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HomeMy WebLinkAboutMinutes 10/17/2000 PUBLIC HEARING OCTOBER 17, 2000 Present: Tom Stone Johnnette Phillips Michael Gallagher James R. Fritze Jack Ingstad Sara J. Fisher Chairman Commissioner Commissioner County Attorney County Administrator Clerk to the Board This being a scheduled Public Hearing the following items were presented to the Board of County Commissioners for their consideration: 1041-0030, SSA-0008, SSA-0009, Adams Rib, Frost Creek Chairman Stone introduced the file being 1041-0030, SSA-0008, SSA-0009, Adams Rib, Frost Creek. The time was noted at 8:00 a.m. Commissioner Gallagher moved to adjourn into "Executive Session" to receive advice from council. Commissioner Phillips seconded the motion. The vote was declared unanimous. Commissioner Phillips moved to adjourn from "Executive Session" and reconvene into the Special meeting. Commissioner Gallagher seconded the motion. The vote was declared unanimous. Chairman Stone made a request for the court reporter's sake that names be stated clearly beforehand. He stated the schedule will be taking a personal break in about one and a half to two hours. There will be a break from 12:00 to 1 :30 for lunch. Jim Fritze, County Attorney, stated this 1041 hearing will be held in accordance with the Pre- Hearing Order. He stated it is not a hearing where expressions of how the public feels about the progress or doesn't is one of the criteria. The criteria are specific technical criteria. Those will need to be addressed. There is provision for the public in addition to the formal parties to ask questions. Those public questions need to be in writing and the name and address of the person asking the questions and who the question is for needs to be written out. We have forms for that. Anytime the public wants to ask a question of any witness, write up their question, and we'll see that the Chairman gets it. If it is relevant and non-redundant, he will ask it. There are a couple of preliminary matters that need to be taken up. One, there was a request by the Town of Eagle to substitute a witness. He would like to deal with that first. He asked Mr. Ferguson whether he received the town's request for a substitution of a witness. Boots Ferguson, Attorney representing the applicant, stated he did not recall seeing it. Ed Sands, Attorney representing the Town of Eagle, stated on October 11, Mr. Powell, the Eagle Town Manager, wrote a letter to Chairman Stone requesting that Chris Jorgensen of Clarion Associates be substituted with Don Elliott of Clarion Associates. Both gentlemen work for Clarion & Associates, which is a consulting planning firm. Both have very similar backgrounds. They are planners and Attorneys, and both are going to testify to the same matters, thus we don't think there is any prejudice to the applicant or any other party. It's reasonable and should be granted. Mr. Fritze asked ifMr. Ferguson had any objection to that? Mr. Ferguson responded no. Chairman Stone stated they will allow the substitution of the witness. Any other matters? Mr. Fritze stated there was one other matter. The Board, in its capacity of permit authority, 1 10-17-2000 received at about five minutes after 4:00 p.m. yesterday, a motion to deny the application. It was unclear. Mr. Sands stated it was also faxed. Mr. Fritze stated it appeared reasonable to allow the applicant to respond likewise in writing to that motion. The Board can take that into consideration and decide when it decides the rest of the application. It will also render a decision on the Town's motion to deny the application, which suggests to the authority that perhaps a good date for that response to be due is the same day that the proposed Findings of Fact and Conclusions of Law are due, October 25, or before. Mr. Ferguson asked if counsel has a copy of that? He was not here and has not seen it. Mr. Sands stated we can certainly get you a copy. Just for point of clarification for the Board and the applicant, this motion has been filed in both applications, Frost Creek file number 1041-0030 as well as in the Ranch file number 1041-0033. So there were dual filings for this motion. Mr. Fritze stated the Board did receive both filings. However, we are only hearing the Frost Creek filing. Mr. Sands stated he has one other point of clarification regarding the Pre-Hearing Order. It notes that, for example, after the applicant presents its case in chief, there is cross-examination. Does the Board intend to permit that cross-examination witness by witness, or cross-examination at the end of the applicant's case in chief? Mr. Ferguson stated he believes that the order is complex and perhaps the cross-examination should take place at the end of each presentation regarding the criteria so that then we can move along. Mr. Fritze stated if the parties are in agreement, this is a fair opportunity for everybody to get their questions in. Mr. Ferguson stated the Pre-Hearing Order contemplates closing comments, but there was not a specific place indicated where in the order of proceedings they would take place. He assumed they would be at the end of all testimony. Mr. Fritze stated they would be at the end of all the testimony. In addition, they are welcome to submit proposed findings and any argument they want to make in written form to the Board. The Board will end the hearing at the conclusion of the testimony and whatever additional arguments are made. When we come to the deliberation phase, the Board can take it from there. Also we're contemplating that all witnesses will be sworn. Based on what the parties have indicated as their style of presentation, it might be easiest to swear the witnesses as a group. Sara Fisher asked all to stand and raise their right hands. Following the swearing in, each of you state your name and spell it for the court reporter. Chairman Stone stated we will then proceed with the order that was specified in the Pre-Hearing Order. The first order of business will be the applicant's case in chief and cross-examination by other parties. Mr. Ferguson stated with him today is Randy Cloyd, General Manager for the project, and his staff of consultants. Fred Kummer, president of Kummer Development Corporation, asked him to apologize to you for his schedule. He is on the East Coast and is unable to reconcile his scheduling conflict. He will be flying in this afternoon and will be here tomorrow. He stated Kummer Development Corporation owns approximately 1100 acres in the Brush Creek Valley South of the Town of Eagle, known as the Frost Creek property, and sometimes known in the past as the golf course property. It has received sketch plan approval from the Board of County Commissioners for the development of 300 single-family units, 15 accessory dwelling units, a golf course, clubhouse with tenant facilities, golf course and open space, and water and wastewater treatment facilities and administrative offices. All of these facilities are located on site. The Town of Eagle's municipal water treatment facility is on property that is adjacent to the project site. The application before them is for a 1041 permit for the construction of a water treatment plant to treat water for potable use of 100 of the single-family residences and 15 accessory 2 10-17-2000 units, together with the golf course clubhouse facility and other nonresidential uses, excluding irrigation. The application is also for a 1041 permit for the construction of a wastewater treatment plant and lift station to treat the effluent from the entire project and discharge the same into Brush Creek on the project site just downstream from the points of diversion for the water service. Lastly, the application is for a 1041 permit for the construction of an extension from the existing Town of Eagle municipal water treatment plant adjacent to the property to service 200 ofthe units with municipal water from the town pursuant to an agreement that was entered into between the parties in 1983. The application was submitted together with accompanying documents and was accepted to the applicable provisions of the Land Use Regulations. A public hearing was held before the Planning Commission on September 6, at which time testimony and exhibits were introduced in support of the application. The Planning Commission approved of the application by a 4 to 1 vote, with one abstention. While the Town of Eagle will be servicing 200 of the project units, necessitating 1041 permit to be issued under the criteria set forth in sections 6.04.15 and 6.05.15 in the Land Use Regulations, it has refused to serve the remainder of the project. Accordingly, there is no water treatment plant that services this area for the remaining needs, necessitating the construction of a new plant. In addition, there is no wastewater treatment facility serving the area. The main body of our presentation has been organized based upon the criteria this Board must find to approve the application. The applicable criteria are set forth in sections 6.03.15,6.04.15,6.05.15 of the Land Use Regulations. As indicated, there is new water and sewer service and the efficient utilization of municipal water projects respectively. What they have indicated previously is that he will read the criteria and then introduce the witnesses who will present evidence in support of the positive findings of the Board that the criteria have been satisfied. Reference to the appropriate exhibits and documents that support the finding will also be made with respect to each individual criteria. In most instances, the requirements of 6.03 .15 and 6.04.15 are identical. In order to promote the efficiencies of the hearing and avoid duplication, our presentation by witnesses will address provisions by the site criteria in both sections as applicable, noting distinctions where appropriate. They felt rather than repeating the 20-some criteria that were identical, they could do this in that manner. Exhibits will also be introduced through those witnesses. Not each ofthe witnesses will have been the author. However, the authors of the exhibits are present in case cross-examination is desired. The witnesses at this time anticipated for the presentation in chiefwill be Randy Cloyd, Terrill Knight of Knight Planning Services, Michael Erion of Wright Water Engineers, Inc., Stan Bernstein of Stan Bernstein & Associates, and Jorge Gonzales from Johnson, Kunkel & Associates. They would like to begin with an overview of the project to be presented by Randy Cloyd, the General Manager of the project. Mr. Cloyd pointed out on a map the area knows as Frost Creek. It has 300 units in the development, plus 15 accessory units. It has an 18-hole private golf course and it is located up in the Brush Creek Valley. He pointed out adjacent properties on the map. It has a clubhouse facility, a maintenance facility and the Town of Eagle's water treatment plant. He pointed out the two locations of the two wastewater treatment plants and the administration offices. The way that the project will be designed for the water is the Town is going to service 200 of the units. They were designed based on two criteria. One, the agreement we have with the Town has a property line here that we could not exceed. So the units stayed below that property line except for a line to come up and to set up their water tank on that hill. The sewer has been designed so that everything is gravity flow. Gravity flows into the wastewater treatment plan. The portion that could not come to a lift station is forced back up into the wastewater treatment plant, and that is what they are here for on the 1041 in general overview. Mr. Fritze asked if the drawing was a blowup of a submitted exhibit. Mr. Ferguson answered yes. Commissioner Phillips stated this is not a court of law. Mr. Ferguson stated on the exhibits, we were going to propose they be introduced into evidence 3 10-17-2000 when they came up in support of a criteria. The first exhibit obviously is going to be the application. Also identified is the vicinity map that we are looking at up here and is a blowup of one of the designated exhibits which is located at Tab C of the permit application. What he will do is refer to the location of each exhibit, and related they were intending to introduce them at the end of each witness' testimony, unless the Board feels that some other procedure would be appropriate. Mr. Sands stated they would certainly be willing to stipulate that all of the applicant's exhibits as shown in the exhibit book come into evidence. Mr. Fritze stated he believes it is useful if someone later is reviewing the decision to what was being pointed to that. He recommended to the Board they accept the stipulation of the parties to go ahead and admit all the exhibits of both the applicant and the Town of Eagle. The Board concurred to accept all exhibits into the record. Chairman Stone stated if you have extra copies of the smaller versions please submit them to the Board so they will not have to be rifling through the books. Mr. Ferguson stated they have two books of exhibits. The first book is Exhibit A 1 which is the application. The second book has all of the other additional Exhibits. They are all marked accordingly. Chairman Stone stated if they have certain maps that they are going to use frequently that they be provided to the Board. Mr. Sands asked Mr. Cloyd, if Adam's Rib will be using Town water to service a portion ofthe area and a new water system to service the other portion of the area? Mr. Cloyd stated that was correct. Mr. Sands stated and under a 1983 agreement, the town has agreed to provide 200 EQR with taps. Mr. Cloyd stated that was correct. Mr. Sands stated he would like to show Mr. Cloyd a diagram and have him draw that portion of the development applied under the '83 agreement and what portion of the development was acquired after the '83 agreement the EQR does not apply to. Mr. Cloyd drew the lines. Mr. Sands stated and for the record, this is a blow up of a diagram contained in the applicant's application. He asked if it is correct, then, that everything in the lower half of the diagram will be served with town water and everything in the top part of the diagram will be served with the new Adam's Rib water plant? Mr. Cloyd stated the engineer took the 200 units for the Town to be served and his criteria was that they be in the land that was owned at 1983 or the agreement. The units that were left, the hundred, were then put on Adams Rib's water service. Commissioner Phillips asked who did that? Mr. Cloyd stated it was Jim Kunkel's instruction, our civil engineer, that he put the 200 water taps in the property that was zoned in 1983 and then used the best engineering that he could to make it work. Commissioner Phillips asked if there is a possibility that it would all be on the Eagle water system? On whose property is that water tank sitting? Mr. Cloyd stated they have two water tanks, and those two water tanks are sitting on the property that was acquired after the 1983 agreement. Commissioner Phillips asked could the Town serve with that water tank that close or would it be something that it could provide water to this entire subdivision? Mr. Cloyd answered yes. Mr. Sands asked if everything in this portion that is labeled 1983 going to be served with Town water and under their plan. Mr. Cloyd stated he does not know how many. There are 200 units, a hundred on the 1983 are being served by the Town of Eagle. I do not know ifthere is more than 200 units under that line or not. 4 10-17-2000 Mr. Sands showed a diagram that indicates that these were taken from the applicants application and this appears to be correct. This diagram is a smaller diagram. It has the lines in color, red and blue. Red meaning Town water lines, blue meaning the new Adam's Rib water plant lines, and ask if that appears to be accurate? Mr. Fritze stated the Board is at somewhat of a mystery of what is being looked at. Chairman Stone stated the Board needs to be able to see what they are discussing. Mr. Fritze stated again for the benefit ofthe transcript, is this identified as a particular exhibit number? Mr. Ferguson stated these are identified in attachment C of the application, and they are going to go into this under the first criteria, but obviously Mr. Sands has the opportunity for cross-examination here. But the references would be there are two maps under attachment C of Exhibit A-I. Mr. Sands asked Mr. Cloyd, does that appear to be accurate from your application? Mr. Cloyd stated the two water systems appear to be accurate. Mr. Sands asked could Mr. Cloyd then explain, since there are blue lines in the lower half, blue line being your new plant water lines, isn't it true that a portion ofthe original Adam's Rib land is going to be served by the new plant, together with the 200 EQRs from the town? Mr. Cloyd stated yes, a portion is. Mr. Sands asked if in fact, in some portions isn't it true that down in this area here, there are parallel lines and a person living across the street from another person will be on different water systems? Mr. Cloyd stated no, that is not true. Mr. Sands stated then why does it show Adam's Rib plant water lines running adjacent to town water lines? Mr. Cloyd stated the water line had to come from the water treatment plant up to service the project. It also had to run up to our water tank. And that's why they end up adjacent. Chairman Stone asked if this map that they are looking at, these red and blue lines, is this a general indication of where the water lines are running? Not necessarily what home site they are servicing? Mr. Cloyd stated that is correct. Mr. Sands asked but in here, for example, we only have a blue line; isn't that correct? Mr. Cloyd stated that was correct. Mr. Sands asked if all these lots are going to be served by the new plant? Mr. Cloyd stated that is correct. Mr. Sands stated then down here we have red and blue lines. Could you tell me who is going to serve these lots? Mr. Cloyd pointed out which lots are being served by the town and which are being served by Adam's Rib. Mr. Sands stated so it is fair to say that lots a few hundred feet away will be served by different water systems. Mr. Cloyd answered yes. Mr. Sands stated does that also mean lots served by the new water system will have non-potable irrigation, while the town-served lots will be able to irrigate with potable water? Mr. Cloyd stated the 1983 agreement provides that the town lots can be irrigated up to about 3,500 for potable water. The Adam's Rib lots will be not having potable water for irrigation. Mr. Sands stated so it's fair to say if! live up here, I better not drink out of my hose. But if! live down here, it's perfectly okay to drink out of my hose. Mr. Cloyd stated that is not correct, because they are allowed to have two-hose bins on the house that can serve up to 3500 feet on the Adam's Rib homes so you can drink out ofthe hose. Mr. Sands stated but there will also be some hoses that one can't drink out of if I own a lot being 5 10-17-2000 served by the new plant. Correct? Mr. Cloyd stated that is also the case for the Town of Eagle, because the lots are bigger than the amount of water that they will be able to irrigate, so they will also have well water irrigation on part of their lots. Mr. Sands asked ifthere will be different tap fee structures for a lot served off of town water and a lot served off of Adam's Rib water? Mr. Cloyd stated he does not know. Stan Bernstein is the one that has been looking