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HomeMy WebLinkAboutMinutes 03/01/2021 PUBLIC HEARING March 1, 2021 Present: Matt Scherr Chairman Jeanne McQueeney Commissioner Chandler-Henry Commissioner Beth Oliver Deputy County Attorney Holly Strablizky Assistant County Attorney Kathy Scriver Deputy Clerk to the Board This being a scheduled Public Hearing,the following items were presented to the Board of County Commissioners for their consideration: Executive Session - Holy Cross 1. Legal advice concerning ZS-9014 TNT Botanicals, Gypsum Creek Marijuana Cultivation- Holly Strablizky Planning File - Eagle County Room 1. Planning File: ZS-9014, Gypsum Creek Marijuana Cultivation/TNT Botanicals Tez,Hawkins, Planning Executive Summary: The Applicant seeks approval for a Special Use Permit to allow for the expansion of an existing outdoor marijuana cultivation facility from 2 acres to 40 acres. The expansion also includes adding a 5,000 sqft. Marijuana infused product(MIP) extraction facility, a 3,500 MIP storage structure, two barn structures, and thirty shipping containers to the property. To view and download all staff reports and attachments in addition to application materials. Commissioner McQueeney thanked the applicant for the invitation to visit the site. She missed the site visit because she was in quarantine due to exposure. She had visited the site on other occasions and understood the orientation of where the file was located. Tez Hawkins,Eagle County Staff Planner, stated that there had been discussions with the Gypsum Fire Protection District(GFPD)regarding fire protection. Justin Kirkland, Gypsum Fire Chief, spoke. He stated that he'd been working on the project for a couple of years now. There were three components they considered based on the adopted fire code: access for responders,water, and suppression systems. The challenge was the ruralness and the access to the upper bench. There was some water on the lower bench,but code required that the water be within 500 ft. Access to the upper bench of the property was challenging due to the width of the road and curves. Because it was a marijuana grow/processing facility, it required a fire suppression system with sprinklers. In addition if the facility was declared an F1 occupancy, it would have to have suppression. Without building plans,it was difficult to understand what exactly was needed. There were a lot of variance needs based on all three components. But until the applicant could provide actual building plans, it was difficult to move forward. Taylor Ryan,Eagle County Staff Engineer, concurred with Chief Kirkland's overview. He believed the variances needed could impact the roadway standards as well. 1 03/01/2021 Commissioner Chandler-Henry asked Chief Kirkland if the current status was that the GFPD was waiting for information from the applicant on the building plans and any approval for any variances to the fire suppression systems. Chief Kirkland stated that if there were going to be buildings and/or structures proposed,more information would be required. They weren't as concerned about the agriculture part. Mr. Hawkins reviewed the final report by Colorado Code Consulting that identified the existing and proposed buildings as F 1 s(industrial buildings)and the operations as low hazard. With regards to access,the report discussed the bridge located internally on the property and that it must be maintained to support the loads of a fire truck,have adequate width, and have a turnaround. The report had concerns with the foundation of the shipping containers related to moisture,drainage, and solid support. High winds were also a concern at the high elevation,requiring tie downs. The Eagle County Building Resolution adopted in 2016 required that industrial buildings have plumbing fixtures,bathrooms,portable water, and an onsite wastewater treatment system or a public wastewater treatment system. Vance Gabossi,Eagle County Building Official, stated that in July of 2016 the resolution was adopted. He reviewed the electrical issue that had come up. He requested that corrections be made for the safety of the job site. Commissioner Chandler-Henry asked about the pellet stove on the upper bench and whether it had been permitted. Mr. Gabossi stated that the pellet stove had not been permitted. Chris Green with Ago Studios stated that he wanted to focus on Chief Kirklands comments to the GFPD reviewing all the issues in relation to a building permit application. Since the applicant hadn't been approved for the special use,they hadn't designed the buildings on the upper bench. Commissioner McQueeney wondered why the board would consider a special use permit when the current permit was out of compliance. Commissioner Chandler-Henry stated that it was not unusual for the board to help an applicant come into conformity through a special use permit renewal or new special use permit process,but she was not seeing any movement by the applicant to come into conformance with any of the non-conforming items from the first special use permit. The applicant had, in fact, stated that they did not agree with six of the nine conditions. At this time, the application was not one that could be approved. Commissioner McQueeney agreed with Commissioner Chandler-Henry's comments, and at this time, she was not in favor of approving this application without the nine conditions being met. Chairman Scherr stated that he'd only be comfortable approving the file with all the conditions recommended by staff. The other option would be to deny the file. Holly Strablizky,Assistant County Attorney, spoke. She reminded the board that there may be public comment before they moved forward into deliberations. Morgan Beryl, Eagle County Community Development Director, stated that when staff found out that the existing special use permit was not being complied with appropriately,they had a few meetings