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HomeMy WebLinkAboutMinutes 03/11/2024 PUBLIC HEARING March 11, 2024 Present: Matt Scherr Chairman Jeanne McQueeney Commissioner Kathy Chandler-Henry Commissioner Matt Peterson 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: Planning File - Eagle County Room 1. ZS-009280-2022 Rincon Materials Special Use Permit Karl Barton,Contract Planner-Eagle County Community Development special Summary: Request for approval of a resource/gravel extraction review use. File No./Process: ZS-009280-2022 Project Name: Rincon Materials Location: TBD,north of Highway 6 and east of the Colorado River, Gypsum area(Parcel#1935-322-00-005 and 1935-323-00-006) Applicant: Mike Young,Rincon Partners, LLC Representative: Sean Hanagan,High Summit Planning; Ben Langenfeld, Lewicki&Associates,PLLC Staff Planner: Karl Barton,AICP, Contract Planner Staff Engineer:Nicole Mosby, PE, CFM, Senior Staff Engineer Staff Attorney: Matt Peterson,Assistant County Attorney Staff Report Summary: Eagle County has received an application from Sean Hanagan of High Summit Planning and Ben Langenfeld of Lewicki&Associates on behalf of Rincon Partners, LLC(the"Applicant"and/or"Rincon") for a Consolidated Special Use Permit for resource/gravel extraction having an operational name of"Rincon Materials"(also referred to as the"Application","Special Use Permit", or"SUP"). The subject property is approximately 108 acres of Resource (R) zoned land(the"Property") located north of Highway 6 and east of the Colorado River and Union Pacific Railroad right-of-way as depicted in Figure 1. The Applicant proposes an overall permit area of 106.7 acres with a disturbed area of 69.5 acres,which includes mining pits, an access road, a conveyor route, and a facilities area. The mining area will be located on a dry terrace elevated above the main line of the Union Pacific Railroad and irrigated pasture to the west,Bureau of Land Management(BLM)public lands to the east, and rural residential and industrial parcels to the north and south. The expected maximum mining area at any time will be 5-10 acres,with the facilities area being roughly 9 acres in size. Mining will occur in two pits, starting with the southern Pit 1 then extending to northern Pit 2. Mining within each pit will progress from west to east in order to utilize natural berms for screening of the operation. The facilities area will consist of,but is not limited to, a wash plant, parking area,material stockpiles,yard office, and an equipment fueling and staging area. Mining activities are anticipated to take 10 years to complete at roughly 225,000 tons per year,with two years at the end for final reclamation. Material production is anticipated to fluctuate during the operation due to market demand. Reclamation of the site will be conducted as the mining progresses. Currently the Property is a dry terrace 1 03/11/2024 with no structures or operating uses. The Future Land Use Map(the"FLUM")of the Dotsero Area Community Plan(the"DACP"),adopted in 2012, designates this Property as "Rural Agricultural"and"Outlying Service Commercial"with a"Potential Community Center"overlay. If the Special Use Permit is approved,the next step in the process is the submittal and review of a grading permit and other applicable development permits (electric, mechanical,plumbing, etc.where applicable). Application materials include a number of items such as an Environmental Impact Report, Operations Management Plan,written project description/narrative,maps, and other technical documents which are analyzed and discussed in more detail below. Staff conducted a review of the Application materials and supplemental information provided Page 2 of 37 for the proposed Special Use Permit. This review, and evaluation of the information against the standards of approval for a Special Use Permit per Section 5-250 of the Eagle County Land Use Regulations(the"ECLUR"),has led staff to conclude that a positive finding can be made for all standards of approval. Staff recommends approval with conditions of the Special Use Permit. Chairman Scherr reminded everyone that this was the first time the board had heard the file so he asked that everyone be patient and apologized for the delays in the process. Karl Barton,contract planner with Eagle County,presented the application. This was Rincon's Material's second application. He reviewed the history and background of the application. The referral period was from January 19 -February 23,2023. The Eagle County Planning Commission recommended denial of the application, 4-1. He reviewed the referral comments and noted that many comments had been received. The comments made in opposition related to concerns about increased truck trips, sufficient gravel supplies, effect on visual and scenic quality,water diversion on stream flows,negative impact on wildlife, noise, counter efforts to protect Colorado River and Open Space, and concerns that reclamation would be insufficient and not be well done. The Eagle County Planning Commission comments related to the negative impact on wildlife, scenic and