at that and prepared the Metro districts. He has not really sat down and reviewed all of the detailed information within that service plan. Mr. Sands asked why did Adam's Rib acquire the additional land to what was owned in 1983? Mr. Cloyd stated that was before he came here. Chairman Stone stated in the interest of time and what he considers to be efficient due process, he believes they all agreed at the beginning that we would try to cross-examine and present on a point by point basis concerning the findings. Chairman Stone stated this line of questioning is really referring to a number of issues and a number of findings. It would be easier for the Board to understand, if we allow the applicant to go back to their presentation and then they can cross-examine on a finding by finding basis. Mr. Sands stated Mr. Cloyd was testifying about the 1983 agreement between Adam's Rib and the Town. Mr. Cloyd testified that under that agreement, Adam's Rib will be using 200 EQR to service this development. He asked if Adam's Rib agreed that the Town water plant should serve on a regional basis all of the lands of the Brush Creek valley below the site of that plant? Mr. Cloyd stated he was not here in 1983, and was not sure if that was agreed to or not agreed to. Mr. Ferguson stated he will start with section 6.03.15 A ofthe Eagle County Land Use Regulations. The criteria reads "New domestic water and sewage treatment systems shall be constructed in areas which will result in the proper utilization of existing treatment plants and the orderly development of domestic water and sewage treatment systems of communities within this County within the development area and source development area. Mr. Cloyd stated the Town of Eagle has refused to provide any additional service to this project. Therefore, there is no regional water treatment plant or wastewater treatment plant to service this project. As a result, the existing treatment plants cannot be utilized by this project and the new treatment systems are necessary and appropriate. Adam's Rib has requested from the town 115 additional taps for the government course property, together with service for the clubhouse and administration offices. It is within the discretion ofthe Town to determine whether it wishes to enter into an agreement for additional out oftown services. The Town is under no obligation to supply out of town services except pursuant to contract. There is no requirement that the town provide additional water service. Additionally, the Town's current policy on out oftown water services is required annexation when water service is requested. There are no regional water treatment systems that serve the area. The Adam's Rib augmentation plan calls for the wastewater treatment plant to be located in this area having both the source of the removal of water and return of wastewater close to each other is proper development of treatment plants, particularly in light of the need to protect the trees and in-stream flow. Mr. Ferguson stated the exhibits that support Mr. Cloyd's testimony are present in the following: 1041 permit application, but more specifically, No.1, the vicinity map that is located at Tab C in the 1041 permit application. No.2 is the preliminary site plan that's located at Tab C of the preliminary permit application. 3 is the preliminary clustered plan which is before you as Exhibit A-2. 4 is Holland & Hart letter signed by himself that was pertaining to a request for water service, water 22 rights associated with water services, and that's located in Tab E. 5 is a letter to the town requesting water service, and that's located in Tab E. 6 is the letter from Caloia and Houpt that denies water service. The water service request, and that's located at Tab E. 7 is the Adam's Rib further letter requesting water service, also located at Tab E. 8 is the water service and annexation agreement of 1983 between the 6 10-17-2000 parties located at Tab E. Nine is the decree in the water court case 81 C W 479 that was prosecuted in conjunction with the 1983 agreement which is located at Tab E. 10 is the separate application for water rights in case No. 99 C W 194, which is Exhibit A-lO. 11 is the application for water rights in case No. 99 C W 195, which is located at Exhibit A-II. Mr. Sands related Mr. Cloyd stated that the Town refused Adam's Rib water service, and he believes they also indicated wastewater service. Water service in addition to the 200 EQR. Mr. Ferguson indicated lots of Exhibits. He asked Mr. Cloyd to turn to Tab E in the application and show him exactly what letter says the Town has ever refused Adam's Rib water or wastewater service. For the record, Mr. Chairman, the Town denies that contention that they have denied them water and wastewater and that's why this is a very important matter. Chairman Stone asked if they were willing to give them water and wastewater service? Mr. Sands stated the Board will be hearing testimony on that, yes. Chairman Stone stated so yes, you will? Mr. Sands stated under appropriate conditions they are willing to supply water and wastewater service to this land area. Commissioner Phillips referred to an article in the paper which does say mayor Roxy Deane said Mr. Kummer could continue to move toward preliminary plan approval with the County and pursue a 1041 permit that would allow him to build his own water and wastewater treatment facilities. She stated again a surprise why we seem to have opposition to this or the Town has opposition to this when the Mayor herself has been quoted in the paper as saying that she felt that they should continue to pursue this 1041 at the County. Chairman Stone stated what he prefers to do is have Randy Cloyd answer the question so we don't keep jumping around. Mr. Cloyd stated in Tab E of the 1041 application is a letter from Caloia & Houpt PC, Attorneys at Law, to Arthur E. Ferguson and on the second page of item No.4 it says ARRA has requested 115 additional taps for the golf course property pursuant to paragraph 2 of the annexation agreement. It is within the discretion of the Town to determine whether it wishes to enter into an agreement for additional out of town services. The Town is under no obligation to supply out of town services except pursuant to contract. There is no requirement that the Town provide additional water services. Additionally, the Town's policy on out of town water service is required annexation. The water service is requested. Mr. Sands stated so it indicates that it's certainly discretionary with the Town as to whether they provide more than 200 EQR. It indicates that the Town policy is to require annex, saying as a condition of water service as permitted under state statute. But where does it say they won't do that? Mr. Cloyd stated after that letter they wrote again asking the Town to service the project, and they have not heard a reply. Mr. Sands asked so you don't have a yes, but you don't have a no, isn't that true? As to water service? Mr. Cloyd stated if the Town hasn't agreed to service water, that has to, in his mind, be a no. Mr. Sands asked now, your application also cites attachment K as a basis for this allegation that the Town has refused water and wastewater service. He asked what attachment K really says. Mr. Cloyd stated attachment Q was talking about a site application and engineering report. Mr. Sands stated but isn't that cited there for the proposition the Town won't serve? Mr. Cloyd stated no, it's talking about the wastewater treatment plant and how it would be set up. Mr. Sands stated then Mr. Cloyd referred to the Caloia letter and the unanswered Adam's Rib letter as to water. He asked Mr. Cloyd to shown him any document that indicated the Town ever refused serVIce. Mr. Cloyd stated the Town of Eagle has not provided that they would refuse it, but they have never said that they would service Adams Rib either. If they don't have a letter from the Town saying it 7 10-17-2000 will service the project, then he doesn't have anybody providing any service. Mr. Sands asked Mr. Cloyd to show what exhibit in the applicants application, in their exhibits, where the applicant has asked for wastewater service? Mr. Cloyd stated he has no letter. Mr. Sands stated so you have never asked for wastewater service and the Town has never said no, isn't that correct? Mr. Cloyd stated they asked for the water and didn't get it and the Town of Eagle's main sewer line is not up there. They went on to set up their own wastewater treatment plant. They have indicated that ifthe Town wanted to service the sewer, they would be willing to sit down and talk about the Town operating that wastewater treatment plant. Mr. Sands stated he is aware of the Eagle Ranch Subdivision. He stated the Town of Eagle required Eagle Ranch to install an oversize 21 inch sewer line to accommodate this development as well as the Ranch development. Mr. Sands stated ifhe understood the testimony correctly, Mr. Cloyd referred to the augmentation plan as to a reason why the wastewater treatment plant had to be at the location they have chosen. Mr. Cloyd stated their augmentation plan had to discharge, had to be at a certain location. Commissioner Gallagher stated his copy of the Exhibits is missing a page 30 and he would like to keep up with what's going on. The Board took a break and had copies run. Mr. Sands stated he was referring to the water augmentation decree in case No. 83 C W 479 that appears as Exhibit E-2 in the Town of Eagle's exhibit book. After having read that, isn't it true that in fact, this augmentation plan does not require discharges above the Love White Ditch, but rather, sets out several different alternatives, including use of the Town of Eagle's wastewater plant? Mr. Cloyd stated he does not know. He is not enough of an engineer to really even understand what it was telling him. I was advised by the attorney and by the water rights engineer that they had to divert the water above the love line and below the Town of Eagles intake. Mr. Sands read from the document; section 8.C.6, if the golf course residential component that's earlier defined as the 200 EQR, what was then being proposed, of this decree utilizes the Town of Eagle waste water treatment plant returned flow for in house difficult versions augmented under this decree shall be excluded from the quantity R in said for not and shall be calculated by multiplying the number of EQR on the golf course residential development, and then it continues. It says in the event the wastewater is treated at a central wastewater treatment plant separate from the central wastewater treatment plant which serves the east Brush Creek municipal component, then some additional requirements are imposed. So he submits that under this decree, one scenario it in fact provides for discharges above the Love White Ditch, but another scenario using the Town of Eagle's waste water plant did not require that discharge above the level of the Love White Ditch. Do you disagree with that? Mr. Cloyd stated the Town of Eagle has not said they would service the wastewater for this project. Therefore, they had to go by the other scenario, which means they had to locate it above the Love White and below the Town of Eagle's intake. Mr. Sands stated Mr. Cloyd previously indicated they never asked for that service. Mr. Cloyd stated they had asked for the water service. They denied that and they have not asked for the wastewater. Mr. Sands read from the applicants application as follows: "Additionally, according to the site application engineering report, attachment K, the Town of Eagle indicated in November 1999 that it would not commit to serving the wastewater treatment needs at the Frost Creek development." He stated he had asked earlier concerning attachment K, and Mr. Cloyd is indicating that this sentence was written in error of their application? Mr. Cloyd stated he cannot remember every document that's in the book word for word, but he 8 10-17-2000 has now pulled out section K and in a site application on page 4 in the second paragraph it says at the November 15, 1999 meeting, the Town represented and stated that they would not commit to serve the applicant for development. Mr. Sands asked who else was at that meeting besides Mr. Cloyd? Mr. Cloyd stated Michael Erion, Willie Powell, Ray Merry and the state engineer was there. Mr. Sands stated that's Jim Chubrillo. Mr. Ferguson stated he does have a question, is this Frost Creek property the subject of an annexation process before the Town of Eagle? Mr. Cloyd stated no, it is not. It was about two years ago. Mr. Ferguson asked what was the result ofthat process? Mr. Cloyd stated the Town board denied it. Mr. Ferguson stated therefore, what does the last sentence of paragraph 4 mean to you in terms of requesting water service and the Town's response? Mr. Cloyd stated that unless annexed, it would not service the area. Mr. Sands asked if Frost Creek was the subject of an annexation proceeding in Eagle? Mr. Cloyd stated it was in there. The annexation had to be delayed a year because of the timing, but they had the Ranch in there and then were working on a water agreement with the understanding that it would be annexed the following year. Mr. Sands stated they filed annexation applications for the Ranch, not Frost Creek. The Ranch was reviewed as to land use matters. Ultimately the land use plan was not agreed to by the Town board, and therefore, the Ranch was not annexed. No annex petitions were ever filed with the Town of Eagle for Frost Creek because there was no contiguity. Mr. Cloyd stated he did not remember ifthey filed it and then decided that they couldn't annex it at that point. Mr. Sands stated they had a problem in the state statute that related a municipality cannot annex more than 3 miles in that year. Mr. Cloyd stated that was correct. Mr. Sands stated so the only thing Adam's Rib was turned down on was the Ranch PUD and then the annexation because they conditioned that annexation on approval of the PUD. Frost Creek was never addressed in any motion of the Town board. Mr. Cloyd stated Frost Creek was discussed throughout the hearing. It was kind of all of a package. It was just working this thing out so that the legalities were handled correctly. Mr. Sands stated legalities are what this hearing is all about, and he thinks we need to be very accurate as to the legalities. And under the legalities as they referred to it, there was no application filed for Frost Creek to annex, no annexation petition. The Town never acted on any annexation for Frost Creek, isn't that the legality? Mr. Cloyd stated the Town did not act on the annexation of Frost Creek. Mr. Ferguson stated during that process was a water service agreement negotiated between the Town and Kummer Development Corporation for water service to the Frost Creek project subject to the annexation of the project when it was legally capable of being subdivided or annexed? Mr. Cloyd stated that was correct. Mr. Ferguson stated for purposes of moving forward consistently with section 6.03.15, for their information, 6.04.15 A and 6.03.15 A are different. They will address 6.04.15 A once they have completed 603. However, 6.03.15 B and 6.04.15 B are the same criteria. So they will address both. He stated the criterion is as follows: The proposed development does not conflict with an approved local master plan or other applicable regional, state, or federal land use water plan. He introduced Terrill Knight. Mr. Knight referred to Resolution No. 2000-057, approval of the Planned unit development sketch plan for Adam's Rib Frost Creek file No. PD S-00018, signed the 17th of April, 2000. He stated 9 10-17-2000 the Board found compatibility with the surrounding land uses and consistency with master plan. More specifically, the future land use map shows the area of this PUD as a future resort. The proposed PUD is also consistent with Eagle Area Community Plan, Eagle River Watershed Plan and Eagle County Trails Plan to the extent applicable under section 208. To the extent the PUD is deemed not consistent with any of those plans, such inconsistency is wanted to by change of circumstances since the adoption of those plans. Some of the circumstances are increased demand for residential property in the Eagle area. The purchase by Colorado State Parks ofa large portion of the property formerly included in the Adam's Rib projects. Larger planned unit development. The annexation and approval by the Town of Eagle and the development of a large planned unit development known as Eagle Ranch in the Brush Creek valley and the sketch plan approval of the Ranch development by the County. In dealing with both the Eagle area community plan and the Eagle Master Plan, the Eagle County Master Plan also changing the project from a resort destination area to a low density residential development with golf amenities was done in order to satisfy these plans. In addition, Master Plans are applied to property, they are specifically to be land use guides and not checklists as such. They were required to meet the general performance of all of these plans. This plan was developed based upon the adopted Master Plans and they are consistent with those. They have looked at this in total, and have presented in prior hearings conditions showing consistency with these aforementioned plans. This is a continuation of an established development trend to meet the needs of Eagle County existing and future residents and this project has received sketch plan approval by the Board of County Commissioners consistent with Eagle County Land Use Regulations. Mr. Ferguson stated the specific comparisons on a point by point, with respect to the plans, are set forth in Exhibit A-12, which has been identified as Master Plan comparisons prepared principally by Mr. Knight. The other Exhibits that support the testimony of Mr. Knight include the vicinity map which is here before them, the large vertical map, and it's located in the permit application at Tab C. Also, in the permit application at Tab C is the adjacent property owners map that indicates the other land uses in the area. The Holland & Hart letter regarding issues associated with the 208 plan is found as Exhibit A-15. Holland & Hart's memorandum pertaining to the Eagle River Watershed Plan may be found in Exhibit A-18. Water Wight Engineers Inc. letter regarding the 208 plan may be found at Exhibit A-16. And they would also like to incorporate by reference the Board of County Commissioners resolution 2000-0057. Chairman Stone asked Mr. Knight, by using the vicinity map, to explain or generally point to the area on that vicinity map where he talks about the resort. And just give a visual description of what was just said in relation to the Master Plan. Mr. Knight stated the Eagle County Master Plan and the Subarea Plan are inconsistent in some issues. It's their requirement to meet to the extent possible, all conditions of the Master Plans. However, there are some existing inconsistencies. This area he is pointing to is the area which has recently been transferred into a series of ownerships, but eventually into the state park. And that is consistent with certainly the Eagle County Master Plan. The property that we are discussing now, the Frost Creek property, is located here. Downstream and closer to Eagle from the designated resort area. He mentioned some of the changed conditions. This shows the Eagle Ranch recently approved property. Much of this is final platted. This area to the south is platted but not allotted as of yet. But this area has been approved by the Town of Eagle. This area is the plan that was referred to as The Ranch property previously approved as the sketch plan in the county. Mr. Sands asked Mr. Knight to point to what section in the Eagle County Land Use Regulations that allow changed circumstances to substitute for conformance with Master Plans when reviewing a 1041 application. All of those regulations are contained in the exhibit book, if they need to refer to them. Mr. Knight stated without reviewing all the wording of those documents, he was familiar with those. His statement was that we were consistent with those plans. However, the plans are in some instances internally inconsistent. 