future six years and say the rules that are in place you have to prove up. He doesn't really feel comfortable with that particular wording. Fred Jarman said it's pretty straight ahead. He would guess that the same thing applies to the Federal Regulations as they change that are on- going. Fred Jarman is putting the question out there, if the Planning Commission and the BOCC 12 believes that we may learn something in 2 or 3 years which of course we can't perceive now about the way that we do business and the way you regulate or not certain activities is it important for you to have that authority in place then to say you know we should probably look at this. The flip side to this is if you are granting a land use right today based on a certain set of perimeters or certain set of regulations that is your one bite at the apple then you get that extra land use right in that stick of bundle of rights and then off you go. That's the other side of the argument. Cheryl Chandler brought up item D under staff findings and all of the references to "Special Use Permit" should be changed to "Land Use Change Permit". It was suggested to make that same change throughout the staff report where necessary. Phil Vaughan wanted to make sure all members are clear here. We have a staff recommendation here with recommended findings and recommended conditions of approval numbers 1-13 (I). (Exhibit W) What we have not addressed are the recommendations of the US Fish & Wildlife and from the DOW in regards to how we deal with the eagles. Phil Vaughan asked Fred Jarman if he a recommended condition for the eagles. Fred Jarman said yes he does. Regarding the eagles staff recommends that the Planning Commission accept the recommendations by the US Fish & Wildlife Service. That recommendation would be included as condition #14. Phil Vaughan asked if it would make sense to condense that letter down into a few sentences so everybody can understand what's being recommended. Fred Jarman asked our referral agent to respond to this. The letter from Rick Krueger with the USFWS is a recommendation. The Chairman would like to boil that letter down. Creed Clayton said he thinks the applicant has proposed some new concessions tonight that weren't addressed at all and he thinks those need to be incorporated into the project and addressed for what their recommendation would be. First, we need to see the new concessions in writing to but off on and then probably send a new letter to try and keep it concise. Cheryl Chandler asked if we did paragraph two from letter (Exhibit Z) it basically tells what they really suggest, the rest of the letter is just stuff and is explaining to us. Phil Vaughan brought up that the applicant is suggesting a different start-up date from what the US Fish & Wildlife suggests. Lauren Martindale thinks our decision here is are we taking this letter and basically modifying the date to be June 15th instead of July 15th or are we sticking with July 15th and adding some language that says pending wildlife biologist's approval on June 10th. Cheryl Chandler said that is exactly what she wants to say. Phil Vaughan accepted new Exhibit BB into the record which is the three additional hand written points added by the applicant. Greg Lewicki said the applicant is comfortable with 13 conditions 1-6 listed in Exhibit AA from USFWS and the three additional commitments listed in Exhibit BB by them all as conditions. Fred Jarman said he has a real issue with the paragraph below item ##6 on Exhibit AA. He would like to remove that paragraph because it is not an accurate representation of what transpired here tonight. Fred Jarman would like that retract from the record. There has never been a motion from staff of denial of this application. The applicant stated that in their letter that "We already know that Fred Jarman is changing his recommendation to denial based on the new nest and the USFWS letter recently sent." Fred Jarman said that's inaccurate. Greg Lewicki said he must have interpreted that wrong but that is what he thought was happening. Phil Vaughan said we already have Exhibits AA & BB accepted into the record. The language is what the language is. Can we all agree upon the fact that under the statements we already know that Fred Jarman is changing his recommendation to denial based on the new nest and the USFWS letter recently sent. Can we agree upon the fact that the applicant is now under the understanding that Mr. Jarman has not set forth the recommendation of denial. That that particular aspect of the letter is incorrect. Greg Lewicki said they can agree that is an inaccurate statement that was made by them in their letter. Both Fred Jarman and Deborah Quinn agreed that is the best you can do at this point because Exhibits AA & BB have already been accepted into the record. Creed Clayton would like to make some additional comments. In general he is comfortable with the