visual resources,the negative impact on the environment, inconsistency with the Dotsero Area Community Plan, and compatibility with surrounding uses. He noted that the presence of sufficient demand for gravel was not an evaluation criteria. Sean Hanagan with High Summit Planning,presented the applicant's request. The applicant believed the area was a good location for extraction and a high-quality source. Eagle County had a demand for sand and gravel for homes,roads, airports, and ski resorts. The gravel pits provided self-sufficiency,resiliency, and retained tax dollars. The time frame for the Special Use Permit was 10 years. There would be no mining activity from April 15th to June 30th,no new disturbances from Memorial Day to Labor Day, and no mining on Sundays. The applicant reached out to the community for input, and based on feedback,the applicant removed Pit 3. The active mining area would not be visible. Reclamation would include reseeding and pasture land. Besides the Special Use Permit through the county,many permitting authorities and permits were required. There were strict compliance requirements and fines; all permits were revocable for non-compliance. He reviewed the comments submitted by the Eagle River Watershed Council, Eagle Valley Land Trust,Department of Public Health and Environmental,and Colorado Parks and Wildlife Ben Langenfeld,Lewicki&Associates,PLLC. reviewed the comments from Colorado Parks and Wildlife (CPW). CPW's primary concern was that adding a conveyor belt would create barriers for bighorn sheep. The applicant had already established a season of non-operation to protect the sheep during calving,but CPW still expressed concerns with the system. To address these concerns,the applicant developed a conveyor system that would include jump conveyors which would be mobile. During the non-operational times of the year,they could be moved. Condition#3 addressed the wildlife management plan and identified mitigation measures to minimize negative impacts to the wildlife. He reviewed the mining operation. He noted that the applicant had a mining operations plan that laid out the checklist of items that should be done to accomplish the proposed mining reclamation operation. The conveyor system would reduce noise and dust impacts. No asphalt or concrete would be produced on the site. There would be no mining activity from April 15th to June 30th, and no new disturbance would be opened from Memorial Day to Labor Day. Access was away from Colorado River Road and tucked up against the hillside. They would construct berms from site grading which would block the activity from view and block noise. There was a truck loop for sales and a paved access road to Highway 6. Reclamation would happen concurrently. Water consumption was primarily for dust control on site and agriculture. 2 03/11/2024 Mr. Hanagan reviewed the standards for approval. This project had been vetted multiple times. The applicant worked with Eagle County staff to ensure nothing was left to uncertainty. At this time, staff recommended approval and had determined the standards for approval had been met. The applicant believed the application met the standards and was in compliance with the Future Land Use Map(FLUM)and consistent with economic goals. They were also convinced that the plan was consistent with the Dosero Area Community Plan and compatible with the surrounding uses. He reminded the board that nine times they had approved extraction SUPs with the combination of Resource Zoning and Rural FLUM. Former mines included the Duck Ponds Open Space, Two Rivers Village, and the Edwards Preserve. The design minimized adverse impacts as there would be a paved route,watering for dust mitigation, and undisturbed hillside screaming. State permits for air and water were required for protection of natural resources. The majority of the truck traffic would be minimal compared to the existing traffic down I-70 past Dotsero. The wildlife management plan protected the movement of animals through the corridor. The Conservation Easement acted as a buffer, and the habitat where the mining operation would take place would be reclaimed to a condition that was more habitable than it was currently for wildlife. The project was adequately serviced by current public facilities. There would be strong enforcement by both state and county permits as mining operation plans required rigid reporting. Mr. Barton reviewed the standards and indicated that the project standards were consistent with the Comprehensive Plan and goals related to general development, economic resources,water resources,wildlife resources, and environmental quality. During a review of the operational plan, it was found that the request met the rural agricultural land use designation. Staff considered the compatibility with surrounding land uses and believed that condition#2 addressed compliance with the special use application and mining operation plan. Condition#3 addressed the wildlife impact and required that the applicant prepare a plan to avoid significant habitat deterioration and maintain viable habitat