10 10-17-2000 Mr. Sands stated the plans are internally inconsistent. Let's go back to the original question, and ifhe needs to, take a moment to review the county's Land Use Regulations. His question is, are you aware of any Eagle County Land Use Regulation that allows changed circumstances to negate or substitute for the requirement that the 1041 application must conform with the Master Plans? Mr. Knight stated the plan must have general conformance with the Master Plans. The regulations call for periodic updates and changes in Master Plans as appropriate. Those changes have occurred physically, but the plan has not yet been changed. Mr. Sands asked ifhe would agree the plans have not been changed, and they need to follow the plans as they now exist? Mr. Knight stated as they are interpreted by our elected officials. Mr. Sands stated now, let's go on to the next matter Mr. Knight brought up, and that was he indicated these plans were internally inconsistent, correct? Mr. Knight answered yes. Mr. Sands asked Mr. Knight to turn to Exhibit E-3. Do you recognize what that is? Mr. Knight stated that's a resolution of the Eagle County Planning Commission, Resolution No. 96-01. Mr. Sands asked ifthat was the resolution ofthe Eagle County Planning Commission adopting the Eagle County Master Plan? Mr. Knight answered yes. Mr. Sands asked about Exhibit E-4. Mr. Knight stated that is a Resolution of the Eagle County Planning Commission Resolution No. 96-04 regarding adoption of the Eagle Area Community Plan. Mr. Sands asked about paragraphs 1 & 2 of the Eagle Area Community Plan. Isn't it true that this Resolution amends the County Master Plan to incorporate the Eagle Area Community Plan, that the County Master Plan is amended in full to include the community plan, therefore, if there is a contradiction, one muster in favor of the Eagle Area Community Plan because the Master Plan was amended to conform with the Eagle Area Community Plan? Mr. Ferguson asked if this is a question or if this is argument or a statement of position. He would like to hear the question. Mr. Sands stated he will more than stipulate that Mr. Knight is an expert in the field of land use planning. Therefore, in his professional judgment, isn't it true that Resolution 89604 amended the County Master Plan to include the Eagle Area Community Plan? Mr. Knight stated read as follows, "that the subarea Master Plan to be known as the Eagle Area Community Plan as set forth in Exhibit A attached hereto and incorporated herein by this reference is hereby adopted as the Master Plan, guide, and advisory tool for the area which is made part of and is described in the Eagle Area Community Plan." Mr. Sands asked Mr. Knight to read paragraph 2. Mr. Knight read, "that of the Eagle County Master Plan adopted by Resolution 96-01 is here by further amended to incorporate therein by this reference the Eagle County Community Plan described in Exhibit A attached hereto as if the same were set forth in full there." Mr. Sands stated after reading those, do you have any doubt in your professional judgment that the County Master Plan actually includes the Eagle Area Community Plan? Mr. Knight stated it includes that as a guide, yes. Mr. Sands stated he has described the Frost Creek PUD which will be serviced by the requested waste water systems that are the subject of this hearing, and he believes Mr. Knight has indicated with the vicinity map where that development is located. Is that proposed Frost Creek PUD a resort in your professional opinion? Mr. Knight stated no, it is not. 11 10-17-2000 Mr. Sands stated if not a resort, what does Mr. Knight consider it to be? Mr. Knight stated when he refers to resort, that's the upper area that is now a state park. This is a residential golf course area in the community, a recreational golf course community. Without belaboring things, he knows that is not the question, but all of those issues were taken into account with the plan, significant open space, significant recreation, all of those other issues. Mr. Sands stated so because of the design of the PUD that he worked on, he would definitely not consider this a resort, but rather, a recreation residential community? Mr. Knight stated that is correct. Mr. Sands stated and in fact, the application says that and the applicant has been rather consistent on that point throughout these proceedings isn't that true? Mr. Knight answered yes. Mr. Sands asked about the acre per unit density of the proposed Frost Creek development? Mr. Knight stated the total project area is 1,109 acres. Therefore 300 volume units, plus 15 accessory volume units. That makes an average of3.7 acres per unit. Commissioner Phillips asked if Mr. Knight was including those accessory units as separate units or will they be attached? Mr. Knight stated those are proposed to be or are required to be attached to other existing dwellings to become a primary and secondary unit not separate. Mr. Sands asked Mr. Knight if he would agree that the criteria says a proposed development shall not conflict with approved local Master Plan or other applicable regional, state, or federal land use or water plan, correct? Mr. Knight stated he wasn't looking directly at it, but believes that's right. Mr. Sands stated Mr. Knight indicated he was familiar with the County Master Plan. He asked Mr. Knight is he would agree that County Master Plan includes a Future Land Use Map commonly known as the FL UM? Mr. Knight stated yes. Mr. Sands asked if the map appears to be accurate? Mr. Knight stated it appears to be an accurate representation. Mr. Sands asked ifthe area initialed by Mr. Knight as the location of the Frost Creek development is outside the 10-year growth boundary? Mr. Knight stated using that one criteria of the 10-year line, it is. Mr. Sands asked if he would also agree that the Frost Creek development lies outside of the 20-year growth boundary seen on that map? Mr. Knight stated the one he sees on the map, yes. Mr. Sands asked how many miles would Frost Creek be from that 10-year growth boundary? Mr. Knight stated probably 3 miles or 2 and a half, two or three miles. Mr. Sands asked in his testimony before the Planning Commission, he described this proposed Frost Creek development to be rural residential average density. What did he mean by that? Mr. Knight stated the County regulations have a designation for rural and above two-acre minimum lot size and of course the plan calls for clustering, roughly 3 and a half acres in size, it's nearly double what is considered rural residential development by regulation. Mr. Sands stated so he was referring to a zoning classification or a residential zoning? Mr. Knight stated from the Land Use Regulations, yes. Mr. Sands asked about the area in which the proposed Frost Creek PUD is to be located, isn't it true that it's located in the rural category under the FLUM? Mr. Knight stated it appears so. Mr. Sands stated Mr. Knight testified Frost Creek is within the rural designation. Now, according to table 20, what is the allowed density for rural? Mr. Knight stated it consists of 3 zone districts, RRL and AR, and the expected dwelling unit 12 10-17-2000 density range, one dwelling unit per 35 or more acres. Mr. Sands stated the expected density range is one per 35 units, but theirs is one unit per 3.7 acres; is that correct? Mr. Knight stated their project is one unit per 3.7 acres. Mr. Sands stated it lies within an area that says it's supposed to be one dwelling unit per 35 or more acres according to table 20 ofthe FLUM isn't that correct? Mr. Knight stated to use this one category, yes, that's correct. Mr. Sands stated in using the density as shown on the FLUM would only allow for 31 homes; isn't that correct? Mr. Knight stated it does list this as a resort also. Mr. Sands stated you told me that your project isn't a resort. Mr. Knight stated we propose it not to be a resort. My point is, it says resort on the map. That infers a great deal of additional density. We have chosen not to do a resort. Mr. Sands stated isn't it true that the sketch plan that is referred to by that asterisk on the flume has been withdrawn? Mr. Knight stated he does not know. He believes it's been withdrawn or it expired. Mr. Sands asked what is Exhibit E-28? Mr. Knight stated a letter from Mr. Fred Kummer to Keith, and it says, "Please consider our existing sketch plan application withdrawn. Refund the unused balance of$52,887.50. Mr. Sands asked now that you have read that letter, wouldn't you agree that the sketch plan referred to in the asterisk on the FLUM was withdrawn by Mr. Kummer on June 6, 19977 Mr. Knight stated no he would not, because it's his belief that this was a recent application filed for a sketch plan on this particular property. The Master Plan designation for a resort in this area was based on a plan of 1983, I believe, so that this is not referring in my judgment to the same plan because I believe another plan was submitted and then withdrawn. Mr. Sands asked Mr. Knight to explain how you can say that when you have told me it lies miles beyond the 10-year growth boundary, two and a half to 3 miles beyond the 20-year growth boundary, and lies within an area that is recommended at one unit per 35 acres, nearly 10 times and your development is nearly 10 times that density? Mr. Knight stated he believes the plan is in very accurate conformance with the Eagle Area Community Plan. One must look at the plan in total. That's the purpose of the plan, to be as we quoted earlier, a general guide for development. That requires respecting wildlife habitats. We have done that. One of the ways we do that is by clustering. Certainly there are areas of higher density appeared areas of lower density. They have to provide water, they have to provide water quality, air quality. There are many issues in this plan, and it may be easy for someone to find one issue that they might disagree with. He finds this in conformance with the Eagle Area Community Plan. Mr. Sands stated so ifhe understands Mr. Knights testimony, he doesn't think the growth boundary's aspect ofthe Eagle Area Community Plan is a very important part ofthat plan? Mr. Knight stated it has already been passed over by other decisions by the Town of Eagle as well as Eagle County. It should be included as one aspect ofthe plan, not the only criterion for approval of the plan. Mr. Sands stated you don't believe the density requirement ofthe FLUM one unit per 35 acres is a very important part ofthat FLUM or Master Plan? Mr. Knight stated he believes it's consistent with the Land Use Regulations as is listed on this page, RR, A R, and R are all permissible within that. Additionally, they were proposing the planned unit development which is encouraged in order to meet the standards of the land and make a better plan. Staying away from wildlife areas, et cetera. So these are general guides and as a general guide, I believe we meet it entirely. Mr. Sands asked ifhe wrote the comparison of the applicants plan with the County Master Plan. 13 10-17-2000 Mr. Knight stated he participated in its writing. As the entire plan was done, it was a team effort. He did participate in this considerably. Mr. Sands stated nowhere in that document is the Eagle Area Community Plan even mentioned. Mr. Knight stated probably because they addressed each one independently. Mr. Sands stated the applicant did not discuss in their County Master Plan comparison the FL UM requirement of one per 35 acres. Mr. Knight stated they addressed it certainly by requesting a density that was appropriate for the proposed project, and again, meeting all of the conditions of the Master Plan. The myriad of issues, 8 listed in the Master Plan. He stated the guidance policies of which there are several, they have addressed by saying the Adam's Rib planned unit development is a project which complies with these policies and action steps and achieves the protect actives in the development section of the Eagle County Master Plan. The proposal is for a premier golf course located in the center of Eagle County surrounded by rural density residential development. Golf courses are a well recognized sustainable recreational use of a natural resource that contributes to the greater diversity of summer recreation uses in Eagle County. The land is ideally suited for the proposed uses. Located along Brush Creek road approximately 6 miles southeast of the Town of Eagle, the property is conveniently located relative to the commercial center of the Town of Eagle and the County regional airport. The property was approved by the Eagle County Planning Commission and Board of County Commissioners in 1982 for a similar use as part of the sketch plan for the Adam's Rib Recreational Area when it is also included development of east Brush Creek. The approval as is reflected in the Eagle County Future Land Use Map. Golf is an increasingly popular sport throughout the County. Mr. Sands stated he does not know if Mr. Knight needs to read the whole statement. His question is, how did the applicant address the density requirement ofthe FLUM in that document? Mr. Knight stated the density is one issue out of many. We addressed all issues. Density was appropriate for a residential golf development. The myriad of densities permitted as well as the encouragement to use planned unit developments as a mechanism to meet the rest of the goals in this. Mr. Sands stated on table 20, the left column under criteria, the second line, it says expected dwelling unit density range. Then one goes across in that table to rural, and it says one dwelling unit per 35 or more acres. You didn't think that was important enough to mention in your Master Plan comparison document, Exhibit A-12? Mr. Knight stated as one individual criterion, it is important. But no more important than any other individual criterion. Mr. Sands stated but why didn't you mention it along with the others? Mr. Knight stated again, we did not propose a resort, but under this plan calling for a resort PUD, it's to be established via the PUD plan. Mr. Sands stated so even though this isn't a resort, you consider resort PUD plan in table 20 as well. That's your answer? Mr. Knight stated that is a part of the total answer. He's trying to make a point that we could not let one can criterion stop the move forward. We look at all the criterion. In fact, we met the Eagle County staff to discuss the approach and the best way to approach it. So one single criterion did not dictate our plan. Mr. Sands stated under the same criteria, 6.04.15-1 B, it requires compliance not only with local Master Plans, but with state plans. And in the applicants submittal the applicant states that "It is expected that the 208 plan will be updated to include the Adam's Rib wastewater treatment plant and water treatment plant. On what basis is that statement made? Mr. Knight stated all 208 plans reflect current situations. These like a lot of other plans are continuing to be reviewed and amended, and certainly it isn't a requirement that the 208 plan be amended if development is approved in this area, it certainly requires that the plan be amended to meet the circumstances of the particular application, and that is a routine matter. The 208 plan does not set 14 10-17-2000 everything in tone through all time. It's to be made to adjust to needs of development. Mr. Sands asked if Mr. Knight was familiar with the 208 plan as it exists today? Mr. Knight stated not in detail, but in general, yes. Mr. Sands stated based on his general knowledge of the 208 plan, is there any designation in that 208 plan for a wastewater treatment plant in the Brush Creek valley? Mr. Knight stated he doesn't know when it was last amended, but with the original resort development a wastewater treatment plant in this area slightly upstream was designated. He didn't know if it's on there today or if it was removed or if it stayed. Mr. Sands stated he was referring to east Brush Creek and the old ski village treatment plant, correct? Mr. Knight stated that was correct. Mr. Sands questioned ifhe was not familiar with any wastewater treatment plant on the 208 plan in the vicinity of Frost Creek, are you? Mr. Knight stated no, an amendment would be required. Mr. Sands asked if he was aware if any amendment is currently pending to go with that 208 plan? Mr. Knight stated he does not know. It has to be done as part of the development review process. He does not know if it's been submitted yet. Perhaps there are others who could give them that answer. Mr. Sands stated but you would agree that as the 208 plan exists today, recognizing plans aren't set in stone and they can be amended but as the 208 plan exists today, the proposed wastewater treatment plant would not be in compliance with that plan, correct? Mr. Knight stated he believes that is correct. There are others in this room who can answer better than him, but he believes that to be the case. Chairman Stone ask Mr. Knight what's a resort, what's not a resort. And he said briefly something to the effect that a resort would anticipate higher density. Mr. Knight stated that is very often the case. And that is consistent with what was previously approved here, yes. Chairman Stone asked would you say that Frost Creek is drawn as a general down zoning could you say is in general terms like that from a resort? Mr. Knight stated he believes very definitely, in fact, a considerable down zoning because we went from a resort which didn't appear to be in the best interests of the community to a residential recreational oriented development. And we used our best judgment to do that. Commissioner Gallagher stated ifhe understood correctly, when we were reviewing table 20, he eluded to other permitted densities in the rural zone other than one per 35 acres. Would he expand on that. Mr. Knight stated there are three regular zone districts suggested as permissible in this area. The one rural residential is one unit per two acres. Resource limited and agricultural limited. He stated he was previously in the wrong category on that earlier statement, but it's those three categories are permitted. Two of those are much higher density than the one for 35. He is sure that's why they were put in there. The plan suggests flexibility. It suggests meeting as I say wildlife concerns, adjusting to stay off of ridge lines to using agricultural land. There are a myriad of issues, and the rural categories are listed here. However, rural residential is. Although we're not proposing subcutaneous leach fields, that's the general break off from the rural acre development. Commissioner Gallagher asked what other densities besides one dwelling per 35 acres were they suggesting might be permitted in the rural zone? Mr. Knight stated if we meet the other standards, clustering, et