additional commitments made by the applicant by the USFWS have riot signed off on these in any form so this is all very rough. The one sticking point that he might have is the June 15th start date. He likes the start date ofJuly 15th unless the eagles have fledged prior to that time as determined by a Professional Biologist. It would be nice if we could discuss this internally with his supervisor who hasn't laid eyes on this at all. In his opinion everything looks pretty good to him except for the start date gives him a little bit of heartburn. Phil Vaughan would like to throw out some suggested conditions that he wrote down. He tried to take the letters from the DOW and the USFWS and tried to get this down to about three conditions. Phil read his suggested conditions into the record: 1) No activity shall occur within % mile of any active eagles nest. Creed Clayton said that is a general recommendation. We often make site specific recommendations that differ from that general recommendation. 2) During nesting activity a % mile radius buffer shall be provided around active nests. 3) The applicant shall employ a qualified Wildlife Biologist to observe the eagles nest and to 14 verify compliance with these conditions via written report submitted to the Garfield County Planning Department. Greg Lewicki stated that basically we feel that the tolerance of the eagles to activity, plus the new commitment to start on June 15th in the far western corner of the permitted area, combined with the cottonwood gallery that exists, combined with the program to monitor the eagles and observe them, and the power of the professional to actually shut down the operation if he sees that the eagles are agitated, we think that's pretty good protection. The Biologist would be observing their activity way in advance of the June 15th date. On June 15th the Biologist will be present to observe their reaction to this activity. We stand by the commitments that we are making here. It is our understanding that we can mine in the % or %z mile area as long as the eagles aren't there in that small slivered area. Between 1/4 and % mile radius there is a ton of activity going on all year round. Our activity is completely shielded from a direct line of sight to the eagles from this cottonwood gallery. Given all those facts we believe the comments they have made are good. Fred Jarman said it seems to him that the real issue is trying to eliminate risk for a potential take. Wouldn't it behoove you as the operator to wait until that risk is pretty much eliminated and they have fledged. Your Biologist would be employed around this date (whatever date that is) to monitor the birds have fledged then you can go in, instead of the other way around. Isn't your risk of a take way much greater? Greg Lewicki said Van Graham thinks it is extremely unlikely these eagles will be disturbed. Van Graham has been watching these eagles for 1B months. Van Graham stated just from what he has seen from other operations down the river a little bit, similar activities have occurred in a lot closer distances and eagles haven't seemed to be bothered. Based on similar circumstances and industrial activity it hasn't disturbed the birds. Lauren Martindale wanted to get back to Phil Vaughan's suggested conditions because they didn't have anything to do with the date. They were completely based upon the Biologist recommendation. Could we go through these one by one and have applicant respond in order to move this forward. Phil Vaughan said he understands that maybe the condition is simply the understanding of the November 15th to July 15th dates that the USFWS has said. Understanding that a qualified Biologist can go out and review this and at that time make a determination whether it is right to move forward with construction starting at that time or not. That recognizes USFWS recommendations but also recognizes that a Biologist can go and review and if the birds have fled on June 10th, no issues or concerns. If the birds have not fledged on June 10th a qualified Biologist can only make a recommendation. Cheryl Chandler thinks that no one is going to spend the kind of money for move in move out 15 before you get the letter that says eagles are gone. Greg Lewicki said the Biologist not only has the power to not allow the operation on June 15th he also has the power to shut down the operation if he sees agitation. We have committed to the Biologist's recommendations and to abide by his recommendations. Fred Jarman suggests either instead of the private third party Biologist you rely back on the Federal Agency to do that or is it a compromise of the two. Phil Vaughan asked Creed Clayton, if that was set forth in a condition that says USFWS needs to give guidance on this would you actually issue a letter at a particular tirne, go out a do a site inspections for an operator and issue a letter of opinion. Creed Clayton said