Commission recommends denial of land use change
By Tamie Meck
Published Wednesday, November 1, 2017 9:51 am
Following a lengthy meeting on Oct. 25 on a proposed land use change under Delta County Specific Development Regulations, members of the Delta County Planning Commission (DCPC) and Upper North Fork Area Planning Committee (UNFAPC) voted 6-1 to recommend denial by the Board of County Commissioners. The application is to be considered by the county commissioners on Monday, Nov. 20.
Between 120-140 citizens attended the roughly five-and-a-half-hour-long meeting, during which area planners reviewed the application by Paonia Holdings, LLC, for a land use change of the former Bowie coal mining loadout site about a mile north of Paonia from agricultural to light industrial/commercial. About 35 individuals, some representing citizens' groups and local organizations, also recommended denial of the application. Comments were often heated and made personal attacks against applicant Mark Levin.
Dealing with what several called a very complex application process, concerns expressed by citizens and planners included incompatibility with surrounding land uses; impacts on property taxes; the definition of "Other uses" as expressed in the application; Delta County's obligations to the West Elk Scenic Byway, which runs past the site; compatibility with existing land uses; potential impacts to new and existing businesses; noise; and impacts of industrial and commercial uses on the area's air and water quality.
Following presentations by county planning staff, the applicant, and roughly two hours of public comment, planners urged the BoCC to deny the application. Made by UNFAPC Paonia area representative Jen Sanborn, the motion recommended denial "...because the extent, scale and scope of the proposed development fails to comply with Article 6, Section 2A of the Specific Development Regulations, which requires specific developments to be compatible with adjacent land uses; and Article 6, Section 2-P, the section on ... scenic views and byway."
DCPC member Steve Schrock voted against the motion, stating that while the application requests a land use change from agricultural to commercial-light industrial, "It's really a change from one industrial use, mining, to another industrial use."
In voting, Schrock said he believes the motion "is in violation of the Delta County Master Plan, specifically, the section of private property rights." Schrock called the issue of land use as it relates to the application "confusing." Because it has operated as an industrial site for 40 years, "The existing use here is the industrial use," said Schrock. That means the reclamation commitment is between the State of Colorado and Bowie. "What we're looking at is not that commitment. We're looking at a proposal for re-use of this property as an industrial site."
Quoting the master plan "...compatibility of a new development with the existing land uses should be given priority consideration... But in cases of incompatibility between an existing and a proposed land use, the property right of the existing use should be given priority," said Schrock.
Sanborn was the only member of the UNFAPC to participate in the review. Steve Wolcott and Bill Bear also sit on the UNFAPC. Bear is an employee with Bowie Resources and did not participate in the review process. Wolcott was asked to reuse himself. He explained that his attendance at a Colorado Division of Mining Reclamation and Safety meeting in June, which he said he attended in order to learn about the reclamation process and how it applies to the application, raised questions about "improper contact... I thought I was just educating myself," said Wolcott.
Levin has more than 25 years of experience in engineering, consulting and environmental mining reclamation services and policy-making and manages similar operations in Utah and Colorado. He said he plans to store and repair used mining equipment at the site and hopes to provide jobs to local mine employees who lost their jobs through mine closures. Levin said that when North Fork area mines began closing, he approached Oxbow about purchasing buildings, but found they weren't available. He then approached Bowie.
In a 45-minute PowerPoint presentation, Levin said that based on public comment following a presentation and public site visit held last spring, he made numerous concessions and changes to the application, including returning additional parcels to agricultural use and removal of the railroad bridge over the North Fork River.
His revised application also addresses water quality, visual impacts and other issues based on public comments. In response to comments that a "junk yard" will be located on the site, "Nothing we have is junk," said Levin. "I'm not sure where that came from."
Stevens Gulch residents expressed concerns over possible development of the 40-acre "ancillary" property included in the application, and a existing high-voltage power line. Because the land is not contiguous with the Highway 133 parcels and is connected only by the transmission line, some, including DCPC member Kim Shay, suggested the parcel be considered by the BoCC under a separate application.
Bowie's obligation to reclaim the land under its permit with the Colorado Division of Mining Reclamation and Safety received numerous comments. Speakers referred to reclamation as "promised agreements" with neighboring landowners. Numerous speakers urged planners to recommend that Bowie complete all reclamation projects before the application is considered.
"Bowie's obligations to reclamation have nothing to do with this process," said Levin during his presentation.
Numerous citizens asked that the Farmers Ditch be returned to its original state. Under a 1977 agreement between the North Fork Farmers Ditch Association. Bowie predecessor Colorado Westmoreland, Inc., placed a 627-foot segment of the ditch in a 60-inch culvert and buried it under an estimated 20-30 feet of material.
Attorney Steve Harper represents the Farmers Ditch and North Fork Lateral Ditch companies, which he said urge denial of the application. The ditch companies submitted comments, but have not been contacted by the applicant or Bowie, said Harper. Ditch companies learned that Levin has requested to leave the ditch buried in the 195-page meeting packet they received two weeks earlier.
According to the reclamation plan, said Harper, the culvert should be removed and the ditch reconstructed once the property ceases to be used for mining purposes. The 40-year-old culvert will need to be replaced, said Harper. "The ditch companies are comfortable with this reclamation plan because there is no way they can afford to pay for the reconstruction of the ditch and removal of the culvert."
If the application is approved, Levin has requested that the ditch remain buried and has agreed to take over responsibility for its maintenance, which he believes is required by state law.
When asked by planning commissioner Angela Mackey if Bowie is obligated to the public to reclaim the land, "That is a state requirement, that is not an obligation" stemming from an agreement with the community, explained John Justus, legal council for Bowie Resources, LLC.
In clarifying permit requirements, "If the Levin land use application is approved by the BoCC, Bowie remains subject to the reclamation obligations set forth in its mining and reclamation permit issued by the Colorado Mined Land Reclamation Board (MLRB) and administered by the Colorado Division of Mining, Reclamation and safety," Justus told the DCI. Under statute and applicable regulations, Bowie can request changes to the permit that would accommodate Levin's proposed land uses, if approved by the BoCC. That process would entail review by the DRMS, and, if there are objections, would be reviewed by MLRB, which has the final say at the agency level.
"Bowie can't walk away and does not intend to walk away from its statutory obligations to complete reclamation on the property," Justus told the DCI. As the current owner of the property, and as the permittee under the DRMS permit, it may request modification of the post-mining land uses considered by the permit. DRMS will require that Bowie demonstrate that the post-mining land use is not in violation of local land use controls, and that its reclamation plan for the property continues to satisfy the standards imposed by statute and MLRB's regulations.
The application to the DRMS is required through a public notice process that allows for objections to be filed, and a mandatory public hearing to the MLRB on those objections, said Justus. That gives members of the community with legitimate concerns or objections regarding the proposed modification to Bowie's reclamation obligations under the permit an opportunity to place those concerns before the appropriate authority.
The public can still submit comments specific to the application to the Delta County Planning Department.
Delta County Commissioners will consider the application at the Monday, Nov. 20 BoCC meeting.