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Wellington Board of Trustees 8/23/23 by Nanci Wendland

Meeting Summary:

This special meeting was to discuss and vote on a resident’s appeal to the June 5, 2023, Planning Commission site plan approval for an asphalt plant in the town of Wellington, owned and operated by Connell Resources Inc. See the Packet for more details on each presentation and bullet points.

Meeting Highlights:

Discuss and vote on resident appeal of June 5, 2023 approval of Asphalt Plant site plan; Final vote to reverse the June 5, 2023 approval - 4 Yes, 3 No. The appeal won.

Meeting agenda and packet

Meeting Notes:

According to the Wellington town Attorney, Daniel Sapienza, the board has three (3) options of approval this evening:

  1. Uphold the decision. If the Board upholds the decision of the Planning Commission, the Planning Commission’s determination stands unchanged.

  2. Modify the decision. The Board of Trustees may modify the decision of the Planning Commission to add additional conditions or requirements that would be within the authority of the Planning Commission on hearing the site plan application.

  3. Reverse the decision. The Board of Trustees may reverse the decision of the Planning Commission if they believe it was in error.

The board must determine which of these outcomes will prevail.

An Appeal was filed on June 9, 2023, by Appellants Ben and Ayla Leistikow, residents of the Town of Wellington. Below is the basis for appeal (pg 12-15 of Packet) with a presentation by Jeffrey Cullers, Attorney, with Herms & Cullers, LLC:

  1. This Asphalt plant will be curating and producing toxic chemicals per code section 4.03.21 B. The code states that any Industrial and Manufacturing heavy industrial producing and curating toxic chemicals shall be located at least 2,640’ from any residential district, school, religious or medical facility.

  2. Heavy Industrial and Manufacturing per code 4.03.21 shall be located at least 1,000’ setback from any residential district or use. On October 27, 2022, the Applicant, Connell Resources, received a setback variance of only 800 feet by the Wellington Board of Adjustments.

  3. The truck washing stations, welding garage, and truck parking areas are subject to at least 100’ setback from all property lines. This was not met.

  4. The Northeast region of the site is also designated as Heavy Industrial use and shall comply with the 800’ setback approved by the Board of Adjustments. The western boundary of this region is actually 665’ from the west property line.

  5. Air Dispersion: The code addresses emissions of dust, fumes, odors, smoke, vapor, and noise shall be confined to the site and in accordance with all state pollution laws. Connell Resources showed that emissions will not be confined to the site.

  6. Site and building design: Dimensioned elevation drawings or renderings shall be submitted with all site plan applications to illustrate conformance with codes. Applicants, Connell Resources, did not submit elevation drawings with their application.

For all the reasons above, the Appellants, Ben and Ayla Leistikow, believe the Wellington Planning Commission erred in approving the Connell Resources site plan for an asphalt plant in the town of Wellington.

Connell Resources Inc., owners of the property and applicant for site plan approval, was represented by Carolynne White, Attorney with Brownstein Hyatt Farber Schreck LLC, who gave a rebuttal presentation with the following defense:

  1. Item A: The setback of 2,640 does not apply because the proposed asphalt mixing plant will not produce or curate toxic chemicals. This is supported by a multitude of credible evidence provided by the Applicant, and the record is devoid of any evidence to the contrary.

  2. 1) emissions from the hot-mix asphalt plant will present de minimus risks to human health, and (2) the highest incremental modeled concentrations will be negligible compared to existing background levels from other sources already present in the Town’s existing air.

  3. Item B: all the Project Accessory Uses are either permitted as Accessory Uses under the Code or were approved administratively during Staff’s review of the Project. Notably, the site plan no longer proposes a truck washing station anywhere on the site. The truck washing station was a use eliminated from the site plan in response to the comments from the Town engineering department. Nevertheless, the Applicant can meet the 250-setback by moving the Accessory Uses at least 250 feet from the property line boundary adjacent to the residential district. Pursuant to section 2.12.4 of the Code, the Applicant may revise the site plan for minor adjustments throughout the site plan approval process, which includes “[m]inor variations in the location of structures, improvements or open space areas[.]” The Application therefore proposes the 250-foot setback as a condition of approval.

  4. Item C: The lean-to storage structure was proposed in its original location to help with the screening and buffering of the more intensive use, the asphalt mixing plant, on the other side of the Property. The Applicant worked with Staff on this point, and it was decided that the lean-to storage structure would provide additional screening. However, by slightly adjusting the location of the lean-to storage structure to at least 100 feet from the property line, the Applicant can meet this setback.