with the applicant to discuss the issues. One of the concerns that the applicant had at that time was a major loss of crop. In order for them to come into compliance immediately, it would have required them to remove the shipping containers and other unpermitted improvements that they had made. Staff was sensitive to the idea of them losing their main revenue stream. It was at that time that an updated special use permit was suggested;the definitions of industrial and processing were discussed and a code consultant was brought on to ensure that the building resolution was appropriate. If the special use permit was denied at this time,the county would be required to engage in enforcement actions,requiring removal of many of the structures. Commissioner McQueeney asked about the ramifications of a denial. Ms. Strablizky stated that if there was a denial the applicant would not be able to reapply for one year. She believed another option would be to table the file for more information, at the applicant's request. Commissioner McQueeney asked Chief Kirkland about the life-safety issues. She believed this was a good crop but had concerns around safety and the people working in the buildings. Chief Kirkland stated that the challenge came when there were structures requiring a different strategy. The area was a canyon area where fires could grow quickly. 2 03/01/2021 Commissioner Chandler-Henry wondered if it was possible to bring the operation into compliance. Chris Green stated that the applicant was committed to and prepared to engineer onsite waste treatment systems. They had potable water and the rights to it. There were multiple options on the lower bench. What was sited in the application was buying water rights to offset water use for potable water on the lower bench. The operational nature of this business was incredibly dynamic. Commissioner McQueemey questioned what it would take to come into compliance on the first special use permit and if it could happen in a timely fashion. Mr. Green stated that on behalf of the applicant,they had done some electrical work,work on egress, and were working to address the issues with the containers and wind. The 90-day requirement was hard to do in light of where they were with the existing buildings and trying to come up with an alternative to the fire sprinkler systems. Ms. Strablizky reminded the board that the special use permit was being considered. She expressed concern that the board was focusing on the compliance issues. Commissioner McQueeney expressed concern that the applicant was requesting that most of the 10 proposed conditions be removed. She wasn't confident they would follow through without the conditions when they were already out of compliance on the first permit. Ms. Beryl stated that if the county were to launch their enforcement action, all of the structures would need to be removed and the pole barn use would need to change. The reason they were working with the applicant to fix the issues through the special use permit was because their operation necessitated the changes. Staff worked with the applicant to develop the conditions,and the 90-day requirement for building permits was reasonable as the applicant had a significant amount of time to work through many of the issues over the past many months. Sarah Baker, attorney for the applicant, spoke. She stated that the applicant had addressed many of the issues. She would prefer to see many of the conditions deleted as they were conditions that attempted to enforce rules that other agencies oversee. The suggestion in deleting them was more about having one jurisdiction as the authority and not a question of whether or not they were compiling. If the board was struggling with that,then they would accept them if it came down to approval and denial. Condition number 9(nine)was dependent on the building permit and the applicant was unable to get the permit until they got through this process. The 90 days was simply something they couldn't comply with, and extension request was likely. The applicant was bumping up against timing and would like the ability to expand the cultivation operation up to 10 acres this spring. They don't know how long it's going to take to work through the fire suppression issues. The applicant was doing their best to come into compliance. Commissioner McQueeney reviewed the conditions and asked Ms. Baker about Conditions 1 (one) and 10(ten). Ms. Baker stated that Condition 1 (one)brought the county into a design review function and was subjective. Commissioner McQueeney believed the condition achieved the standard of compatibility. She asked that staff weigh in. Ms. Strablizky stated that Condition 1 (one)addressed a voluntary representation in the application. The applicant mentioned in the application that they would build the lower bench buildings in line with the rural character of the neighborhood. As a result, staff put a condition of approval that addressed that voluntary representation. She believed that the design characteristics were straightforward. She did not agree with the dual master argument. In order to meet the county's standards found in section 5-250,the requirements needed to be met, and if they were not in compliance with the standards, there needed to be a way to identify the non-conformances. Ms. Beryl stated that Condition 1 (one) insured conformance with the comprehensive plan. Ms. Baker stated that Condition 10 (ten)was a condition requested by the applicant to address a secondary road that was not previously included. The applicant had no issues with that one. Commissioner McQueeney asked staff to talk about the intention of the 90 days. She was comfortable with the language in the condition because when she read it,there was some flexibility. 