cetera, that's how they will meet it. The plan encouraging creative development planning, rather than creating a bunch of squares on a hill or steep land, some of the Master Plan as well as regulations asks us to do a much better job ofland use planning and density is only one of those issues. The general feeling is that the County encourages PUDs 15 10-17-2000 and to encourage that, they often give higher densities in return for greater amounts of open space, trail systems, and so forth. Now, that does not say that in the square you are mentioning. Commissioner Gallagher stated he does not see PUD there. On table 20 under the criteria of rural and under the existing season districts which are R, RR, and AR, are there densities other than one per 35 acres that apply? Mr. Montag stated the R designation is a 35 acre, the R designation is a two acre minimum number lot and the A R is a 10 acre. As previously indicated by Mr. Knight, the PUD is not designated within this table. He believes the concept was to allow for PUDs to provide some flexibility not only in the land uses that would be proposed, but also in the densities. And as long as the intent of the Master Plan was being met and the intent of the Future Land Use Map was being met, a PUD would be appropriate to allow for some of the amenities as indicated by Mr. Knight. Smaller lot sizes, additional open space, trail systems, protection of sensitive areas, et cetera. So he believes it's assumed or implied that PUD could be one of the zone districts that would be allowed within the Future Land Use Map. Mr. Sands stated Chairman Stone's question asked if this Frost Creek project might not be viewed as a rational down zoning from what was originally proposed. And Mr. Knight stated yes, he thought it was. Isn't it true, Mr. Knight, that originally, the golf course project that was proposed at the Frost Creek location contained only 140 unit, not 315 units you are now proposing? Isn't this really an up-zoning? Mr. Knight stated additional land was added to the parcel itself. I think Mr. Cloyd testified that additional property was added. Additional amenities were added and the plan was adjusted commensurate with that. Mr. Sands stated based on the earlier diagram of what was added, from here on this map, we heard earlier testimony that from this red line towards the top of this map was the newly acquired land. Would you agree that appears to be less than half of the overall size of this development? Mr. Knight stated something like that, yes. Mr. Sands stated although you have acquired -- you have less than doubled the size of the development, you have more than doubled the density; is that correct? Mr. Knight stated generally speaking, that's correct. A lot of things in the plan have changed and considerably improved over that time. Mr. Sands stated now, also in response to Commissioner Gallagher's question talked about densities and zoning, how is Frost Creek presently zoned? Mr. Knight answered Resource. Mr. Sands stated resource allows for one unit per 35 acres? Mr. Knight stated that's correct. Commissioner Phillips stated Mr. Sands didn't have a chance to respond to her question because she didn't have a chance to ask it yet. And they have dwelled for quite a while on the Master Plan and the community plan, resort, whether it's there, whether it's not there and every hearing that they have had, the Town of Eagle, and they have been there and made sure that they recognized that this was a resort and we don't want a resort, we want Eagle to remain just as it is without any resort. Now you are trying, and I think I might be confused, and maybe you can help me here, to convince us that it is a resort. And so they are saying it is not now. What do you want, us to approve this or look at? Because I have always heard that Eagle doesn't want a resort and now do you want us to consider this as a resort? Mr. Sands stated let him try to answer the question, Commissioner Phillips. The applicant throughout has stated Frost Creek is not a resort, and we don't necessarily disagree with that. The Ranch is a much different kind of project. It includes I believe four golf courses, an Adams Mark Hotel. To us that appears to be much more like a resort. Commissioner Phillips stated we are not looking at The Ranch. Mr. Sands stated we're not looking at The Ranch today, we're only looking at Frost Creek and we don't disagree with the applicant that this is not a resort. The position of the Town of Eagle, you are 16 10-17-2000 going to be hearing a lot about this when it's our turn to present witnesses, is that if this is not considered a resort, the asterisk on the FLUM does not apply. Even if it is considered a resort, the asterisk on the FLUM simply does not apply because it refers to a sketch plan that either lapsed or was withdrawn according to Mr. Knight's testimony, and because the Eagle Area Community Plan came after the FLUM, and the Master Plan amendment, the Master Plan was amended to include the Eagle Area Community Plan, and the Eagle Area Community Plan a map does not have an asterisk, the asterisk does not exist, is gone away, it does not apply. That's the position of the Town of Eagle. Chairman Stone stated they are through with this point. He asked you last question. How much land did Adam's Rib development company recently sell that became part of the state park just out of curiosity? How much land was there? Mr. Cloyd stated that was the east and west Brush Creek and it was 1,782 acres. Chairman Stone asked how many acres are with this Frost Creek? Mr. Cloyd stated 1,109 acres. Chairman Stone stated he is not familiar with the original plan for the resort up there, but how many dwelling units that were proposed although never approved, but he is curious as to how many units they were talking about for that east and west Brush Creek property? Mr. Cloyd stated it was around 3,400. Mr. Ferguson asked if Mr. Knight, had the opportunity to review the recent final plat approvals for the Eagle Ranch project within the Town of Eagle? Mr. Knight stated yes, he has. Mr. Ferguson asked do those approvals permit the development oflots outside ofthe lO-year growth line? Mr. Knight stated yes they do. Mr. Ferguson asked and do they also approve the development of roads outside of the 20-year development growth line? Mr. Knight stated yes they do. Mr. Ferguson asked and in reviewing both the Future Land Use Maps of the Eagle Area Community Plan and the Eagle County Master Plan, are the approvals of the Eagle Ranch project inconsistent with the densities that are designated on those two maps for this area? Mr. Knight stated yes. Mr. Ferguson stated and those are densities that are outside the 20-year growth line; is that correct? Mr. Knight answered yes. Mr. Ferguson asked what is the density outside the 20-year growth line for Eagle Ranch? Mr. Knight stated on the Future Land Use Map, residential density is one dwelling per 35 plus acres except for higher density zoning exists or open space and conservation techniques may yield a higher density. Mr. Sands asked if Mr. Knight was aware that Eagle Ranch has proposed a 20-year build out and that the Town of Eagle gave Eagle Ranch 20-year vested rights to complete that development within the 20-year growth boundary? Mr. Knight stated he was aware of an agreement in general but has not read it. Mr. Ferguson stated lets move on to section 6.03.15 C and section 6.04.15 C. Again, they are identical and the criteria is brief if the proposed development does not adversely affect either surface or subsurface water rights of upstream or downstream users and they would like Michael Erion of Wright Water Engineers to add some comments, on what his conclusions are in this regard. Michael Erion stated Section 6.03.15 C and 04.10 C are the same. Adam's Rib has a decreed water augmentation plan in case No. 81 C W 479 which covers the 200 units that are proposed to be served by the Town of Eagle. There are two pending water augmentation plans in water court. Case No. 99 C W 194, which addresses the hundred units and 15 caretaker units, and case No. 99 C W 195 which 17 10-17-2000 covers the water supply for the clubhouse, maintenance facility, administration building and other miscellaneous uses. The non-potable irrigation system for those areas that are not -- do not receive potable irrigation, the 200 units, those other areas non-potable irrigation will be served through use of existing decreed senior water rights. Mr. Ferguson asked if an irrigation plan has been developed for this project that takes into account the enhancement of stream flows in Brush Creek and that will prevent adverse impact on decreed senior water rights? Mr. Erion stated yes it has. Mr. Ferguson stated the exhibits that are supportive of Mr. Erion's testimony under this criteria are the 1983 agreement with the Town which is in Tab E of the permit application, the decree and water court case 81 C W 479 which happens to be at Tab E and is referred to in the Town of Eagle's exhibits. Exhibit 12. Application for water rights in case No. 99 C W 194 which is Exhibit A-I0, the application for water rights in case No. 99 C W 1935 which is A-II, and the Adam's Rib Frost Creek water rights tabulation put together by Wright Water Engineers at Exhibit A-18. Both of the cases that are applied for remain pending. The Colorado Water Conservation Board has agreed to a decree. The state engineer has additional comments to make, and the Town of Eagle is objecting. Mr. Sands asked ifMr. Erion was familiar with a 1999 water rights application filed by Adam's Rib in case No. 99 C W 242 in which Adam's Rib applied for a right to divert 6.5 CS from Brush Creek water under a right named in the Matheney Tabor ditch golf course enlargement? Mr. Erion stated he believes he is familiar with that. Mr. Sands asked him to describe his involvement in that case. Mr. Erion stated Wright Water Engineers prepared the water engineering aspects for that case. Mr. Sands asked if Mr. Erion and Wright Water Engineers prepared Exhibit A in that filing which depicted lands to be irrigated? Mr. Erion stated yes. Mr. Sands asked and does that map show that some planned irrigation occurs on new areas, not previously irrigated by historic agricultural rights? Mr. Erion stated he does not know without referring to a map of historically irrigated lands whether it does. Mr. Sands stated do you have documents with you that would help you answer that question? Mr. Erion stated no he does not. Mr. Sands stated this Exhibit A says Wright Water Engineers, Glenwood Springs Office indicates 540 acres will be irrigated, is that correct? Mr. Erion stated that's correct. The Exhibit indicates total amount of irrigated land within the shaded area will be 540 acres. Mr. Sands stated and you don't know ifthat 540 acres, the shaded land, includes new areas not historically irrigated? Mr. Fritze stated again, the Board does not know what you are looking at. They don't know what the relevance is of the line of testimony. He asked if there is a particular exhibit that can be looked at or one of the applicant's? Mr. Sands stated they will be linking this line of questioning up when they present testimony as to how it's relevant as to the specific criteria. The affecting surface or subsurface water rights on others. They believe the Town of Eagle's rights are going to be detrimentally affected and they will be present to give expert testimony on that area. Mr. Fritze stated he believes the whole idea of the Exhibits was so that the board would have copies of what everyone was referring to and questioning about. Also, he thinks it's probably going to be more efficient. They are free to call people that the applicant has called if they want to make points in the case. Mr. Sands stated actually, this witness did discuss the existing augmentation plan, the filings that 18 10-17-2000 are pending, the '99 case of which that is an exhibit to that is pending. So I think this was well within his direct testimony. Chairman Stone stated in the future he would ask one last time that if they have relevant documents that they provide them to the Board, because it's the Board that they are trying to convince, and if the board doesn't have this kind of information, it's very unconvincing. Mr. Sands stated he had not expected the board would need to see it and that's why they didn't have copies. Chairman Stone stated if you are referring to something and asking a witness to give you information about that, I think it's certainly of interest to me, you know, if you are trying to convince me. So I'm trying to help you out. Mr. Stands asked Mr. Erion, if he was generally familiar with the Matheney Tabor ditch? Mr. Erion answered yes. Mr. Sands stated and does this ditch historically convey water under more senior rights to the subject property? Mr. Erion answered that's correct. Mr. Sands asked can that ditch in its present location, present condition, divert and convey the historic and planned amount of water to the proposed golf course or will it require some improvement? Mr. Erion stated he has not walked the upper reaches of the Matheney at a bore ditch, and he doesn't know about its condition. Mr. Sands stated in order to do the irrigation that will be necessary for both the golf course and the lawn irrigation, is there going to be some additional pipeline work that will need to be done? Mr. Erion stated it is his understanding that the plan is to move the water rights of the Matheney Tabor D ditch and divert them at a lower location on the creek. Mr. Sands stated then maybe a new head gate then would also be needed? Mr. Erion stated possibly. Mr. Sands stated and again, what will this Matheney Tabor Ditch golf course enlargement water right be used for at Frost Creek? Mr. Erion asked if the enlargement ditch that they are speaking of if he could declare which enlargements he is are referring to? Mr. Sands stated again, their talking about the Matheney Tabor Ditch golf course enlargement water right. Mr. Erion stated from case 99 C W 263 or 222, something like that. Mr. Sands stated it is 242. Mr. Ferguson questioned the relevance of discussing the junior water right under 242 at this juncture. Mr. Sands stated these water rights they believe are going to be used to irrigate the lawns and golf course in Frost Creek, and they believe that the evidence is going to show that the lands that have not been historically irrigated will in fact be irrigated by these water rights, and that it is all very much relevant to how it is going to affect the Brush Creek stream and the rights on that stream. And these water rights were specifically mentioned in their application under 6.03.15, page 5, criteria C, the very criteria we have been talking about, it mentions 99 C W 242 and 99 C W 243. Mr. Ferguson stated that's fine. What we want to do is move ahead efficiently, whatever the Board thinks. We're prepared to have Mr. Erion answer all the questions on this that are asked. Mr. Sands stated they specifically say and he quotes, "Water for the additional 115 units and miscellaneous facilities will be provided through augmentation plans in case Nos. 99 C W 242,99 C W 243, attachment E court approval for the these augmentation plans is expected in late summer 2000. Now, he is asking him about those cases. Mr. Ferguson stated let him clarify so that we don't go down a confusing road. The plans for augmentation to support the units are 99 C W 195,99 C W 194. That was a print error. The cases 99 C 19 10-17-2000 W 242 and 243 refers specifically to junior water rights and ponds that will service irrigation. So to the extent there was confusion with respect to the case reference, hopefully that clarifies it so we don't have that going down the wrong road. Mr. Sands stated that's the reason he brought them up. They are in the application. That is in error. Mr. Ferguson answered yes. Mr. Sands stated when they were talking about the Matheney Tabor Ditch they said today that they thought a diversion point was going to be moved. That would require water court approval, would it not? Mr. Erion stated that is correct. Mr. Sands stated and they have not filed yet for that approval? Mr. Erion stated he does not believe that Adam's Rib has. Mr. Sands stated he indicated, in his testimony that the irrigation plan for Frost Creek took into account senior water rights, is that correct? Mr. Erion stated that is correct. Mr. Sands asked what irrigation plan they are specifically referring to? Mr. Erion stated Adam's Rib has developed an irrigation plan in conjunction with Wright Water Engineers. The plan was primarily developed by Carey Meyer, a former engineer employee with Adam's Rib. Mr. Sands stated can we rely on that plan as we proceed to discuss this project when it comes to irrigation? Mr. Erion answered yes. Mr. Sands asked in his experience with Colorado water rights, would residential lawn irrigation be considered a domestic use or an agricultural use? Mr. Erion stated domestic irrigation would be residential irrigation and would be considered irrigation use. Mr. Sands stated well, but domestic or agricultural? Mr. Erion stated lawn irrigation would be domestic irrigation. Mr. Sands stated lawn irrigation then is domestic. Where does golf course irrigation fall into that? Agricultural, domestic or something else? He is doing this in the context of when they speak of water rights, for example, which category they put golf course irrigation. Mr. Erion states he has seen golf course irrigation remain as a part of agricultural irrigation. Mr. Sands asked has he also seen it classified as domestic? Mr. Erion stated he does not believe he has. Mr. Sands stated does the Matheney Tabor Ditch enlargement water right for 6067895 cfs divert from Brush Creek above or below the Town's municipal diversion? Mr. Erion stated he believe it diverts above the Town's diversion. Mr. Sands stated he's been asking a lot of questions about Matheney Tabor ditch and is not sure the Board fully understood what all this relevance was, but it is above the Town's municipal water diversion, correct? Mr. Erion stated that's correct. Mr. Sands stated therefore, their difficult verse version, the Town's diversion could theoretically be affected by difficult versions from that Matheney Tabor Ditch? Mr. Erion stated no, that's incorrect. Mr. Sands stated why is that? Mr. Erion stated the Matheney Tabor golf course enlargement is junior to the Town's water rights. Mr. Sands asked if he could you direct me to what section of the 1041 permit it is that describes this new water system that will deliver up to 6.5 cfs of golf course and domestic lawn irrigation? 