yes but what's the turnaround time. How much time do we have to produce that letter. We would have to have a week or two to do that. Pete Sigman asked why you would question Van Graham's integrity. He would be creating a report that would be based on his best knowledge of the eagle and what the situation is. He thinks you are creating another layer if the USFWS has to review his comments. Phil Vaughan stated we have noted in our Code who's qualified and who is not to submit reports to the BOCC and to the planning Commission so we have noted who are professionals and who are not. Ultimately though USFWS providing recommendations, consultants providing recommendations, ultimately it all comes down to the law. If there is a takings it all comes back on the applicant no matter who recommended what. Deborah Quinn this issue came up a couple of days ago and these people are trying to do their best to come up with a solution to this. There is time for this applicant, the USFWS and the DOW and came up with a more concrete plan by the time they go to the BOCC meeting. Greg Lewicki said the thing they can commit to is if Creed Clayton is comfortable with Van Graham doing the work we commit to Van doing the work, Secondly, we want Van Graham to work with the USFWS all throughout this whole process and if there is just some way to have this structurally worded so that the Wildlife Professional will work with USFWS during this whole process and the okay is given with the observation process to move ahead and if it moves ahead that the observations continue. If it looks like there is significant agitation then the project stops and we follow the recommendation of the Biologist who is working in conjunction with the USFWS, Creed Clayton said he didn't say that was unacceptable to therm, He said he has a little heartburn with it. He would still expect the nest to succeed and the fledglings to be fine. He is just saying that there is one level safer than that. Would prefer to wait due to the uncertainty. Phil Vaughan said we can note in our recommendation tonight that this issue will be discussed amongst that group prior to going to the BOCC. Need to come up with more concrete language for staff to present to the BOCC. 16 Fred Jarman said you could take the typed concessions that the applicant added and in addition you have the hand written pieces. This all sort of has the framework of a suggested plan to the BOCC. What you could do is take Exhibit BB in whole and submitted a Bald Eagle Management Plan subject to Exhibit BB. Cheryl Chandler suggests including Exhibit Z paragraph 2 as well. Applicant has concerns with certain conditions listed and Greg Lewicki will address those now: •Condition #5: "There should be no storage of fuel on site that is located within the 100 -year floodplain." The portable plants, the crushing and screening and wash plant will be in the bottom of the pit and that is within the 100 -year floodplain. They will have portable tanks that go with those plants. They have to and there is no way you can do it any other way. We have a plan in place to get those plants out of the floodplain area if it looks like the river is rising. What we would prefer to see in Condition #5 is that there shall be no permanent storage of fuel onsite within the 100 -year floodplain. •Condition #13(c): "The applicant shall use plant plugs (i.e. real plants) instead of broadcast seeding." That needs to be reworded because we don't have any broadcast seeding in the plan whatsoever. It's going to be a combination of full trees, tree saplings, which you could say is plugs, willow saplings which you could say is plugs and the dry land areas will be hydro -seeded or drill seeded. There is no broadcast seed. There is a plan in place. •Condition 147: "Due to the close proximity to 1-70, all crushing / screening shall occur in enclosed equipment." The crushers are enclosed but that equipment is never fully enclosed. The screening plant is open. Don't want to get us in trouble over that. it's a wet pit. If we could change it to enclosed crusher and that the other equipment is not fully enclosed. •Condition #4: "Mining Plan Phasing Plan." Greg Lewicki wanted to point out under this condition that after six years we have to come back. That six years (which was actually 5.7) the way that we arrived at that is we have software that calculates the exact volume that comes out of these pits and we related that to what the historical production was from the Chambers Pit which has been in operation for a long time and based on that we carne up with the number of 5.7 years. It's approximate. It's very hard to predict market conditions. It's difficult to pin down an exact time line. Would like some flexibility in that time frame. Fred Jarman said that condition was written for two reasons. One, open ended dates have no end. Secondly, that is what is being represented. Pete Sigman said he would be more comfortable with 8 years. Lauren Martindale said just to put it in perspective the two more years that they are asking for is a 30% increase over what you asked for in your application. That's a pretty big buffer. 