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Planners consider land use change at Oct. 25 meeting in Paonia

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Photo by Tamie Meck Upper North Fork Area Planning Committee member Jen Sanborn, left, and Delta County planner Kelly Yeager look out from the former Bowie coal load out site north of Paonia last spring during a public tour of the site. Area planners will

After several postponements, a controversial application for a land use change at the former Bowie Resources, LLC, coal load-out site north of Paonia will come before the Delta County Planning Commission and Upper North Fork Area Planning Committee for review. The meeting is scheduled to begin at 6 p.m. Wednesday, Oct. 25, at the Energy Tech Building, 218 Fourth Street in Paonia.

Numerous parties have come out in opposition to the proposal. To give an idea of the scope of the application and comments received, the planning meeting packet is 195 pages long.

Applicant Mark Levin, with Dumont, Colorado-based Paonia Holdings, Inc., plans to purchase the property. Levin applied last spring for the land use change under the county's Specific Development Regulations. He requests a change to commercial and light industrial and agricultural uses on parcels located north of Paonia off of Highway 133. The land is currently owned by Bowie Resources, LLC. Until 2008 an industrial coal load-out site with coal mining-related support activities operated at the site beginning in the late 1970s.

A partial list of proposed uses includes heavy equipment repair, storage and sales of equipment; fabrication and machining and welding services; engineering and construction consultant services; repair and manufacturing of firearms and ammunition; and agricultural.

An "ancillary" 40-acre parcel located at 16180 Stevens Gulch Road is included in the application. Proposed uses include electrical transmission and distribution, communications lines, water conveyance, and possible future residential or storage yard space development.

The application was originally scheduled for review by planners and a final decision by the Delta County Board of County Commissioners last June. A presentation by Levin and a tour of the sites were held and meetings were moved out several times to allow all interested parties to respond to the proposal. In response to public concerns, Levin has made "significant changes in the scope of the application."

Among respondents are the roughly 90 property owners who are legally required to be notified of the proposal by the county due to their proximity to the sites.

Reclamation of the loadout site is permitted under the Colorado Division of Reclamation, Mining and Safety (CDRMS). Neighboring property owners are concerned that Bowie Resources is attempting to avoid reclamation and associated costs and obligations to return the land to its pre-industrial state under its existing CDRMS permit.

Levin disagrees. "That's a distortion, in my mind," Levin told the DCI in July. In an email, Levin said most of the reclamation work is complete and the majority of costs have been incurred. Remaining site reclamation work includes removal of a railroad bridge built over the North Fork River to connect the site to Black Bridge Road. Removal of the bridge is addressed in the revised application.

The CDRMS will not approve a change to the reclamation permit unless the county approves the land use change. According to the CDRMS, if approved they are required to approve permit changes. The load out area would still fall under mining division jurisdiction until Bowie Resources is released from its bond, and bond monies would not be released until post-mining land use changes are achieved.

In addition, according to a revised application and responses by the applicant to areas of concern published Oct. 10 and 18 in the DCI, "The issue (of avoidance of reclamation obligations) cannot legally be considered" as part of the application, and "must be considered only on the basis of the Delta County Regulation for Specific Developments."

When asked in July if he plans to purchase the land if the application is denied, Levin replied, "Absolutely no question about that... I can't think of a situation where that won't happen." The application process is ongoing, "and something will happen regardless."

Among the responders, the North Fork Farmers Ditch Association and North Fork Lateral Ditch Company urge denial of the proposal. Farmers Ditch decrees date back to 1890. Roughly 600 feet of the Farmers Ditch runs through a segment of the property via a 60-inch pipe. In the 1970s, Colorado Westmoreland, the original purchaser of the land, changed the course of the open ditch and replaced it with 60-inch steel culvert. It was then covered with 20-30 feet of material.

Bowie's reclamation plan requires demolition of the culvert and restoration of the land to pre-mining contours and uses. However, "by transferring the formerly mined land to a new owner who used it for post-mining uses other than farming," Bowie could be released from its performance bond and obligations.

Hotchkiss attorney Steven K. Harper is representing the ditch companies. In a letter to the county planning department Harper states that release from the performance bond could leave ditch members with no protections. The 40-year-old pipe will soon need to be replaced, according to Harper, and the companies don't have the capital to fix it.

Approval "...could lead to removal of existing reclamation protections designed to restore the portion the ditch modified... potentially leading to financial burdens the Ditch Companies cannot afford." The only way the ditch companies can be assured that the reclamation plan and bond are honored and the ditch is returned to its pre-mining state is for the county to deny the application.

The applicant responds in its notice in the DCI that the pipe was inspected and is in "generally good condition," and that the agreement "is not tied to any reclamation obligations and has no termination provisions."

The Board of County Commissioners will consider the application at the regularly scheduled Nov. 20 meeting.

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