20 10-17-2000 Mr. Erion stated he was looking for references in the 1041 to the irrigation system, and under chapter 2, of the Adam's Rib met poll tan district No.1 and 2 there is a reference on page 9, paragraph part B, paragraph 1 B that does talk about irrigation water in that section. Mr. Sands stated would that include the 6.5 cfs from. Matheney Tabor ditch, right? Mr. Erion stated that would be correct. Mr. Ferguson stated they are moving on to section 6.03.15 D and section 6.04.15 D which again are exactly the same. And this applies to both the extension of water service from the Town and the new facility. And the criteria reads as follows: Adequate water supplies as determined by the Colorado Department of Health and environment available for efficient operational needs. And Michael Erion will present evidence on this matter. The Town of Eagle has a water treatment plant just upstream from the proposed Adam's Rib water treatment plant. And that facility meets the Colorado Department of Public Health and Environment water supply criteria and application of the criteria used by the state to determine the adequacy of water supplies for the project confirms that there are such adequate water supplies for the proposed Frost Creek water treatment plant project. In support ofthis, the satisfaction of this criteria, they will refer to the following exhibits. Again, the 1983 agreement with the Town which is at Tab E ofthe permit application, the decree in water court case No.8 C W 479 which is at Tab E of the permit application. The application for water rights in cases 99 C W 194 and 194 in Exhibits 10 and 11, and the Frost Creek water rights which were tabulated by Wright Water Engineers at Exhibit A-18, and in addition, we would refer to the Exhibit E, appendix K ofthe permit application, the Town of Eagle water system Master Plan November 1996. Commissioner Gallagher questioned 99 C W cases 94 and 95, have those been finished in water court? Mr. Ferguson answered no. They are pending. They have been referred to the water court, and there is a water status conference or water court status conference scheduled for November 16, and a trial setting conference scheduled also on November 16. Commissioner Gallagher asked ifthe Town of Eagle is the only objector? Mr. Ferguson answered no. There are the following objectors: The Colorado River Water Conservation District and they object because they named the reservoir as a source of augmentation. They have since negotiated and are circulating for execution the agreement for Eagle Park Reservoir water and Wolf Creek Mountain water as augmentation for those plans and the river district, once they have that contract executed, will withdraw from the case. The Colorado Water Conservation Board which is the owner ofthe in stream flow rights objected to the case. The Attorney General has advised him that the latest proposed decree is acceptable to the Water Conservation Board. And protects the in stream flow rights and therefore they have indicated they are not participating further. The state engineer and division engineers have prepared comments and the state engineer's office was trying to get back its latest round of comments to me. The Town of Eagle has indicated that at least at this stage that they were going to proceed to trial on that. And that's in both cases. Mr. Ferguson stated they are at Section 6.03.15 E and section 6.04.15 E which again are identical. And the criteria states, existing domestic water treatment systems servicing the area must be at or near operational capacity. He would like to call a Randy Cloyd to provide testimony with respect to this criteria. Mr. Cloyd stated there is no existing domestic water treatment serving the area with the exception of the limited service for the 200 taps to be provided by the Town of Eagle. Town has the capacity to meet the 200 taps and have agreed to it. But they have not agreed to service the other units. Mr. Ferguson stated the exhibits that support this testimony again are the 1983 agreement with the Town at Tab E of the application, the vicinity map at Tab C of the application which is also the big vertical map behind the growth line map. The preliminary site plan which is at Tab C and the permit application itself will note in the introduction is an assessment of the capacity of existing water treatment facility for the Town, and the letters between Holland & Hart and Caloia and Houpt reflecting the 21 10-17-2000 willingness of the Town to service the remaining units and components of the project beyond the 200 units. Mr. Sands stated in reading from that regulation and it says existing domestic water treatment systems serving the area must be at or near operational capacity. And you would agree, would you not, that Eagle's system is not near operational capacity? Mr. Cloyd stated he is not an engineer to make a judgment like that. He has been told that may be the case. Mr. Sands stated the application would seem to acknowledge that the Eagle system is not near operational capacity. Isn't that true? Mr. Cloyd stated that's true. Mr. Sands asked if Mr. Cloyd could tell him anywhere in these 1040 regulations that says under that scenario, this Board can ignore criteria E? Mr. Cloyd stated the criteria says servicing the area if Eagle says it will not service, then there is no domestic water treatment system servicing the area. Mr. Ferguson stated the next criterion is section 6.03.15 F and 6.04.15 F, again are identical. It states, existing domestic sewage treatment facilities servicing the area must be at or greater than 80 percent of operational capacity. Mr. Cloyd stated there is no existing sewer trunk line up to this project. And there is the Town of Eagle has not agreed to service the sewer for this, and their sewer trunk line is not up by this project, therefore, there is no sewer treatment plan serving this area. Mr. Ferguson stated exhibits that support Mr. Cloyd's testimony would be one, the vicinity map at Tab C, two, the preliminary site plan at Tab C. Three, the 1983 annexation agreement, 4, the preliminary sewer layout plans which are contained at Exhibit A-4. They have nothing further on this. Mr. Sands asked if Exhibit A4 were the preliminary sewer plans? Mr. Ferguson stated yes. Mr. Sands asked ifthe applicant included anywhere in the application detailed plans and specifications for a treatment system? Mr. Cloyd stated in their 1041, site application, they have done some preliminary discussion, but have not done the detailed construction plan. This is basically showing where the layout will be and kind of how the system will work, but they are not detailed. Mr. Sands stated he found a different little drawing. Not only is it put on the piece of paper differently, it would seem to show a totally different kind of treatment plant. And then at the end of that one, it says haul to nearby wastewater treatment plant for additional solid treatment. That's at the very end of the flow chart. He asked if the applicant was planning to haul it to the Eagle plant? Mr. Ferguson stated they agree capacity is important, but it's a question of whether it's existing domestic sewage treatment facilities servicing the area. They're not questioning the capacity of the treatment plant that Eagle runs. He questions Mr. Sands stating there is no service in this area by that plant or any other plant. Mr. Sands stated the applicant is not contesting the fact that Eagle does have wastewater treatment capacity. They are only questioning whether they service this area. Mr. Ferguson stated they are not questioning it. The testimony was it does not service this area. Mr. Sands asked if the applicant is saying capacity is an issue they need to have further discussion about? Mr. Ferguson stated the Eagle Exhibits E-21, 22, and 23 relating to the Town of Eagle water treatment facility would indicate that the capacity is not at 80 percent or greater. They are not going to dispute that. But the testimony is here what whatever the capacity is, it doesn't serve this area. Mr. Sands questioned section 60306, subsection 5 of the County Regulations. It requires that an application contain detailed engineering plans and specifications of the proposal. Another section requires detailed engineering plans and specifications of the proposed construction or structures. That's 22 10-17-2000 found in subsection 5-1. He asked when would be the appropriate time to get into whether or not this application even contains detailed financing specifications? Mr. Fritze stated the completeness hearing has already been held. This application has been determined to be complete. So he believes the things that Mr. Sands is questioning are submission requirements that would have been at that completeness hearing or if there was disagreement when of the decision of the Board to seek some review of that determination. So that stage has passed. Mr. Sands stated there is a section in the County Land Use Regulations that provides the Board can continue a hearing or deny the permit even after that completeness portion has occurred, as he read it. Mr. Fritze stated they need to argue at the correct hearing. If you don't believe there is sufficient information to decide one of the criteria in the application, they can present evidence to that in their case and the Board will deal with it. Mr. Sands stated then just to be sure, Mr. Cloyd, so we can do that as part oftheir case, those schematics which he presented, are the only documents in the application as to the design of the treatment plant itself? Mr. Cloyd answered yes. Mr. Sands stated is it fair to assume that he is not going to go to bid on that schematic, there is much more design work to be done? Mr. Cloyd stated they are not going to go to bid on that. They will have to get a building permit and do more design detail for construction drawings. Mr. Fritze stated if a permit were issued and the application whatever was designed would have to comply with what's been submitted. Mr. Sands stated Mr. Ferguson indicated the real question before this Board is whether the Eagle wastewater treatment plant servicing the area of Frost Creek. In the application the applicant again refers to Exhibit K as a basis for the fact that Eagle could commit to serving. There has been a lot of testimony on that. It goes on to say the facility is located 7.5 miles downstream from Frost Creek and in several other places they mention it would require constructing a sewer main, distribution main of about 5 miles, is that correct? Mr. Cloys answered yes. Mr. Sands stated the applicant also has had a Ranch application pending before this Board, correct? Mr. Cloyd answered yes, they have a Ranch application before the Board. Mr. Sands stated and ultimately this permit authority approves The Ranch land development and approves The Ranch 1041 permit, then the extension line will be much shorter than that, won't it? Mr. Ferguson objected to this line of questioning. Mr. Sands stated for the record, he disagrees. It's not conjecture. A 1041 application for The Ranch has been filed with this body. This body has already set hearing dates for October 31 and November 1 on that permit. They have scheduled a decision in this matter the day before you are taking those hearings. It is the position of the Town of Eagle that it's far more than conjecture, that the applicant intends to build and has filed applications for construction of those systems. Chairman Stone stated what he is saying is conjecture in suggesting a number of what ifs and will be's and could be's. What he hopes to base a decision on is what is in relation to Frost Creek, because who knows what will ever happen on The Ranch PUD and once again, that is not being considered today. Mr. Sands stated over six times, perhaps a dozen times in the applicant's own application, own submittal in this Frost Creek proceeding, The Ranch is discussed. Connections with The Ranch are discussed. And they think it is absolutely necessary for them to bring The Ranch into it just as the applicant themselves brought it into it. And we are prepared to offer the testimony of Brian Gidlow dealing with civil engineering issues and Scott Fifer dealing with water issues as to why The Ranch, 23 10-17-2000 although this is not a Ranch 1041 hearing, why The Ranch project is a part to a degree of this Frost Creek hearing. Mr. Ferguson stated the references to The Ranch are no different than references to any other 7 properties that might be served by these facilities, and accordingly, any other project that would be has the positive essential for being serviced by these facilities has to undergo its own 1041, just like they are undergoing a 1041 hearing here for the extension ofthe Town's existing treatment plant to service this area. Accordingly, the references to The Ranch are primarily in conjunction with those as being another property that might be considered under its own 1041, which is the subject and they would therefore oppose this motion and to the extent that there were any references, it was to comply with the information that's required under the application and in no way was an effort to bring the two projects together. Mr. Sands stated that is exactly their point. Mr. Ferguson stated there are other undeveloped properties that are upstream of the location of this facility that are capable of being served on a regional basis, and that's one of the requirements of the site application to investigate. None of those properties have a 1041 application pending. We cannot be forced to consolidate consideration of service to those properties in this hearing. They would be subject to their own hearing. Mr. Fritze recommended the Board deny the motion as untimely. Mr. Sands stated for purposes of preservation ofthe record on appeal, may they present an offer of proof? Mr. Fritze stated this is not a court. Mr. Sands stated they expect this record to go to court. Commissioner Phillips asked if Mr. Sands was telling the Board they intend to take this to court, regardless of the decision. Mr. Sands stated based on a number of factors, there is no decision rendered, but I'm saying there is substantial likelihood that whether a decision is pro or con it will end up in Court. Commissioner Phillips stated that was unfortunate. Chairman Stone stated the Board did make a decision to not consolidate the hearings. Mr Sands stated just to clarify then, the tape from September 18 will be made a part of this record and are they are denying him a request to make an offer of proof for purposes ofthe appeal? Mr. Fritze stated his recommendation to the Board is that they take the question of the offer of proof under advisement and they'll render a decision on that later in the hearing perhaps taking a written offer of proof. Commissioner Phillips stated the Board did approve a change in witnesses. She believes he was aware of this separate hearing. Mr. Sands stated their grounds are not lack of knowledge. They are well aware that there are two permits and there have been separate hearing days scheduled. What they are saying is, chapter 6 of the County regulations, the 1041 regulations, allows the Board to consolidate. It's not mandatory, but it allows them to consolidate different permits, permit applications, for purposes of hearing only. The permits themselves aren't consolidated, but the hearing is, and because they believe The Ranch project is so tied into the Frost Creek project, that they can only understand the cumulative impact of both projects when it comes to the water rights cumulative impacts, when it comes to the civil engineering implications, when it comes to changing from a batch reactor treatment plant to an irrelevant ration plant. Commissioner Gallagher asked is it appropriate for the party to discuss, present information concerning The Ranch in the same light that the applicant has included in this application, or is it totally to be not mentioned? Mr. Fritze stated guess he's not as familiar with the application as the parties to this hearing. He believes what the Chairman has ruled is that to the degree it's been going into, it is not relevant. To 24 10-17-2000 some lesser degree they can try, but there is a separate hearing date set and if that hearing goes forward, The Ranch will be considered in great detail, and then if there are effects that come from adding The Ranch to this, they can be discussed as they relate to this permit. It would be speculation to consider it in this hearing the effect of some project that's on down the line, while if this is approved, The Ranch might be something that would be appropriate. Mr. Sands stated he is holding the Frost Creek application. There are a lot of yellow tabs there. That's where The Ranch is mentioned in the Frost Creek application. Mr. Ferguson stated they are at Section 60315 G and section 6.04.15 G which again are exactly the same, and the criteria provides the scope and nature of the proposed development will not compete with existing water and sewage services or create duplicate services. Mr. Cloyd stated there are no sewage treatment services or water treatment services servicing the area. The Town would be servicing 200 taps, but the service will not be duplicate, since they will not be servicing anything else in the area. Mr. Ferguson stated the exhibits that pertain to this are, one, the 1983 agreement between the Town and the applicant, which is Tab E. The vicinity map, which is Tab C. The preliminary site plan which is Tab C. He stated he would like to specifically direct the Board's attention to Exhibit E-23, which is the Town of Eagle Exhibit, and figure 1-1 of the Town of Eagle facility plan. This is the final draft of the 201 facility plan for the Town of Eagle with respect to the wastewater treatment facility. Figure 1 shows and describes the planning area for the facilities and for the Town's wastewater treatment facilities, and you will note that the planning area does not include the Frost Creek property. Mr. Sands stated as you indicated earlier this morning the diagram was an accurate of both the Eagle and private water systems. The blue representing the private system, the red representing the Town system, correct? Mr. Cloys stated that was correct. Mr. Sands stated and even though we see red lines running immediately adjacent to blue lines, you don't consider that duplicate, correct? Mr. Cloyd stated the Town has not agreed to service any more than the 200 units, so there is no servIce. Mr. Sands stated that's all based on the Caloia letter? Mr. Cloyd stated that's based on that the Town has not agreed to service this project. Mr. Sands asked if they base that statement on the letter from Ms. Caloia to Adams Rib? Mr. Cloyd stated there were those exhibits that we have talked about, but he has stated earlier that the Town has not agreed to service this project. Mr. Sands asked ifthere is anything else that they can think ofthat they base that statement on? Mr. Cloyd stated they have talked about the exhibits and Weaver presented the exhibit. Mr. Sands stated only the Exhibits the attorney just referenced would be what they base their statement on. That the Town has not agreed to service this project. Is there anything else they wish to add? Mr. Cloyd stated the Town has not represented they would service this project. Mr. Sands stated they are servicing this project. Every place you see a red water line, isn't that correct? Mr. Cloyd stated the Town has not said that they would service the places where the blue lines are. Mr. Sands stated so criteria G says the scope and nature of the proposed development will not compete with existing water and sewer service or create duplicate services Mr. Cloyd stated the Town has said that they would not service the blue area. Therefore, there is no duplicate service. Mr. Sands stated earlier they asked about irrigation. If he understands the answer correctly, if he's on the Town system, he will be irrigating a portion of his lot with Town water, but ifhis lot is too 25 10-17-2000 big, he'd water part of it with non-potable Adam's Rib water, is that correct? Mr. Cloyd stated yes, there are some lots in which that will happen. Mr. Sands stated he has indicated that according to this diagram showing the two systems, some lots in the immediate vicinity of each other will be on different systems. Mr. Cloyd