and connectivity for the wildlife in the area. The applicant was required to consult with CPW on drafting a wildlife plan. The plan was to be reviewed by CPW and approved by Eagle County Open Space &Natural Resources department before issuing a grading permit. The applicant indicated that topsoil would not be stacked and seeded as it would look unnatural. The operation would be adequately served by wastewater,potable water,roads, police, and fire protection,and emergency medical services. Landscaping on the site would be part of the reclamation process. Wildfire and geologic hazards were low. The housing requirement would be met through a deed restriction on an existing home. Staff recommended approval with conditions. Matt Peterson,Assistant Eagle County Attorney,reviewed the issue of public benefit. He stated that Colorado law required that the board consider only the standards of approval that applied to the application. The standards in the county's Land Use Code(LUC)that applied to a Special Use Permit application did not contain any requirement that the applicant demonstrate a public benefit or offer a benefit to the community. The standards also did not allow the board to factor in construction costs,the cost of P gravel,trips from other gravel mines, or consider other gravel mines that had been approved. He stressed that the board could only consider the standards for a Special Use Permit. The applicant was not required to provide any public benefit or offset any of its impacts. Commissioner McQueeney asked about the berming screening the 30 ft. stockpile. Mr. Langenfeld stated that the stockpile heights could not be taller than 30 ft. There was a variance to allow berms to be taller than 8 ft. and the proposed berm would be 40 ft., tall enough to hide the stockpiles. Commissioner Chandler-Henry had questions about the non-operation period and whether there would still be mining and crushing operations continuing during that time. Mr. Langenfeld stated that there were two different seasonal restrictions,one specific to CPW requirements Between Memorial Day and Labor Day,they would only be operating within the existing footprint in the pit,but they could not open up a new section of ground. During the CPW closure from April 15th to June 30th,there would be no crushing or mining. Commissioner Chandler-Henry asked what ran the conveyor belt. Mr. Langerfeld stated that it ran off electric power. Commissioner Chandler-Henry asked about the removal of the converter belts. Mr. Langerfeld stated they would be removed from April 15th to June 30th. He would be willing to move them other times based on experience to be gained during operations. Commissioner Chandler-Henry asked to hear from CPW about their concerns. She wondered if the animals would stick around or go elsewhere. 3 03/11/2024 Brian Woodrich, District Wildlife Manager with Colorado Parks and Wildlife,believed the converse belts would create a barrier. He worked with the applicant to create passage areas. The bighorn sheep were always on the move and needed areas to move through. There was a peregrine falcon historic zone north of the buffer zone. CPW recommended a buffer zone of a half mile from active historic or current nesting sites. Currently,no nesting structures existed but they were actively looking for peregrine falcons in the area. The applicant would be notified by CPW if the falcons moved into the buffer zone. Commissioner Chandler-Henry asked if it was fair to say the converter belt was a concern for wildlife. Mr. Woodrich stated that with the amount of species that use the area, such as elk,mule deer, moose, bighorn sheep,bald eagles, and peregrine falcons,any type of barrier was concerning to CPW. Chairman Scherr wondered what the impact would be to Rincon or their obligation if the buffer zone was impacted. Mr. Langenfeld stated that the Colorado Division of Reclamation Mining and Safety enforces many of CPWs'requirements of that nature, so their state permit would reflect the recommendation. Ricon would be required to change operations to accommodate the encroachment issue. Mr. Peterson believed that would be the primary mechanism of enforcement and did not believe the county could put a condition on the file just given that the project was outside of the buffer zone. Chairman Scherr reviewed the standard and wondered if the wildlife issues had been fully mitigated. Mr. Woodrich stated that any disturbance resulted in a negative impact on wildlife. The best management practices were to mitigate throughout the process and keep the existing species that utilize the area in the area. CPW valued the relationship with counties,municipalities, applicants,and local communities to make ensure their recommendations were heard. Chairman Scherr had questions about enforcement and whether it was county staff's responsibility to create the regulatory language that would be enforced. He wondered if there was a risk. Mr. Peterson believed enforcement would be based on Condition#3 and the applicant's agreement. If at some point the applicant was no longer following the plan,the