3 03/01/2021 Ms. Beryl stated that they had worked with the applicant over an extended period of time. Staff had the ability to accept building permits while there was still a special use permit in process,however,there was some risk to the applicant if the permit was not approved. Staff would accept the building permit applications and review them,withholding approval until the special use permit was approved. Staff felt that the 90 says was incredibly reasonable considering the length of time they'd been in conversation with the applicant. A sentence was added to allow flexibility if there were justifiable reasons that the extension was warranted. Commissioner Chandler-Henry expressed concern that there had been no progress with Gypsum Fire as the file currently did meet the driveway standards and could not be served adequately by the local fire protection district. She asked if there was any reason that the building permits could not have been submitted to Gypsum Fire for review prior to this point. Ms. Beryl stated that it was her understanding that the applicant did engage a fire protection engineer. She believed that issues like this could get resolved quickly with the fire district once the requirements were made clear. Chief Kirkland stated that the county standards were more strict than the fire code. The challenge was that a lot of things were speculative. Commissioner Chandler-Henry asked if there was an agreement from the applicant that the buildings fell under the F 1 industrial building category. Mr. Green stated that the fire suppression system was problematic under the F1 building category. It was possible to get the egress, electrical, and mechanical in a short amount of time. The permitting of the onsite waste treatment systems and fire sprinkler systems got more complicated. Rob Trotter,property owner and applicant, spoke. The only issue he had was that the fire sprinklers could go off accidentally and financially destroy them. He would like the opportunity to work with Chief Kirkland because he believed there were some common sense requirements, and they could find a solution. Ms. Baker stated that the issue was the spring planting within the next couple months. The applicant would like the ability to plant this spring. Chairman Scherr stated that he was proud of the operation and what was being done,but the concern was whether there would ever be compliance. Ms. Baker understood the concerns and the process had been a learning experience. Given the investment that the Trotter's had, the county had great leverage. Mr. Trotter stated that they hoped to get plants in the ground to increase revenue. While they had plants in the ground they would submit a building permit application. He expected to have everything done by September 1st.. He believed there had been open dialog between himself and the Gypsum Fire Protection District. He believed he could comply with the fire department without a sprinkler system. Chairman Scherr opened public comment. Christina De Havilland,Manager at the TNT Botanical facility, spoke. She stated that she had been working for the Trotters for the last year. She spoke about last year's fires and how Mr. Trotter actively responded. She believed if there was a sprinkler system installed, the damage caused by a malfunction could be costly. She was proud to work for the Trotters. Commissioner Chandler Henry moved to go into Executive Session for the purpose of receiving legal advice on planning file ZS-9014, Gypsum Creek Marijuana Cultivation/TNT Botanicals which was appropriate topic for discussion pursuant to CRS 24-6-402(4)(b)and(e)Colorado Revised Statutes. Commissioner McQueeney seconded the motion. The vote was declared unanimous. At the close of the discussion,it was moved, seconded and unanimously agreed to adjourn from Executive Session and re-convene as the Board of County Commissioners. Chairman Scherr closed public comment. 4 03/01/2021 Commissioner Chandler-Henry stated that she was excited about the business concept in Eagle County and wanted to see the business move forward in a profitable manner. She reviewed the eight standards of approval. The proposed conditions were intended to mitigate any non compliance issues. The standard she was most uncomfortable with was adequate public facilities (standard six). If the board were to approve the file, there would be a business operating that was out of compliance with life safety issues,that did not meet the requirements of the Gypsum Fire Protection District,that had employees working onsite at a processing facility, and that did not have a plan in place for getting a fire truck to the facility if something were to happen in the winter. She understood the concerns with the sprinkler system,but she believed those concerns could be mitigated and/or met with alternative plans for suppression. She suggested that the applicant go back and come up with a plan with Gypsum Fire for the life safety issues.As presented now, she could not vote in favor of the file. Commissioner McQueeney stated that she appreciated staff's work on the file. She would be willing to table the file at the request of the applicant. Chairman Scherr supported Commissioner Chandler-Henry's comments. The county's first job was life safety. The non-compliance issues were a concern. He asked if the applicant wished to table the file and move forward. Sarah Baker believed they received some good feedback. The special use permit was a matter of survival to this business. She stated that the applicant would like to request a tabling of the application. They were still hopeful they could achieve a spring planting so they requested a short tabling period.. Commissioner McQueeney moved to table file no. ZS-9014, Gypsum Creek Marijuana Cultivation/TNT Botanicals to March 16,2021. Commissioner Chandler-Henry seconded the motion. The vote was declared unanimous. There being no further busir-s .� oard,the meeting was adjourned until March 2, 2021. 0 ciRADO Attest: Cie to the Board Chairman 5 03/01/2021