17 •Condition 13(E): "The applicant shall meet with the County Vegetation Manager, prior to scheduling the hearing before the BOCC to agree on a viable program." What Greg Lewicki would like it to say is we will do that before the BOCC hearing but we would like to schedule that hearing for March 15th. Fred Jarman said the condition listed by staff above is the staff preference which you have seen quite a bit. The reason that is in there is for a hammer to the applicant to get something done and we are not scrambling a day before the hearing to try and make sense of information. Phil Vaughan would like to come back to condition #5. Phil Vaughan said he is thinking this possibly pertains to bulk storage or do you simply note that all fuel storage on-site shall comply with the requirements of the spill prevention control plan. John Kuersten added "other than fuel necessary that fits in the fuel tanks for OEM equipment on crusher screens, etc". Fred Jarman said what we are trying to avoid is you don't have a fuel farm down in the floodplain. The tanks that are attached to the pieces of equipment that is okay just not a tank farm. Fred Jarman said maybe bulk storage does get you all there. John Kuersten asked do we need to have the discussion related to temporary plant. John Kuersten said there is a difference there between a portable and a temporary plant. Need to hear from the applicant as to what their intent is. Pete Sigman said they call their plants portable and they are portable to come in for a specific job, for the duration of that job, and then they leave. Fred Jarman told the applicant that their application says very specifically they are for an FAA or CDOT project. Pete Sigman said that is what they are after. They are not talking about for retail sales at all. Phil Vaughan said we had a discussion during the work on the new regulations about needing to have temporary plants set in place for specific jobs. Phil Vaughan asked if temporary plant was not incorporated in the original plan how long would it take for an amendment to be file in order to get that added on. Fred Jarman said the tolerance level for an amendment to an approval is whether it's a significant or insignificant change. It's that time frame. The Director could not recommend that as an insubstantial change and that would have to go through a public process. Fred Jarman thinks the issue of temporary is really the nut that needs to be cracked. There is a lot of verbiage included that talks about the value of not having a plant from a wildlife protection impact to the visual impact to the City of Rifle. Greg Lewicki suggests condition could read "applicant will provide to the County a letter stating the particular job, our request to bring that plant on site, the expected time frame and the idea is to take that plant off-site once the job is finished." John Kuersten still thinks we need to define time perimeters. Otherwise what do we have to consider. Deborah Quinn said it seems to her that it's a condition that could eliminate the prohibition all together. It doesn't take into consideration the impacts to the wildlife. Fred Jarman said there are no criteria either for staff to consider. We wouldn't know what to do with a letter. Phil Vaughan said we are setting up a 18 process in a condition and the process should be the Code. if you are going to have a batch plant on-site that needs to be incorporated into the application and permitted and not as a side to what occurs on it. That way it's up front and everyone knows it's going to happen. The problem is that's not the way the application was submitted. The application was specifically submitted without a permanent concrete or asphalt batch plant. If the applicant would have wanted that permanently in there than that should have been incorporated into the application. Numerous referral agencies have said we don't want permanent concrete or asphalt batch plants on this site. Greg Lewicki said the applicant doesn't want a permanent asphalt or concrete plant. But if you limit it to an FAA job, a CDOT job or a significant County job there aren't that many of those and they don't last long periods of time. Phil Vaughan replied that he thinks what staff is saying is we are setting up a process within a condition without considering the Code. Ultimately, what you are talking about is an amendment to a Land Use Permit because we are talking about addressing all the impacts not just issuing letters that say you are going to work for two months, we are going to do this job, and we're gone. That doesn't address any of the impacts of that project. Phil Vaughan thinks that would be what Mr. Jarman would have to consider as