county could revoke the special use permit. Commissioner Chandler-Henry asked about the man-made berm locations and what would be done with the topsoil being removed. Mr. Langenfeld explained that the man-made berms would be located by the facility area and would act as a noise barrier for the facility's operation. The topsoil would be stockpiled and seeded in the mining area. Mr. Hanagan stated there would be some vegetative screening and some soil would be used in the wildlife corridors. Chairman Scherr opened public comment. Mr. Peterson stated that the board's policy provided that three individuals may cede their time to one individual. He asked that anyone ceding their time come to the podium and cede their time. Patrick Tvarkunas,Eagle resident, spoke. He believed that the current owner purchased the property knowing full well that an application was denied for the Coyote Mine. He believed the owner knew what he was getting into and selfishly took everyone's time to continue to reintroduce this application. It didn't make sense to put a mine in this area. The area was beautiful and was a treasure for generations to come. Eddy Welsh, owner of a construction company based in Missouri and second homeowner in Avon, spoke. He built bridges in Colorado and understood that it was tough for CDOT to build roads in the area due to the increase in cost. As a taxpayer,homeowner, and business owner,he hoped the board would consider the application. It was an important part of the progress in Colorado. He expressed support for the application. Ken Hoeve spoke. He defined a sell-out and asked the board to not sell-out the community. He asked the board to not take the word of a second homeowner but to take the word of a 32-year local who utilized the river all the time. This project would impact that river corridor. Susie Kincade spoke. She was a 44-year resident of the valley and was known as an environmental activist. She was also a community activist and stated that there had been no community outreach done in the Two Rivers community. She went door to door,and at least 98 percent of the people she reached did not want this in their backyard. The mining operation provided nothing for the people of Dotsero. She provided a map of all the existing gravel mines in the area and talked about the need for more gravel. There hadn't been community outreach,and it was in direct opposition to what the county deemed to be the highest priority of the Colorado River corridor for 4 03/11/2024 recreational and wildlife use,hunting, fishing, and boating. It was a place where folks from all over the state and world came to enjoy the beauty of what Colorado had to offer. A second mine on this stretch of river traffic flew in the face of those values and in the face of taxpayer money that helped fund the $16 million in improvements along the river. The increased traffic on Highway 6 would create a dangerous situation. All the mitigation kept pointing to the sign that it didn't belong. She believed it was a crime not to consider the community. She asked that the board deny the application. This didn't belong in the area. Andy Wiessner, a Pitkin County resident, stated that mitigation was"the action of reducing the severity, seriousness,or painfulness of something." In his experience of living 40 years in Colorado,we were mitigating wildlife out of existence. Many of the Dotsero residents were the backbone of the community,and he believed it was an injustice to put a facility near them that no one else wanted near them. Jack Sweeney spoke. He had been a raft guide for many years. He believed the area was pristine and opposed the application. Kyle Jessup spoke. He lived in the area for the past ten years. He operated Alpine Kayak,working with the youth in the valley. He expressed strong opposition to the mine. This mining operation would be devastating for his business and the community. Carol Alleman spoke. She has lived in the valley since 1973. She believed there were many examples over the years where the county should have just said no. She mentioned the reclamation of the Edwards gravel pit, and it was merely weeds. These types of disturbances cause stress and reduce the birth and survival rates of wildlife. She didn't hear anyone address the issue of water. The water table was very close to the surface to use mag chloride. Michele Wolfe spoke. She lived north of the proposal and got her water from Deep Creek. She was concerned with the water table. She had never been contacted. This was a pristine area and a gateway to the Flat Tops. It was a critical area for wildlife. She believed it was important to the integrity of the view and to protect the recreational value. She hoped the board voted no. Claudia Bryan spoke. She had lived in the area for the past 26 years and lived near the proposal. She was not contacted by the applicant. She expressed opposition to the Rincon Material proposal. Recreation and wildlife would be affected by the disturbances. She believed their operational plan was unrealistic with regard to the numbers provided. She wondered if this was