  5. Item D: Contrary to the Appellants’ claims, the Heavy Industrial use (the asphalt mixing plant) is located more than 800 feet from the property zoned residential. The aggregate loading and storage bins can be moved on the site plan to ensure these temporary and moveable uses comply with the Variance.

  6. Item E: The Appellant’s misinterpreted section 15-3-40(a)(3) of the Code and assert a much too restrictive reading of its requirements. The intent of section 15-3-40(a)(3) that “[d]ust, fumes, odors, smoke, vapor and noise” be “confined to the site” is not a requirement that no particle or dust, odor, smoke, vapor, or noise may ever leave the site. That is a physical impossibility.

  7. asphalt mix plants are not significant generators of dust, fumes, odors, and smoke, and any generated by the asphalt mixing plant will be de minimus, compliant with local, state, and federal air pollution laws, and 15-3-40(a)(3) of the Code. The Appellants misinterpret these findings set forth in the Report. The Report concludes that dust, fumes, odors, smoke, and vapor emitted by the asphalt plant are so nominal that there is no real impact – at least one that is measurable.

  8. Item F: The Applicant submitted with the Application eleven pages of dimensioned elevation drawings and renderings of the proposed office building, in addition to a detailed narrative and depictions of proposed architecture and design components. Given that such renderings are reflective of the design of all other proposed buildings on the Property, and that Staff directed the Applicant to defer submission of final renderings until after site plan approval, such submissions suffice to meet the requirements under section 15-5-90 of the Code.

After the presentations, the Board of Trustees then discussed and deliberated each point of the appeal, with each member giving their assessment of whether each item was debatable and could be changed; or was the approval decision in err by the Planning Commission and should be reversed. The minutes will provide more detail. Below is a list of concerns and comments from the board members.

Item A Toxins & Setbacks

  1. Toxins are created by asphalt operations. Connell Resources and other health and safety organizations provided a list of potential toxins. As a result, the setback should be 2,640’ according to code instead of 800’ approved by the Board of Adjustments and the Planning Commission.

  2. Connell Resources claims the effects are de minimus even though the state E.P.A. will monitor and require four (4) air pollutant permits. Trustee Gaitor mentioned talking to a Larimer County official who admitted asphalt plants are not heavily studied at this time.

Item B - Offices and storage buildings

  1. A minor issue that Connell Resources is willing to adjust the setbacks of accessory and ancillary buildings to accommodate a 250’ setback on the property site.

Item C – Garage Setbacks

  1. All board members agreed this was a similar issue to Item B and Connell Resources is willing to move the garage building to accommodate a 100’ setback on the property site.

Item D – Loading & Storage Setback

  1. Trustees confirmed how setbacks are measured and from what point on the property. Most agreed this was a debatable item and Connell Resources would have to comply with the 800’ setback and move building locations if needed.

Item E – Emissions & Interpreting the Land Use Code

  1. The Trustees and Appellants are not disputing this code.

Item F – Elevation Concerns

  1. Several Trustees believed this was a debatable item and Connell Resources was compliant with the application process as directed by the Planning Commission Director.

  2. Several other Trustees believed this was an error by the Planning Commission to approve a site plan application without elevations and dimensions of buildings. Per the application process, site plans shall include dimensions and elevations, so this application was incomplete.

  3. Connell Resources knew they weren’t ready to provide that data and decided to do a project Phase II giving them more time to complete the information. According to Carolynne White, Attorney for Connell Resources, the Planning Director found their application sufficient to proceed.

Dan Sapienza, Wellington Attorney and Mayor Chaussee read the Land Use Code aloud making it clear that the definition of Heavy Industrial/Manufacturing with a long list of toxic chemicals would require a setback of 2,640’ from the nearest residential district: not 800’ as approved.

Each Trustee reviewed each item in the appeal and gave their opinion of whether it was Debatable or an Error.

There was a motion to reverse the Planning Commission’s decision to approve Connell Resources site plan for an asphalt plant in Wellington based on Item A non-compliance of a 2,640’ setback due to production of toxic chemicals.

Final Vote: Yes (reverse) 4 No (keep as is/or with modifications) 3

The appeal by Wellington residents Ben and Ayla Leistikow was upheld and the decision by the Planning Commission on June 5, 2023, to approve the site plan is reversed.

Meeting adjourned at 9:39PM

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