stated he has testified on that earlier. Mr. Sands asked if it is his understanding that under that 208 plan, the Town of Eagle is the designated management agency for wastewater in Brush Creek valley? Mr. Cloyd stated he does not know the answer to that question. Mr. Ferguson stated relative to Exhibit A-14, a letter that addresses the management issues associated with the 208 plan and the Town of Eagle. In the event the Town wants to operate and manage this system, the applicant has indicated that it is welcome to do so. So consolidation is an issue that's up to the Town and it is not an issue they have agreed to. Section 6.03.15 Hand 6.04.15 H, again are the same and he reminded they are both addressing the difference between 04 and 04 in the development of new systems and towards the extension of an existing system. The provision is the age of existing water and sewage systems, operational efficiencies, state of repair, a level of treatment is such that replacement is warranted. Mr. Cloyd stated there is no duplication of services because the Town of Eagle is not servicing this area except for the 200 units. So there is no duplication of services because the Town of Eagle has not agreed to service this area. Mr. Ferguson stated the exhibits that are supportive of this are number one, again, the 1983 agreement between the parties at Tab E, the vicinity map at Tab C, the preliminary site plan at Tab C, and again, the 201 facility plan which is at Exhibit E-23. Mr. Sands stated he is a little confused. The testimony dealt with duplication just now. That's G. H deals with the age of existing sewer and water systems, operational efficiencies, state of repair, and level of treatment such that replacement is warranted. Mr. Cloyd stated there are no water or sewage treatment systems serving that area, with the exception of the limited service for sewer and water taps provided by the Town which will utilize the existing plan and not duplicate service. Mr. Sands asked ifMr. Cloyd would agree that Eagle does own and operate a water system and a wastewater system that is capable of serving the area, correct? Mr. Cloyd stated Eagle owns a water treatment plant that can service the area. Mr. Sands asked if the water treatment plant is essentially adjacent to Frost Creek, is it not? Mr. Cloyd stated the water treatment plan is in fact adjacent to Frost Creek. Mr. Sands asked if that water treatment plant operates with efficiencies? Mr. Cloyd stated he was not an engineer to offer an opinion on that. Mr. Sands asked about the state of repair and level of treatment? Mr. Cloyd stated the Eagle water treatment plant will not require replacement, but they will not service the project either. Mr. Sands asked if Mr. Cloyd would agree the water plant and sewage plant need not be replaced to service this Frost Creek project. Mr. Cloyd stated he would agree they don't have to be replaced to service this Frost Creek project. Mr. Ferguson continued with Section 60315 I and 6.04.15 I, which are the same, and they provide, area and community development and development and population trends demonstrating clearly a need for such development. He will have Mr. Knight provide testimony with respect to these. Mr. Knight stated briefly concerning the population trends, we have seen an increase that we have been advised is the true rate of population increase, which is about 5.7 percent, rather than what were projected in some other cases of around 3 percent. He believes in addition to the population trends, there are population numbers and there are types of population needs, housing needs. The Eagle area has 26 10-17-2000 numerous housing opportunities in the smaller lot and in some cases extremely small urban lots, and there is an obvious need for larger and particularly golf course related lots, and that has been the focus as we have said of this proposal for the Frost Creek golf course recreational development. This is a continuation of an established development trend to meet the needs of Eagle County and this project has received sketch plan approval by the Board of County Commissioners consistent with Eagle County Land Use Regulations. Mr. Ferguson stated they would offer evidentiary support with respect to Exhibit A-17, which is population characteristics technical report, together with the Resolution of the Board of County Commissioners, number 2000-0057. Mr. Sands stated in looking at the criteria, it reads area and community development population trends demonstrate clearly a need for this development. In the submittal, page 8, 60315, they reference a lot of census data in pointing out that Eagle continues to grow at 5.7 percent and it's projected to do so from '95 to 2010. And they base that apparently on census data, is that correct? Mr. Knight stated their conclusion was based on advice by other consultants, as well as the census. Mr. Sands asked what other consultants? Mr. Knight stated Parson Engineering Science. Mr. Sands asked if Parsons Engineering did a marketing feasibility study to determine clearly the need for this kind of development? Mr. Knight stated they did an analysis of trend in the area, so he could not answer the specific method they used to develop the numbers. Mr. Sands asked if there is a person from Parsons Engineering here who can? Mr. Knight stated Bruce Snyder of Parsons Engineering is present. Mr. Sands stated in looking at their submittal on page 8 they indicate that ofthe Frost Creek housing, they expected to house 243 permanent residents and 653 additional seasonal residents. Based on that language and other information contained in this submittal, isn't it true that two-thirds of the homes are expected to be second homes, vacation homes, and not homes for permanent residence? Mr. Knight stated yes, that's accurate. They are projecting that there would be a significant number of second homes, as is the common trend throughout the Eagle River Valley. Mr. Sands asked isn't it true that census data only addresses residents, permanent residents and when we talk about growth rates based on that census data, we're talking about permanent residents, not vacationers, not people who come to visit second homes? Mr. Knight stated they do count the total number of homes as well as population. Mr. Sands stated but the information referenced for submittal was population, not homes. Mr. Knight stated full-time permanent is one category. Second home population is a second category . Mr. Sands stated when we're talking about Eagle County being the second fastest growing County in population, County Master Plan indicates a growth rate of 28 percent, and so on and so, ending with a projected growth rate of 5.7 percent, that's dealing with a permanent population, isn't that true? Mr. Knight stated he believes that's correct. For that portion ofthe study, yes. Mr. Sands stated so all of this information dealing with census data that you quoted in your submittal on page 8 only has relevance to the one-third of the homes that are going to be owner occupied. Mr. Knight stated it is his understanding that the total number of homes which included second homes were included in projections, but this projection is for permanent. Mr. Sands asked if this was the only census information included in the submittal there on pages 7 and 8? Mr. Knight stated it's been a while, but probably. It does discuss housing vacancy rates as well, 27 10-17-2000 population trends and shifting towards the western part of the valley, and then the included paragraph is correct, it does distinguish between permanent residents and additional seasonal residents. Mr. Sands stated when he said Adam's Rib concluded their study there was an obvious need for large golf course lots, if you paraphrased the testimony correctly. Were they considering the fact that the Town of Eagle has approved 550 large golf course lots at Eagle Ranch? Mr. Knight stated that was included, yes. Mr. Sands stated so even with an Arnold Palmer golf course, 550 lots around that golf course, and approximately another 600 traditional homes nearby, they still conclude that there is need for a golf course development such as this? Mr. Knight stated yes. Mr. Sands asked if they have done any sort of marketing feasibility study to determine that? Mr. Knight answered yes. Mr. Sands asked if that would be the Parsons study and what else have they done? Mr. Knight stated they have looked at the real estate market, real estate trends, analyzed market trends, costs, cost of roads, sales of other projects. They indeed focused on trends in the community. Mr. Sands asked if there was any information in their application or the exhibits they have introduced that have been admitted that discussed that feasibility other than the Parsons study? Mr. Knight stated he would say no, and it's not a requirement of the application. Their required to discuss development trends. Private real estate information is not required and in fact, it's probably never required. Mr. Sands stated what is required is that whatever information they do present clearly demonstrate a need for the development, subsection 9. Mr. Knight stated yes, they have done that. Mr. Ferguson stated they're moving on to section 6.03.15 J and section 6.04.15 J and again, they are exactly the same, and they provide that existing facilities cannot be upgraded nor expanded to meet waste discharge permit conditions of the water quality control Commission. And they have Mr. Cloyd providing information with respect to this. Mr. Cloyd stated the Town of Eagle operates a wastewater treatment facility that is located within the Town approximately 7 miles from the project site. There are no sewer lines that extend up Brush Creek to this area. In addition, this project requires the discharge of effluent from the project to be made in the upper Brush Creek basin. The Town of Eagle previously approved the decree for the primary plan for augmentation for this project in case No. 81 C W 479. Mr. Ferguson stated the exhibits that are supportive of this are the 1983 annexation and water agreement that they referred to before at Tab E. The decree in water court case 81 C W 479 at Tab C. The application for water rights in case No. 99 C W 194 in Exhibit A-I 0 and application for water rights 99 C W 195 A 11 and the testimony of Mr. Willie Powell in Exhibit E-35 which was at the P & Z hearing and that testimony, meaning the Town's policy has been stated before. If they have annexation or it's a pre-annexation agreement, it doesn't necessarily have to be annexation, but annexation or pre- annexation agreement and really more importantly, if they have a development plan that meets the goals, policies and plans of the Town, then they are going to service it with water and wastewater. They don't believe this project meets those goals. Mr. Ferguson stated Section 6.03.15 K, section 6.04.15 K are again the same. Appropriate easements can be obtained for any associated collector or distribution system that will serve existing and proposed needs. Mr. Cloyd is going to present testimony in this regard. Mr. Cloyd stated the developer will dedicate appropriate easements since the locations for the facilities are all on the project site. The Town of Eagle water treatment plant is located on adjacent property, therefore no additional easements are necessary. Mr. Ferguson stated the exhibits that are supportive of this testimony are, one, the preliminary site plan contained at Tab E, the preliminary illustrative plan at Tab C, the preliminary water layout 28 10-17-2000 plans at Exhibit A-13 and A-3 and preliminary sewer layout plan at A-4. Mr. Ferguson stated section 6.03.15 L and section 6.04.15 L are again the same. The benefits of the proposed development outweigh the losses of any natural resources or agricultural lands rendered unavailable as a result of the proposed development. Mr. Knight stated the loss of agricultural lands is outweighed by the improved benefits that will accrue to the Brush Creek corridor. The benefits include the removal of cattle that will allow the improvement and reestablishment of the riparian wetlands and other native vegetation along Brush Creek through the project area and will enhance wildlife habitat in the open spaces due to lack of competition. There are no losses to any natural resources on project lands. The plan itself as well as the studies indicate that the property was used entirely for agriculture and historically for decades vegetation, natural vegetation was removed. The area was altered. This plan actually has approximately half of the property back to open space, which is not affected by the agricultural lands as they have testified earlier, the revegetation of disturbed areas, particularly along the creeks, and Riparian areas will substantially enhance the area. The amount of irrigated land that is in some sort of altered state to the extent possible will be restored to that more natural condition. They have spoken previously about the area of Brush Creek itself, and its semi-disturbed state and their plans to enhance that area. Mr. Ferguson stated with respect to supporting exhibits, there are a number of documents in Exhibit A-I, the permit application, that support this testimony. Specifically including the systems report by Alan Crockett at Tab I and the Riparian report also at Tab I. They would submit that the Board of County Commissioners Resolution 2000-057 is also supportive. Mr. Sands stated in light of the Commissioner's ruling regarding The Ranch subject, he previously stipulated to all ofthe applicant's Exhibits coming in. But Exhibit A-167, dealing with the Parsons Engineering science exhibit, that was the document that he questioned previously regarding population trends and demographics, it says Adam's Rib Ranch Planned Unit Development. It has nothing to do with Frost Creek. He therefore objects to Exhibit A-17 coming into evidence. Mr. Ferguson stated they will submit that A-I? is relevant because the focus of the report is an analysis of population characteristics and trends throughout Eagle County, and while there is some reference, obviously it was done in the context of The Ranch. It does provide relevant information regarding population trends in this community. Mr. Fritze stated the ruling on what is into evidence has already been made. It's based on a stipulation ofthe parties. He doesn't know that they can go back and change that, nor would it be fair to change that. But the Board is the ultimate weigher of the evidence and relevancy that is going to examine this document and determine for itself whether there is anything to be gained from it if it's relevant or not relevant. And the Town of Eagle has the opportunity to make whatever argument they want to make with regard to that document, if they don't believe it's relevant. But you know, again, the first thing in the hearing today was they agreed that it would be and the Board has already ruled. Mr. Sands stated they did agree. His point is he believes this Board is acting in an arbitrary and capricious manner when they allow Adam's Rib to introduce Ranch documents, mention The Ranch a half dozen or a dozen times and then tell the Town of Eagle they cannot mention the word Ranch in any of their presentations. Mr. Fritze stated he believed the Board told Mr. Sands to the same degree that it was mentioned, he could mention it. It was where you wanted to try both applications together and the Board ruled that The Ranch hearing would be held, the date of The Ranch hearing has been set and that today after the start of the hearing with regard to the Frost Creek. Chairman Stone stated for the record the ruling was not that they could not mention The Ranch. He does not believe they ever said that. The Board is not going to go through a joint consolidated hearing. And so that's a different statement than Mr. Sands exaggerated in saying that he couldn't mention the word Ranch. Mr. Sands stated they only made a motion for consolidation after lunch. He understood the 29 10-17-2000 ruling of the Commission to be that their witnesses were not going to be allowed to address The Ranch. Commissioner Phillips asked what weight should apply to the exhibit that they were just discussing and they all recognize that some of that information applies to the entire County. She asked Mr. Fritze, would if it would make much ofa difference if they eliminated that exhibit from this hearing? But then Mr. Sands, if they do that, then they can't any of us mention The Ranch ever again during this hearing. Mr. Fritze stated The Ranch is mentioned and Commissioner Gallagher had raised the question to the extent that it was mentioned that the Town mentioned the courts ruling, and as far as the exhibit, it's been admitted, and the Board will look at it and see how relevant it is, and to the extent that it's not relevant, they are going to discard it. That's what the Board is -- the permit authority does, it at all these things, all this testimony and weighs them as appropriate. The Board is capable of looking at the things that have been submitted and Mr. Sands agreed at the beginning of the hearing should be admitted into evidence and decide whether they are relevant or not and, he has the opportunity in his argument to call things to their attention if he thinks it's important with regard to the relevance when they get to that point. Mr. Ferguson stated they were at 6.03.15 M, 6.04.15 M, and 60 515 F, which read the same. So they have brought in the third section that they have to comply with. The proposed development will not decrease the quality of peripheral or downstream, surface or subsurface water resources below that designated by the Colorado water quality control Commission as established on May 22, 1979, and effective July 10, 1979 or more stringent standards subsequently adopted. Mr. Erion stated the Colorado Water Quality Control Commission has established stream standards for Brush Creek under segment 12, region 12 of the Eagle River Basin. Segment 12 is classified for aquatic life, recreation 2, water supply and agriculture. The site application engineering report prepared by Wright Water Engineers addresses the treatment technologies that would be required to meet anticipated effluent limits for the wastewater discharge in order to maintain the stream standards, maintain the water quality, and meet these stream standards. Subsequent to the report, the state has issued preliminary effluent limits for the proposed wastewater treatment plant which are similar or less stringent than those anticipated in the site application engineering report. And so based on that, they believe the proposed technology can meet the effluent limits which will in turn ensure that the stream standards are met. Mr. Ferguson stated the exhibits that support this testimony are located first at the site plan application engineering report located at Tab K and the State of Colorado letter regarding preliminary effluent limitations which is Exhibit A -19. Mr. Sands asked as to which treatment plant technology they will be using to meet these standards. Will that be the treatment plant that is shown in this diagram? The Board has previously received that. Mr. Sands stated this is the one with the little truck at the end of it. Mr. Erion stated the diagram he is looking at is labeled Figure 1 and it is a diagram located in the site application engineering report and it is the proposed treatment process for this treatment plant. Mr. Sands stated so the one that was