a substantial change which means he has to run that through the public process. Pete Sigman said we talked about all the permits that we have to have for this site and they are all related to a piece of equipment that is already there which is a crusher and a wash plant. An asphalt plant is within that same category of equipment so why wouldn't you allow an asphalt plant. Phil Vaughan said his job is to evaluate what you all have submitted against the County Code and if you all wanted this for temporary then in his mind that should have been included as part of your application as a permanent use because everything that set in the Code full evaluation of that would have been done. The problem is now we have DOW letters, we have City of Rifle concerns, we have multiple referral agencies concerns of having the plants there at all and here we are at the 11 1/2 hour sitting here having a conversation about temporary concrete and asphalt batch plants. That's where his concern is. Pete Sigman said they removed those from their original plan but he said they also stated at that time that they would like to have the ability to have a temporary or portable plant for any FAA or CDOT job that came up. This isn't that we just brought it up tonight. This was talked about basically when we agreed to that compromise. Greg Lewicki read a sentence from Will Spence's letter (CROW letter dated June 5th) that said "the company has stated that they intend to put a temporary plant in the pit in the event they are awarded a contract to do a CDOT or County work on an interstate or highways. They've stated that the chance of any job coming available in the next few years is slim. In the event 19 that a contract is awarded and a plant is installed a time stipulation should be applied limiting the plant production to the months that the eagles are not present. Another option would be to install the plant outside the % mile perimeter." Greg Lewicki said so it was discussed earlier. Phil Vaughan said but your newest letter that was incorporated into this exhibit indicates clearly that you have taken out the permanent concrete and asphalt batch plant. John Kuersten said what he is struggling with is how to you define and how do you enforce portable or temporary. Fred Jarman said the change in the perspective, the applicants letter that came in on May 28th it talked about just the FAA jobs and so on and then moving it out. The following letter is the DOW review (Will Spence letter) which is in June and it's in that letter specifically that says "the most important change to the plan is the removal of the concrete / asphalt plant from mining area 2. This would have been a constant source of noise, activity and dust all within the 1/2 mile buffer. The removal of that plant goes a long way in making this a wildlife friendly project." Whether it's portable, whether it has wheels, whether it is fixed it has the same impacts. Cheryl Chandler said Will Spence also said you could put a time stipulation in. Phil Vaughan said his recommendation is if you want to note that as an item of discussion that the applicant will have with staff and other referral agencies and they can make their pitch to the BOCC. John Kuersten said if we look at just a concrete / asphalt batch plant regardless if it is temporary or permanent and it operates from July 15th to November 15th is something we could entertain and then let the BOCC decide whether they like it or not. Cheryl Chandler thinks we should take Will Spence's exact recommendation and stipulate the timing. Lauren Martindale said there is a difference between the plants being there versus the plant being operational. So there is the visual impact that Rifle is concerned with also. John Kuersten said there is one 100 yards away already. Cheryl Chandler said there are three of them actually. Deborah Quinn mentioned that before you make your motion Mr. Jarman is going to give you some specific findings that will be needed to be made in connection with any recommendation. Fred Jarman referred to page 2 in Exhibit W item #1. This is the issue relates to visual impacts. Are the impacts enough? Item #3 regarding the wetland slopes. The applicant is asking for a variance from what the code requires. The language for provisions is including in staff report on the top of page 3. Will need to provide a separate finding and the reason for waiving or modifying the wetland slopes and the modifications are in conformance. The next one is #4 on page 5. This is the irrigation issue. Need to make a finding there that the irrigation plan proposed. On page 8 of the staff report item #5. This is directly related to your Comprehensive Plan as it currently is adopted so you have to make a finding that ensures that this development 20 and overall land use policies that occurring in the County that will affect a municipality are compatible with the existing zoning and future