HomeMy WebLinkAboutR91-104 Order remanding permit application for Homestake Water Diversion Project Phase IICommissioner �aC/ry %/�l`SdJ� moved adoption of
the following Resolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 91 -_Z6 1�
REGARDING THE ORDER REMANDING PERMIT APPLICATION CONSIDERATION
HOMESTAKE WATER DIVERSION PROJECT, PHASE II
WHEREAS, the Cities of Colorado Springs and Aurora (herein-
after the "Cities" or the "Applicant ") submitted a consolidated
application for the construction of the second of four phases of
a water diversion project commonly referred to as the Homestake
Water Diversion Project; and
WHEREAS, after public hearing, said consolidated application
was denied by the Eagle County Board of County Commissioners (the
"Board ") pursuant Resolution 88 -15; and
WHEREAS, said denial is the subject of an appeal under
C.R.C.P. 106 to the Eagle County District Court, Case No. 88 CV
142; and
WHEREAS, the Court received cross motions for Summary
Judgment; and
WHEREAS, on July 2, 1991, the Eagle County District Court,
among other rulings, ordered the applications for a Permit for a
Major Extension of a Water Project, for a Permit for Efficient
Utilization of Municipal Water Project, and for the Special Use
Permit, remanded to the Eagle County Board of Commissioners for
reconsideration in conformance with the Court's written order of
that date; and
WHEREAS, the Court determined that any reliance upon certain
findings of fact made by the Board under 6.04.15.1.p,
6.04.15.1.1, 6.04.15.1.b, 6.05.15.1.b of the Eagle County admini-
strative regulations, was improper; and
WHEREAS, with regard to the application for a Special Use
Permit, the Court determined that any reliance upon certain
findings of fact made by the Board under the Special Use Permit
criteria 2.09.02.13.f, 2.09.04.1.a, and 2.09.04.1.b, was
improper; and
WHEREAS, upon proper notice, the Board held hearings
pursuant to said remand on October 21, 1991 and November 25,
1991; and
WHEREAS, the Cities moved for the submission of and
inclusion of certain federal agency documents into the record of
the decision; and
WHEREAS, the Board allowed and received legal arguments by
the parties regarding whether the criteria for approval, as
limited by the Court's July 2, 1991 order, were satisfactorily
met by the evidence and testimony presented with the application;
and
WHEREAS, the Board deliberated upon the issue of whether the
criteria for approval, as limited by the Court's July 2, 1991,
order, were satisfactorily met by the evidence and testimony
presented with the application.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, the record of testimony and evidence used in the
consideration of the application is closed and shall not be
reopened.
THAT, the Cities' motion for the submission of and inclusion
of certain federal agency documents be denied.
THAT, with regard to the application for a Permit for a
Major Extension of a Water Project, Section 6.04.15.2 of Eagle
County's administrative regulation entitled "Major Extensions of
Existing Domestic Water and Sewage Treatment Systems" states that
"(t)he permit shall be denied if the applicant fails to satisfy
all the criteria outlined in Subsection 6.04.15.1."
THAT, with regard to the application for a Permit for
Efficient Utilization of Municipal Water Project, Section
6.05.15.2 states that "(t)he permit shall be denied if the
applicant fails to satisfy all the criteria outlined [within
6.05.15.11."
THAT, in light of the requirements of Sections 6.04.15.2 and
6.05.15.2 of the administrative regulations, and the remaining
finding of fact within Sections I and II of the Findings of Fact
in the Resolution 88 -15, the Board hereby reaffirms its denial of
the application of the Cities for the following designated
activities of state interest:
A. Major extension of an existing water collection system
(Section 6.04); and
B. Efficient utilization of a municipal water project
(Section 6.05).
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THAT, there remain certain critical findings listed within
Section III of the Findings of Fact in the Resolution 88 -15,
specifically:
113. (2.09.02.13.e) The Project may adversely affect fish,
wildlife or migratory ranges.
4. (2.09.02.13.e) Evidence presented at the hearing failed
to demonstrate that the adverse effects on fish, wildlife or
migratory ranges can be adequately mitigated."
THAT, in light of the remaining critical findings of fact
within Section III of the Findings of Fact in the Resolution 88-
15, the Board hereby reaffirms its determination that the
Applicant has failed to satisfy the criteria of Section 2.09 and
therefore reaffirms its denial of the application of the Cities
for a Special Use Permit.
THAT, this resolution and the related deliberations have
been undertaken, notwithstanding any objections the Board may
have to the Court's ruling as to the authority of the Board to
consider, regulate, and deny this application, in an effort to
comply with the remand of the Court. The Board reserves all
rights of appeal and shall not be estopped by the passage of this
resolution from arguing on appeal its authority in excess of the
limits placed upon it under the remand.
The Board finds, determines and declares that this
Resolution is in the best interests of the health, safety and
welfare of the County of Eagle, State of Colorado.
MOVED, READ AND ADOPTED
the County of Eagle, State
tithe 17th day of December
County Commissioners
by the Board of County Commissioners
of Colorado, at its regular meeting
1991.
COUNTY OF EAGLE, STATE OF COLORADO,
By and Through Its BOARD OF COUNTY
COMMISSIONERS
By:
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Donald H. welch, Commissioner
Commissioner au seconded adoption of
the foregoing resolution.
was as follows: The roll having been called, the vote
Commissioner George A. Gates
Commissioner Richard L. Gustafson 'e/
Commissioner Donald H. Welch
This Resolution passed by G/�r/y{1: vote of the Board of County
Commissioners of the County of Eagle, State of Colorado.
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