shown earlier will be used for Frost Creek to meet the water quality standards they discussed. Mr. Erion stated that is correct. Mr. Ferguson stated Section 6.03.15 N and 6.04.15 N again are exactly the same. They read, the proposed development or its associated collector or distribution system or new service areas will not violate federal or state air quality standards. Mr. Knight stated the system service area and development will not violate federal or state air quality standards. Refer to the 1041 permit application attachment F which is a copy of an atmosphere and other technical report that concluded that this development will not violate federal or state air quality standards and the August 24, 2000 State of Colorado letter Exhibit A-2 indicating that the state agrees 30 10-17-2000 with this report. Bruce Snyder and his crew did a very, very good report which was included with this or given to them and included with the planning process. As they know, they have fireplace restrictions, open hearth fireplace restrictions. They have revegetation plans for all disturbed areas. The roads will be paved, eliminating dust from traveling vehicles. And this is a very low density project which also assists with air quality, maintenance of air quality. Mr. Ferguson stated Mr. Knight referenced the exhibit that is in support of this, both the atmospheric and odor technical report by Parsons Engineering science at Tab F and the State of Colorado letter on air quality at Exhibit A-20. Chairman Stone stated he has a question from the public that was submitted. It reads as follows; "Adam's Rib application says wastewater treatment facility will not violate federal or state air quality standards. Avon's wastewater facility meets federal and state standards yet emanates foul odors. What will Adam's Rib do to assure the wastewater facility will not emit foul odors that will make surrounding home sites unpleasant?" Mr. Erion stated this is a question or an issue that Adam's Rib also asked of Wright Water Engineers, and the proposal is to enclose the treatment plant within the building and provide for a filtering system on the building which will control the odors that may be emitted from the facility. Chairman Stone stated he wanted to make a clarification that that facility is located in Avon, it's not actually owned and operated by the Town of Avon. It's operated by the Upper Eagle Valley Water and Sanitation District. Mr. Sands asked ifthe process they are describing to eliminate odors, they are actually describing that process in The Ranch application. He does not see that process being used at all in the Frost Creek application. Mr. Erion stated he is referring to page 19, in paragraph 7, item 8 under treatment plant building. It indicates that odor control from the building will be considered during the design ofthe facility. Mr. Ferguson stated Sections 6.03.150 and 6.04.150 are the same. He stated he would also like to direct the Board's attention to section 6.05.15 G, which is very similar. Section 6.03.150 and 6.04.150 reads as follows: The proposed development or its associated collector or distribution system will not significantly deteriorate aquatic habitats, marshlands and wetlands, groundwater recharge areas, steeply sloping or unstable terrain, forests and woodlands, critical wildlife habitat, big game migratory rates and habitats of rare endangered species, public recreation areas and areas of historic or geological/archeological importance. He stated the only difference in the criteria at 6.05.15 G is that instead of a reference to the development and its associated collector or distribution systems, the reference is to the proposed development and potential difficult versions of water from the source development area. Mr. Knight stated aquatic habitats, marshlands and wetlands, groundwater recharge areas are not significantly deteriorated. See Exhibit A.21. Refer to attachment I in the 1041 permit application which is a copy of the riparian report, wetlands report, wildlife analysis that concluded that this develop would not significantly deteriorate these environments. Further refer to attachment G in the 1041 application which is a copy of the geologic site assessment, geotechnical study and slope analysis that concluded that this development would not significantly deteriorate these land forms. Also, refer to the attachment H in the 104 permit application which is a copy of the historic content report that identified the Frost Homestead Cabin as the only site eligible to be in the national register of historic places. This site will not be disturbed by the development and is located by a golf tee. Mr. Ferguson stated they would like to add the wildfire protection report in Tab I and the Riparian report at Tab I and the wetlands report at Tab I, together with the Wright Water Engineers letter regarding wetlands, marshlands, aquatic habitat and groundwater recharge in Exhibit A-21 and corresponding letter at A-22. Mr. Knight referred to the map and stated he believes it illustrates the concept plan. The vast 31 10-17-2000 majority of the central area where lots are located is the previous agricultural properties. Some have been irrigated, some not, but all impacted by agriculture. The areas that have surrounded this area, even though they were impacted by domestic livestock and especially along Brush Creek, those areas have been removed from those uses and plans established to rehabilitate those. Approximately half of the property is in recreation and open space lands, and they think the standard is to not significantly deteriorate, but they think they have clearly demonstrated substantial improvements. Mr. Ferguson stated section 6.03.15 P and section 6.04.15 P again are the same. The criteria are as follows: The proposed development or its associated collector or distribution system will not significantly degrade existing natural scenic characteristics, create blight, or cause other nuisance factors such as excessive noise or noxious odors. Mr. Knight stated the visual conditions report, Exhibit A.22 indicates that the natural scenic characteristics are not significantly deteriorated and the project does not create blight. Please also refer to the attachment F in the 1041 permit application which has a copy of the atmospheric and other technical report and noise technical report that concluded that this development would not significantly degrade any of these factors or characteristics. Similarly to wildlife habitats they discussed, not only will it not significantly deteriorate, which is of course the standard they must meet, there will be substantial improvements. They also have noted in their discussions that ridge lines are carefully avoided, development is not on any ridge line. They have no residential development between Brush Creek road and Brush Creek, thereby protecting the wide buffer and corridor, natural corridor, and the higher areas have been avoided and early agriculturally used meadow lands are the areas for which development is proposed. Mr. Ferguson stated the only addition he has is Exhibit A-23, rather than A-226789. Mr. Ferguson stated Section 6.03.15 Q and 6.04.15 Q, again are the same. The criteria are, the proposed development or its associated collection or distribution system many not create an undue financial burden on existing and future residents within the development area and source development areas. The cost of securing an adequate supply of water for existing and future needs of the residents of the County shall be considered in determining whether an undue financial burden will result. Mr. Bernstein, president of Stan Bernstein and Associates spoke to the rates that are being proposed. There are two types of rates. One is the ongoing monthly water fee and sewer fee and irrigation fee that is proposed for the Frost Creek homeowners. And the other type of fee is the one-time initial impact fee which is referred to as a tap fee again for the water, the sewer, and the irrigation functions. What's proposed for the water rates would be a total per single-family residence of about $420 a year, for sewer it would be about $600 a year, so a total water and sewer of a little over a thousand dollars a year. And the irrigation fee would be depending on how much water these owners use, and keeping in mind these are large lots close to an acre that would be irrigated. That will be $600 a year. And those rates certainly are consistent with similar charges by other comparable developments in Eagle County and elsewhere, and certainly they will not create an undue financial burden on the residents of Prost Creek. The average home here is supposed to be a million dollars so he does not think a thousand dollars a year for water and sewer is going to hurt anyone. In terms of the one-time impact fees or tap fees, they're proposing for water $4,000 per residence. For sewer a tap fee of $5,000 per residence, and for irrigation a tap fee of $4,000 per residence. That would be a total combined impact fee of $13,000. Again, it is very consistent with similar charges proposed on these type of developments, the Arrowheads and the Cordilleras and Beaver Creeks actually are higher than that. And again, the homes will be an average million dollars and those fees will not create an undue financial burden on the residents of this development. The capital costs for the water, sewer and irrigation systems serving Frost Creek will be paid for by the Metro district, homeowner's association, or by the developer, and the burden will ultimately fall on the residents of Frost Creek. There will be no financial burden at all on any County residents who do not reside in Frost Creek. Mr. Ferguson stated the exhibits that are supportive of Mr. Bernstein's testimony are, number 32 10-17-2000 one, the metropolitan district's number one and two service plans at Tab E, the Adam's Rib September 27,2000 letter at Tab E, and the Holland & Hart letter located as Exhibit A-B. Mr. Sands stated in the Adam's Rib application there was a proposed service plan for the metropolitan districts to provide the services discussed here. Did he help develop that service plan? Mr. Bernstein answered yes. Mr. Sands stated ifhe is reading that service plan correctly, it calls for the formation of two metropolitan districts. Mr. Bernstein stated that was his understanding. Mr. Sands asked if one district is only going to be two acres in size and the other district is going to actually encompass the whole development. Mr. Bernstein stated that is correct. Mr. Sands asked what's the reason for having a district only two acres in size? Mr. Bernstein stated he was asking a legal question and he is not an attorney. The attorneys lately have been forming what they call the dual district, and it was recently approved by Eagle County as the Red Sky Ranch and Holland Creek Ranch Metropolitan Districts. Those are dual districts. And the service district is the smaller district. He believes that is referred to as a control district. Mr. Sands stated his concern is the size of the districts. But wouldn't they agree that only property owners or residents get to vote in a special district election? Mr. Bernstein stated he is not sure who votes in the special district elections. Mr. Sands stated he believes the law is clear that only residents and owners vote, and isn't it true the reason for making a district only two acres in size as opposed to a larger size is that the developer, Kummer Development, will be the only voter in special district elections for that service district? Mr. Bernstein stated that is a reason. He doesn't know if that is the only reason. Mr. Sands stated and that district in fact will set all the user rates, not the large financing district. This small two-acre district will actually set the tap fees, the user fees, and so on and so forth that he discussed in his testimony, correct? Mr. Bernstein stated he believes that's correct. Mr. Sands stated and that's in perpetuity, isn't it? Mr. Bernstein stated he is not sure about that. Sometimes the districts are organized so that once the general obligation bonds are retired, that the service district is dissolved. Mr. Sands stated but in the service plan that's in the application that he helped draft, does he see any requirement that the master district goes away when bonds are paid off? Mr. Bernstein stated he did not draft that portion, and is not so sure that he read it thoroughly, therefore he cannot respond to that. Mr. Sands stated now, referring to Tab E that he talked about during his testimony that his attorney referenced as being relevant, on page 1, there is a report there dated October 30 of'99. This is where they set forth the sewer tap fees, water tap fees, and so forth, for Frost Creek. That lists the average tap fees per unit, correct? Mr. Bernstein stated that was correct. Mr. Sands stated and for a sewer tap fee for Frost Creek they are projecting that it is going to cost $5,000? Mr. Bernstein stated that is correct. Mr. Sands asked ifhe was aware that the Town tap fee for sewer is $35007 Mr. Bernstein stated he was aware of that. Mr. Sands stated regarding sewer user rates, they are projecting an average of$50 per month? Mr. Bernstein stated that is correct. Mr. Sands asked if he is aware that the Town of Eagle monthly sewer user fee is $18 per month? Mr. Bernstein stated he was aware of that. Mr. Sands stated regarding water taps, they are projecting that the Frost Creek water tap for those 33 10-17-2000 lots are going to be on the Frost Creek system, they are projecting $4,000? Mr. Bernstein stated $4,000 per tap average. Mr. Sands asked ifhe was aware that the people who are on the Town system will be paying $3,000? Mr. Bernstein stated the information that he was aware of was that the Town's water tap for in Town taps was $3,400 and out of district was $4,000. Mr. Sands stated Mr. Bernstein also indicated there was going to be a $4,000 irrigation tap on top of that for the non-potable irrigation system. Mr. Bernstein stated that is correct. Mr. Sands stated and for some of the smaller lots that the Town system may not need that irrigation tap, is that his understanding? Mr. Bernstein stated he has projected that the tap would apply to 300 units. That's what this page 1 indicates. Mr. Sands stated that sounds like aU of them because there is 315 units with the ADUs included. And then he says there will be a $50 per month irrigation user fee. Mr. Bernstein stated he believes that would be $49. Mr. Sands stated based on that, would he agree that the Frost Creek system to the user is considerably more expensive than the Town's systems.? Mr. Bernstein stated no he does not agle\~ with that. Mr. Sands asked why. Mr. Bernstein stated they assumed $35 average monthly fee for domestic water, not irrigation water, but domestic water. He believes compares to about a $30 fee for in-Town residents and about a $60 fee for out of Town residents. He stated he agiees the amount of user fee f()r sewer is higher than the Town's $8. But he thinks that the in terms oftht. irrigation charge, that if a residence in Frost Creek was using and paying the Town, the in-Town water rat~s, that the monthly charge assuming 110,000 gallons are used per month per home for irrigation wouU be significantly higher. Perhaps two or three times as high. We were talking about the irrigation chargl~, the $49 monthly irrigation charge. He believes that charge would be much higher if this property were served by the Town of Eagle, assuming the Town of Eagle was charging their $5 rate per gallon. Mr. Sands asked assuming they were on a potable sy~tem to irrigate as opposed to separate irrigation system which Eagle has required for several projech'. Mr. Bernstein stated correct. Mr. Sands stated and the water tap fee is also higher, COEect? Mr. Bernstein stated the Town of Eagle water tap fee is really $4,000 for those out of Town and those in Town it is $3,400, so depending on what that actually i~~ it may be a little higher. The sewer, $5,000 compared to $3,500, is also higher. Obviously the irrigation tap fee of $4,000, he does oot believe the Town of Eagle has an irrigation tap fee. Bear in mim~ though, that the homes that we"re talking about in Frost Creek are much larger than the typical hom~ in the Town of Eagle. And throughout Eagle County certainly the eastern portion of Eagle County, these rates, the proposed impact fee, water and sewer and irrigation of$13,OOO is really lower than a lot ofthe homes are paying in the eastern part of the County. Mr. Sands stated but higher than anything he is aware of in the western half the County? Mr. Bernstein stated all he is aware of is the Town of Eagle. Mr. Sands stated he believes when he was running through1his resume he said he had done work for the Upper Eagle Water and Sanitation District? Mr. Bernstein stated that is correct. Mr. Sands stated that's a consolidated district, isn't it? Mr. Bernstein stated he does not think that is a consolidatedldistrict. It's actually not a district. The Upper Eagle Regional Water Authority is an authority. There are two entities. One is the Upper 34 10-17-2000 Eagle Water Authority and other is the Eagle Valley Water and Sanitation District so he is not sure what he is referring to. Mr. Sands stated weren't there a number of smaller districts in the eastern end of the County that ultimately were consolidated for management purposes into a larger district? Mr. Bernstein answered yes, that was in Vail. There were several districts in East Vail, West Vail, Intermountain, and those were in fact consolidated. Mr. Sands stated but he doesn't do work for that consolidated district? Mr. Bernstein stated he does work for that consolidated district. Mr. Sands stated he was asking because he has seen advantages to consolidation of districts of systems? Mr. Bernstein stated he can't honestly answer that question because when they were individual districts in Vail, he was not doing work for those districts, and he began doing work for the Eagle River Water and Sanitation District after they had been consolidated. Mr. Sands stated so he doesn't necessarily see and know one way or the other ifthere are financial economies by having one entity do billing, that kind of thing? Mr. Bernstein stated logically one would assume so. But he cannot specifically say that he has studied this. Mr. Sands stated he believes Mr. Bernstein testified that in his opinion, he doesn't believe there will be any undue financial burden that will occur to future residents based on what is being proposed? Mr. Bernstein stated he does not believe so, based upon what he's seeing in the eastern part of this County. The water and sewer monthly rates are comparable to what's being proposed for Frost Creek and the tap fees are higher, he certainly doesn't see any burden occurring in those areas. Mr. Sands stated and even if one person or one entity can solely control what all these rates will be without any voice from the 6 or 800 residents who will be living there, he doesn't see any room for potential financial abuse? Mr. Bernstein stated again, based on his experience in Eagle County and other counties, that has not happened. He does not think that the people that are controlling the district, the developers, want to do anything that's going to be detrimental to the success of their development. So he thinks he sees them being very sensitive to rate increases and to tap fee increases and property tax increases because it's not in their