what folks wanted to see at the west entrance of the county and the upper Colorado River recreation area. This was not a feasible project and she asked that the board consider the public opinion and the hundreds of letters that had been received. Pete Wadden,a resident of Gypsum and avid angler, spoke. He believed it was irresponsible to approve a file without seeing a final wildlife mitigation plan. He also expressed concern for sediment in waterways. He didn't believe it would be wise planning to cluster an industrial area at the confluence of the Eagle and Colorado Rivers. This was a special place to many in the community as well as an economic driver for the community. He also mentioned the impact on the Ute Trail views. The bighorn sheep,a designated state animal,were dependent on habitat like this. Nicole Dewell, a 28-year homeowner and taxpayer, spoke. She opposed the application. There were no meetings for Two Rivers or Dotsero Trailer Park residents. She was a rafter and a mom and loved the area. She mentioned the economic impact of this proposal. James Dilzell, Executive Director for the Eagle River Coalition, spoke. The river was an economic powerhouse for the county and the area acted as a gateway for numerous recreational opportunities. The river corridor was eligible for Wild and Scenic designation and was managed as such. This felt like a very counter-proposal for that river corridor. His organization asked that the commissioners listen to the community and Planning Commission and vote no for this proposal. Andrew Petersen spoke. He was a commercial fishing outfitter. The proposal seemed at odds with the improvements to the river access and land acquisitions. He had concerns about the water, sediments,mag chloride, and runoff. He believed that another gravel pit would not substantially drop the cost of gravel. Scott Willoughby, an Eagle resident, spoke. He has done conservation work for Trout Unlimited and has been a river guide, fly fisherman, and hunter. The mining operation had been denied numerous times and the community had spoken out against it every time. The river was beautiful and family-oriented. He encouraged the board to vote no. 5 03/11/2024 Mike Dantac spoke. He'd lived in the area for 31 years and had seen a lot of growth in the area. He believed that the gravel had to come from somewhere and this was a great resource. The detriment to the community would be more traffic on I-70. He supported the application. Tom Marcin, of Marcin Engineering and Edwards, spoke. The project was east of the railroad tracks and was shielded with berms. The cost of transporting material from other areas was costly. He supported the application. Ashlyn Curtis spoke. She followed the project for the last 6 years and stated that flyers had been distributed in English and Spanish. She spoke about The applicant's efforts and accommodations. She supported the application. Jeff Lake spoke. He believed all the wildlife points were valid. He expressed concern for the crushing of rock and the impact of releasing silica into the environment. Harry Vernell spoke. He lived on Colorado River Road and was against the gravel operation. Since 1984 they have been opposed to gravel pits in the area. This operation would be visible no matter what. Frances Hartogh spoke. She spoke about the detrimental effects on wildlife. At the very least, she asked to wait until a final wildlife plan was reviewed. She encouraged a no vote. Mike Browning spoke. He was a 30-year resident of Eagle County. He believed the wildlife population was in crisis due to ongoing development. Mitigation didn't mean no impact. It just meant reduced impact. From a public policy standpoint,the board should not leave review of the wildlife mitigation plan for review only by staff. The board should hear the plan directly and decide whether the mitigation measures were adequate. The future of Eagle County was not in mining but in recreation. He urged the board to deny the application. It was time to say no to these kinds of projects or at a minimum make sure the board can review the CPW agreement. Chairman Scherr closed public comment. Mr. Langenfeld stated that there were a lot of good comments made. He stated that Two Rivers was approximately one mile away from the development and they focused north of the property. The impacts on I-70 were minimal. They did community input early on and kept them in mind as they tried to mitigate the impact of the project. The location was chosen for the availability of material. The use of conveyor belts were seldom used anymore but the applicant recognized that they would eliminate noise,dust, and visual impacts that truck traffic would create. There were rivers throughout Colorado lined with gravel pits. They would use vegetation at this site that would be appropriate for the location. He emphasized that Eagle County's Land Use Code identified that there would be some impact from any uses. Ricon Materials had made changes and adjustments to make this operation work. Mr. Hanagan stated that it was important to point out that he'd never seen an