land use objectives of the appropriate municipality. So that's the Gateway Plan for the City of Rifle. Those are the specific findings. No further comments or questions were asked so the public portion of hearing is closed. Lauren Martindale made a motion to approve the Scott Gravel Pit Special Use Permit for processing, storage and material handling of natural resources and a Special Use Permit for development in the floodplain contingent upon the Commission's findings are in accord with staff recommended findings numbers 1-5 as well as contingencies listed in the staff report staring with conditions 1-3 adopting as is; condition #4 mining plan phasing amending to read with the term of 8 years; adopting condition #5 to read "no bulk storage of fuel on site; condition #6 adopting as is; condition #7 delete the word screening; condition #8-12 adopt as written; condition #13 C delete the words broadcast seeding; and to adopt a condition #14 the conditions submitted by the applicant as Exhibit BB and add paragraph 2 from Exhibit Z. Cheryl Chandler seconded the motion made by Lauren Martindale. Phil Vaughan restated the motion made by Ms. Martindale. Phil Vaughan brought up that this is a Land Use Permit Change so anywhere we said Special Use Permit. So we need to verify that. And the findings are actually #1, #3, #4, & #5 and moving on into the staff recommendations and findings. Any reference to SUP is changed to Land Use Change Permit and the only amendments that you had made are on condition #4, #5, #7, #13C and new condition #14 that incorporates Exhibit BB and paragraph 2 from Exhibit Z (Bald Eagle Management Plan) Phil Vaughan asked does that represent your motion and the seconds. Both ladies said yes. John Kuersten asked if you would accept as a friendly amendment to condition #3 that we allow the concrete and asphalt batch plants with the same operating dates established which he believes are July 15th to November 15th . Lauren Martindale does not accept that friendly amendment. John Kuersten would like to make a motion to amend the original motion to allow the concrete and asphalt batch plants operatingiuly 15th through November 15th. Cheryl Chandler seconded that motion. Lauren Martindale said she was hoping that we could get to some wording that basically allow the DOW and staff to come up with a recommendation without us coming up with the operating time constraints. John Kuersten said his intent is to allow this to go to the next step to the BOCC and allow these discussions to happen. A verbal vote was taken on the motion for amendment and motion passed 3(Y) to 1(N). Amendment is approved for condition #3. Now we are back to the base motion. No further 21 discussion on that base motion or the amendment. A vote was taken and motion passed unanimously. No other business to discuss tonight so meeting is adjourned. 22 4 Exhibits for Public Hearing: 01/27/2010 Planning Commission Exhibit A Proof of Publication B Proof of Mailing C Zoning Resolution of 1978, as amended D Special Use Permit Application E Staff Memorandum dated 6/24/09 F Garfield County Comprehensive Plan of 2000 G Letter from the Garfield County Airport Manager dated 4/17/09 H Letter from the Colorado Division of Wildlife dated 6/18/08' I Memorandum from the County Vegetation Management Director 5/1/09 J Email from the CDOT dated 4113/09 K The City of Rifle's East Gateway Plan (by reference) L Email from the Rifle Fire Protection District dated 4/8109 M Letter from Leavenworth & Karp dated 2/26/09 N Letter from the City of Rifle dated 4/24/09 0 Letter from the Colorado Geologic Survey dated 5/4/09 P Revisions to Application by Applicant dated 5/28/09 Q Letter from the DOW dated 6/5/9 R Wildlife Report from WestWater E gineering dated 5, 2009 New Exhibits since last PC meeting S Revised Letter from Applicant addressing New Standards dated 12/28/2009 T Revised Reclamation Plan (Map F-1) U Revised Site Plan (Map C-2) - V Resolution 2009-88 revising new standards for mining W Revised Staff Memo dated 01/27/10 Y L- �-i / L), --, -v/i- i /) ,.17,, taS ✓7 /~� c' -/z -V ,.�� �. jv).- / r// 2-1-/ 4,5 & /0.k _ '5rw5 t,4 '4/ TIME: 6:30 p.m. PLAN lNG COMMISSION MEETING AGENDA PLACE: GARFIELD CO N MEETING O 1 M DATE: JANUAR 2010 ADMINSTRATION BUILDING, 108 8T" STREET, IN THE BOCC 1) Call Meeting to Order & Roll CaII 2) Continued Public Hearing from June 24, September 23, and October 28, 2009. The Applicant totally re -noticed application for tonight's hearing date. Request is for a Special Use Permit to allow for Processing, Storage and Material Handling of Natural Resources and a Special Use Permit for Development in the Floodplain. The application for a Gravel Pit is for property located 1/2 mile east of Rifle between the Colorado River and 1-70. Applicant: River's Edge, LLC (Please bring application materials that were given to you previously to this meeting.) 3) Other business 4) Adjournment