BOCC to consider Levin land use change on Nov. 22
By Tamie Meck
Published Thursday, November 16, 2017 8:18 am
The land use change application being considered at next Monday's meeting of the Delta County Board of County Commissioners has resulted in dozens of public comments, numerous meetings, a petition signed by more than 400 individuals, and some confusion.
The application, submitted by Mark Levin with Paonia Holdings, LLC, requests a land use change to light industrial/commercial under Delta County's Specific Development Regulations (SDR) on land located just north of Paonia on Highway 133.
In 1977, that land was covered in orchards and a handful of houses. "According to a 1977 story in the North Fork Times, then owned by Ed and Betsy Marston, a vice president with the Colorado Westmoreland mining company proposed a railroad spur and coal loadout site on the property in response to the community's "expressed opposition to trucking" of coal.
According to the article, a licensed real estate broker purchased several pieces of farmland, either saying nothing to potential sellers about the mine's plans, or stating that he wanted the land for farming or a summer home. While landowners eventually sold, the secrecy created distrust among community members.
That distrust continues today. During the county review process required under the SDR, numerous public comments ask that Westmoreland's successor, Bowie Resources, LLC, to keep its commitment to return the land to its original condition.
But there are no commitments. There is the application for land use change, and there is a reclamation permit held by the Colorado Division of Reclamation and Mining Safety (DRMS).
"Those are two different processes," said county administrator Robbie LeValley. The BoCC is considering only the uses proposed in the application, among them a repair shop, equipment maintenance and repair services, equipment rental and sales, parts sales, equipment manufacturing, repair and manufacturing of firearms and ammunition, fabrication services, engineering and consulting services, storage of equipment and supplies, and agricultural uses.
As it stands now, the DRMS requires the site to be reclaimed, said LeValley.
When Westmoreland purchased the land, the county had no zoning, and still doesn't. Until the late 1990s it had no land use planning regulations in place. When the loadout site was built, "The county did not review and act on the application for Westmoreland or Bowie," county contract planner Kelly Yeager told the DCI.
Had development regulations or zoning laws existed in 1977, the process would involve an application for land use change or re-zoning from agricultural to industrial, said Yeager. That would require a site plan and demonstration that all zoning requirements are being met.
There would still be a process, said LeValley, "but it just wouldn't be as public."
At an Oct. 25 public meeting for the Delta County Planning Commission to review the application, planners voted, 6-1, to recommend denial by the BOCC. Planner Steve Schrock, who cast the no vote, questioned whether the application is for a change in use from agricultural to commercial/light industrial, or from industrial to industrial.
A construction company sits just across Highway 133 from the site. Located on private land, the site never underwent a land use change process under the SDR, yet continues to operate as an commercial/industrial site. When asked why it's allowed to operate without going through the application process, Yeager told planners that it's likely it existed prior to the SDR.
While reclamation is not among them, the county lists 22 conditions of approval. They mainly address safety, comply with state water quality laws and noise regulations, and placement visual screening. Because the site is located along the West Elk Scenic Byway, any "mitigation measures put forward by the County shall follow the recommendations" of the byway Corridor Management Plan.
The applicant must also submit new applications to the county for any future expansion of operations, construction or material changes not included in the application.
Planning commission chair Bob Stechert said he understands Bowie has used the facility for industrial uses. However, said Stechert, "It had an obligation to return that property to rangeland and agriculture use at the end of that use." In light of that obligation, Stechert asked Yeager if planners are considering a change from rangeland/undeveloped cropland to light industrial.
Yes, replied Yeager.
"The county's process is designed to review a specific use or uses, not a category of uses," Yeager told the DCI. "Further, the county's process considers only the proposed use and its compliance with the Specific Development Regulations. The review (by the county) is independent of the current or previous use of the property."
Public comments called the process "flawed." Betsy Marsten recalled in 1977 when everyone finally figured out that farms were being bought up for coal mining uses under the guise of farming. People wanted assurance that the land would be returned to agriculture, "And they put up a fight with Westmoreland. That's one reason there is a good reclamation plan."
Schrock said he doesn't understand how planners can operate under Delta County laws "...and say in effect that we are not here to consider issues related to DRMS function and permit, other than to do the county land use portion of this; and then say to what we're changing is that anticipated use and reclamation under that permit. It just doesn't make sense to me."
"That's what we're here to do," said Yeager.