application go to the lengths that this applicant had gone through to mitigate this proposal. He believed the work was extraordinary and met the standards. Mike Young,with Rincon Partners, LLC, stated that he bought his first property in Dotsero 25 years ago. He currently owns 200 acres in Dotsero and has always been respectful of the river. He was proud of the property. They use the river as much as everyone, if not more. There were zero facts that the operation would affect anyone's experience of the river. It was a short-term mining plan and they would leave behind a beautiful valley and wetland. Matt Peterson offered some guidance on what the board's role was in considering a land use application. The commissioners could not decide on an application based on personal opinion or whether they like or dislike a particular application. The commissioners were tasked with applying the county's land use code to this application. There were eight standards for approval to consider. With this particular application,the board could not consider the prior withdrawal or denial of any applications associated with this project, the cost of gravel,the availability of gravel,the existence of other gravel mines in the area, approvals of other gravel mines,the social or economic status of the applicant or surrounding residents, or whether sufficient community outreach occurred or not. Commissioner Chandler Henry thanked staff and the applicant for providing a clear application. In considering all of the standards and recommendations and conditions,she did not see how a gravel pit was compatible in this location based on compatibility with the Comprehensive Plan,the Dotsero Area Community Plan, and surrounding uses. She also did not see minimizing adverse environmental impact on wildlife. She 6 03/11/2024 believed the remaining standards were met. The Comprehensive Plan talked about the quality of life,retaining agricultural uses, and the qualities that make Eagle County a world-class tourist destination and a great place to live,work, and play. These qualities should be identified,promoted, and protected. The Dotsero Area Community Plan talked about the unique views,the Colorado River corridor being a regional treasure, and visual quality. The view sheds were not only along the Colorado River but also along the roads to the Flat Tops. She believed the visual quality was compromised by this proposed special use. The major concern was the wildlife and environmental impact. The jump conveyor belts seemed like a big experiment with the bighorn sheep, elk herds, and other wildlife. She believed the proposed special use permit did not meet standards#1,#2 and#5. She believed that wildlife, agriculture, and recreation deserved protection, and based on those reasons, she would be voting no. Commissioner McQueeney appreciated everyone's input. She also appreciated the applicant's efforts to avoid the negative impacts. Although this was a much-improved plan without Pit 3, it came down to whether it was enough. When it comes to the standard of conformance with the comprehensive plan, economic resources, and wildlife resources,the number one resource was visitors. She believed the scenic value needed to be protected and agreed with the comments about the importance of wildlife. She did not believe the proposal met the standard of being consistent with the comprehensive plan. Chairman Scherr agreed with all the statements of his fellow commissioners and that the same three standards had not been met. He was prepared to vote no. Mr. Hanagan wondered if the applicant could request that the application be tabled to address the wildlife plan. He also wondered if changes to the plan could be made to meet the standards that the commissioners believed had not been met. Mr. Peterson stated that it was really whether the current application met the standards for approval. The application could request a tabling,but he advised the applicant that the commissioners would have to make a finding of good cause to grant the tabling. Mr. Hanagan requested a tabling to modify the application to further meet the standards. Commissioner Chandler-Henry stated that while there could be additional information on the wildlife plan, she did not believe she needed further information on the other standards. Commissioner McQueeney stated that she was not inclined to approve a tabling request. Chairman Scherr did not believe this was an appropriate site for a gravel pit regardless of all the mitigation. Commissioner McQueeney moved to deny the tabling request. Commissioner Chandler-Henry seconded the motion. The vote was unanimous. Mr. Peterson stated that there was one other option. The applicant was entitled to withdraw his application. Mr. Hanagan stated that the applicant wished to withdraw their application. Mr. Peterson noted that the record reflects the application for the special use permit for the Rincon Gravel Mine operation has been withdrawn. EAGie_ There being no further business befo I ` d, 1 meeting was adjourned until March 12,2024. Attest• ' (// le o the Board Chairman 7 03/11/2024