best interest to do something that's going to upset people or hurt their development. Mr. Sands stated it will all be based on the developer's sensitivities. Mr. Bernstein answered yes. Mr. Ferguson stated they are now moving on, making good progress to section 6.03.15 Rand 60 515 H, which are the same. There is no 6.04.15 criteria in this category. The criteria provides as follows: The advanced wastewater treatment offset plans required by subsections 603137 B 6 and 603138 E have been approved by the permit authority and required fees associated therewith have been paid. Mr. Erion stated off set plans are not required for this proposed project. The effluent discharge permit that will be issued by the Colorado Department of Public health and environment for the proposed wastewater treatment facility will set the effluent limits and additional monitoring requirements to meet the Colorado River Salinity Control Plan. What is monitored is T D S or totally dissolved solids which relates to the salinity. It's typically not a specific effluent limit, but simply a monitoring requirement and if the T D S becomes unusually large or appears that it may be having an impact, the state will then go to the wastewater treatment plant and ask them to look at that. There will be no impact to the Town of Eagle water supply on Brush Creek from the wastewater effluent and no impact to the wastewater -- to the effluent limits for the Town of Eagle's waste water treatment plan discharge. Mr. Ferguson stated the exhibit in support ofthis is the state of Colorado letter providing us with preliminary effluent limitations and Exhibit A-19. He stated next is section 6.03.15 S, section 6.04.15 T 35 10-17-2000 and section 6.05.15 I are exactly the same. They provide, the construction of structures, buildings and improvements associated with the proposed development will not significantly impact existing or proposed communities within the development area and source development area. Mr. Knight stated no significant impact will occur with the proposed development due to its low density. The self contained nature of the community with its own utilities will not significantly impact existing or proposed communities within the development area and the source development area. To expand briefly, it was pointed out that a significant number of these will be second homes, which are used very little in terms of public services, and create benefits due to the tax structure. Users in both residents and second homeowners will certainly use the facilities of the Town of Eagle, the commercial facilities, and pay Town of Eagle taxes, sales taxes, et cetera, and that will be of benefit to the commercial services within the Town. We have witnessed in Edwards that Cordillera and Arrowhead and others have created a great deal of commercial interest in Edwards. It has grown up to support those and they would expect that to happen here as well. Additionally, due to the fact that it is a private road system and private internal utilities, no public costs will be raised or affected because all the maintenance will be done privately within the development itself. Mr. Ferguson stated the exhibits they believe specifically support this testimony are one, the vicinity map at Tab C, two, the adjacent property owners map at Tab C, and three, the population characteristics technical report at Exhibit A -17, together with the Board of County Commissioners Resolution 2000-0057. Mr. Sands stated at least in his mind the language in item F is somewhat ambiguous. It can be interpreted it a number of ways, construction activities, that kind of thing, or are we talking about actually the buildings, improvements, people who live there. And ultimately the Board will have to interpret what that subsection really means. But they would agree, that if it means the people living in those buildings and improvements, there will be off-site traffic impacts on Brush Creek road, correct? Mr. Knight stated there will be impacts, of course. Brush Creek road will service that project. Mr. Sands stated and thus, there would be off site traffic impacts that would affect the Town of Eagle and residents residing within the Town of Eagle, correct? Mr. Knight stated the traffic report and the traffic plan show that. Service level will not be affected. But service level in terms of use of streets, particularly new streets, will not be affected. Mr. Sands stated now, in the application it indicates that, for example, the wastewater treatment plant is capable of being enlarged to serve 800,000 gallons per day of effluent. If that becomes a regional wastewater treatment facility, is expanded in that manner, does he foresee additional impacts? Mr. Knight stated certainly when they say any impacts, one additional house is a certain amount of impact. In terms of the quality of water and air, et cetera, they have a very stiff burden to meet to show that they are not negatively affecting air and water quality. Is it a detrimental effect, and sets us to another standard, a lower standard, he would say no, they required not to. Mr. Sands stated Mr. Knight would agree that under 2 A plan, perhaps other planning documents, regional sayings, particularly waste water services, is encouraged, if not required, correct? Mr. Knight stated depending upon the circumstances, he believes it is certainly better as a blanket statement. However, return flows to the stream, minimum stream flow requirements, where water is taken out and where it's put back, those are equally significant matters. Mr. Sands stated isn't it true that about 1200 acres in the vicinity of Prost Creek wastewater treatment plant, could be served by that plant if it became a regional plant? Mr. Knight stated he hasn't done that calculation but wouldn't disagree with it. Certainly there is land available that ifthe need were there, it could be. They are required to consider expansion and that's what they did. Mr. Sands stated you are required under Eagle County regulations to consider expansion, correct? Mr. Knight answered yes. 36 10-17-2000 Mr. Sands stated they need to discuss that possible expansion and some ramifications, correct? Mr. Knight stated yes, although it's not affected by us, it's affected by other people. They are required to consider that and they have. Mr. Ferguson stated they are now at Section 6.05.15 T and 6.04.15 R, which reads exactly the same and the criteria provide the development site for major new domestic water or sewage treatment system is not subject to significant risk from earthquakes, floods, fires, snow slides, landslides, avalanches, rock slides or other disasters which could cause the system operational break drown. Mr. Gonzales stated he is a registered professional engineer in Colorado and has been practicing engineering for five years. Basically, the risks have been reviewed and analyzed, and the basic conclusion has been reached that there are no significant risks for many of these concerns. Mr. Ferguson stated the exhibits in support ofthis are found as geologic site assessment by Hepworth, Pawlick Geotechnical at Tab G, the preliminary geotechnical study by the same firm at Tab G, soil survey by the soils conservation service at Tab G, slope analysis by Knight planning services at Tab G and the wildfire and fire protection report contained in Tab I. He stated his primitive checklist would indicate they have completed their presentation with respect to 6.03.15, and they have two criteria left under 6.04.15. They shall proceed with 6.04.15 A, which provides that major extensions of domestic water and sewage treatment systems shall be permitted in those areas in which the anticipated growth and development that may occur as a result of such extension can be accommodated within the financial and environmental capacity of the development area and source development area to sustain such growth and development. This criteria relates to the extension ofthe service by the Town to the 200 units. Mr. Cloyd stated the Town of Eagle has refused to provide any additional service to this project. Therefore, there is no regional water treatment plan or wastewater treatment plan to service this project. As a result, the existing treatment plants cannot be utilized by this project and the new treatment systems are necessary and appropriate. They have requested from the Town one of 15 additional taps for the golf course property together with service for the clubhouse and administrative offices. Pursuant to paragraph 2 of the 1983 agreement. It is within the discretion of the Town to determine whether it wishes to enter into an agreement for additional out of Town services. The Town is under no obligation to supply out of town services except pursuant to contract. There is no requirement that the Town provide additional water services. Additionally, the Town's policy on out oftown water service is to require annexation. Water service is requested. There are no regional water treatment systems that service the area. The Adam's Rib water augmentation plans call for the wastewater treatment plant to be located in this area having both the source and removal of water and return of wastewater close to each other is appropriate development of the treatment plants particularly in light of the needs to protect the creed in stream flows. In the submittal 1041 permit, they have gone into additional detail in response to that and this was a summary. Mr. Ferguson stated in addition, he would like to incorporate and would invite cross-examination by Mr. Sands as he deems appropriate the comments that Mr. Knight made under 6.03.15 oh, 6.04.15 oh, and 6.05.15 G, which really relate to environmental issues. He would also like to incorporate the comments made by Stan Bernstein under 6.03.15 Q and 6.04.15 Q relating to the financial component of the project. In addition, the following Exhibits specifically relate to supporting the testimony that Mr. Cloyd has given. Number one is the vicinity map located at Tab C. Two, the preliminary site plan located at Tab C. The preliminary illustrative plan in Exhibit A-2. The Holland & Hart letter and the Holland & Hart letter and Caloia & Houpt letters in Tab E, Adam's Rib letter in Tab I, the 1983 agreement with the Town at Tab E, the decree and case number 81 CW 479, and the applications for water rights in cases 99 CW 194 and 195 which are located as Exhibits 10 and Exhibits 11 and he would like to incorporate by reference the Board of County Commissioner Resolution 2000-57. Mr. Sands stated the Town of Eagle does not oppose the 1041 application brought under 604. Under that application there they are simply attempting to extend the Town's system to serve the Frost 37 10-17-2000 Creek development. They don't oppose that application. Mr. Ferguson stated one other criteria to make sure that they've satisfied would be section 6.04.15 S. And the criteria reads, any proposed domestic water treatment and distribution system is capable of providing water meeting the requirements of the Colorado Department of Health. Mr. Erion stated this relates to the extension of the Town's system. The existing Town of Eagle water system meets the state requirements. The proposed extension will meet the state requirements. The water rights in support of that water supply are in 81 CW 479, which is in Tab E and the annexation agreement which is in Tab E, and the water system report prepared by Johnson Kunkel & Associates which is found at Tab K. Mr. Ferguson stated he would add under the Wright Water Engineer's letter dated September 29, 2000 at Exhibit A-22. The two criteria left are A through Eon 6.05.15. Therefore let's begin with the 6.05.15 A. Which criterion reads as follows: The need for the proposed water project can be substantiated. Mr. Cloyd is going to testify with respect to this criterion. Mr. Cloyd stated the 1983 water augmentation plan provided a water supply for 200 EQR for the project. The taps for this water supply from the Town of Eagle have already been prepaid and the capacity for the service has been re-serviced by the Town. The additional 115 units and clubhouse and administrative office water needs for the project must be met since these uses were approved by the Board of County Commissioners in its approval of the sketch plan on this project. Mr. Ferguson stated the exhibits that they would submit in support ofthis are again the Holland & Hart, Caloia & Haupt letters in Tab E and the Adam's Rib letter in Tab E, the 1983 agreement with the Town in Tab E and the decree in case No. 81 CW 479 in Tab E, together with the applications for water rights in cases number 99 CW 194 and 195 and Exhibits A-lO and A-II and by reference the Board of County Commissioner Resolution 2000-57. He stated the next section is section 6.05.15 B. Mr. Sands stated they were a little concerned about the time here. The Board may be also. And he understands that applicant's counsel can wrap up very shortly they have some witnesses who need to get on an airplane later today. They understand normally in the order of the proceedings, the County staff would be the next to present. What if they were to take the witnesses out of order, in order to accommodate them. He wanted to see what the Commission thought about that. Chairman Stone stated he is not sure that the Commissioners have an objection to that as long as the applicant doesn't. Mr. Ferguson stated they have no objection. Chairman Stone stated it is different from the prehearing order that they all agreed to. Mr. Ferguson stated what was of concern to them was being able to wrap up their case, and they are going to be able to do that here in the next few minutes. They have 4 issues left, one of which they think they have just resolved very quickly. So they can get those done and then they can move forward. Chairman Stone stated the Board has no problem with that. Mr. Sands stated he's going to have no questions for the remainder of their witnesses and has just entered into a stipulation with them where they can incorporate some of the previous testimony on these new points to speed things along. Mr. Fritze stated he believes the parties are in agreement that the Board could allow that and then return to the regular order tomorrow. The Board's notes needs to get from the staff and Planning Commission recommendation. Also, since they have kind of interrupted the flow, it might be an oppotune time to take the ruling that the Board took under advisement with regard to offers of proof. There appeared to be some confusion in the understanding of what the counsel for the Town of Eagle had to say and the rulings. Chairman Stone stated but pursuant to our prehearing order, if Counsel still feels it's necessary, they would entertain written offer of proof submitted prior to the conclusion of the hearing. Mr. Sands stated they can submit those probably tomorrow. Mr. Ferguson stated that's acceptable to them. They have criteria left. He believes they can do 38 10-17 -2000 them quite efficiently. Section 6.05.15 B is next. Chairman Stone stated that section has already been covered. Mr. Ferguson stated actually, the only difference is that 5.15 B provides compatibility; whereas, 3 and 4.15 B provides no conflict. They read differently, but Mr. Sands and the applicant have agreed that the testimony that was provided in support of sections 6.03.15 B and 6.04.15 B can be incorporated in support of this criteria so they don't have to go through the same thing. They have been down this road, but it is again a technicality. Moving on then to section 6.05.15 C, that criteria reads as follows: Municipal and industrial water projects shall emphasize the most efficient use of water including to the extent permissible under existing law the recycling and reuse of water, urban development, population densities and design of storm water and sanitation systems shall be accomplished in a manner that will prevent the pollution of river recharge areas. Mr. Erion stated the project is designed to efficiently utilize water. Reuse of wastewater effluent for irrigation is not permitted by a water augmentation plan decreed in case No. 479 or the application for plans of augmentation in case numbers 99 CW 194 and 99 CW 195. Additionally, the golf course raw water irrigation system is connected to the residential raw water non-potable irrigation system, and may use senior irrigation water and not treat it effluent. In other words, you could not separate the systems to use treated effluent solely on the golf course even if it were permitted under the augmentation plans. The development design and drainage plan would utilize best management practices, restore water run off, erosion and said empty control to prevent of the pollution of aquifer recharge areas. The water treatment and systems many not offer for recharge areas. Mr. Ferguson stated the exhibits that they submit in support of Michael's testimony are again, the decree in case No. 81 CW 479 at Tab E, the applications in 99 CW 194 and 195 in Exhibits A-I0 and A-II, the vicinity map at Tab C, and the preliminary site plan at Tab C, the preliminary illustrative plan Exhibit A-2 and the preliminary plan you drainage study provided by Johnson Kunkel & Associates at Tab L. Mr. Ferguson stated Section 6.05.15 D reads as follows: Provisions to ensure the proposed water project will not contaminate surface water resources. Mr. Erion stated the wastewater effluent will meet the effluent limits set forth by the state health department and best management practices with respect to storm water, erosion, drainage, those best management practices will ensure that the proposed water project will not contaminate surface water resources. Mr. Ferguson stated in support of this there are numerous references in the Exhibit A-I, the permit application regarding best management practices. Secondly, the site application engineering report by Wright Water Engineers located at Tab K, and the State of Colorado letter providing preliminary effluent limitations is located at Exhibit A-19, together with the Johnson and Kunkel preliminary plan drainage study located at Tab L. Mr. Ferguson stated the last criteria is 6.05.15 E. That reads, the proposed water project is capable of providing water pursuant to the standards of the Colorado Department of Health. Mr. Erion stated as demonstrated in the earlier criterion for 603 and 604, the proposed projects both extension of the Town's water system as well as the proposed new water system will meet the standards of the Colorado Department of Health and provide safe drinking water. Mr. Ferguson stated he would incorporate the exhibits that were set forth in their presentation relating to section 6.04.15 S. Mr. Ferguson stated that concludes the presentation they have in support of a positive finding with respect to our 10 41 permit applications. In the interests of moving along and accommodating Mr. Sands, they'll save any further comment until an appropriate time. Chairman Stone stated in an effort to kind of help out the Board, if they can give us a statement that related what they hope to demonstrate with their witnesses or testimony in relation to a specific 39 10-17-2000 portion, it would help them to determine instead of trying to guess where they are heading with their testimony. Mr. Sands asked to take just a moment to explain what they are doing for the guidance of the Commission. They will have a power point projector and screen set up. They will be projecting on that screen which criteria the testimony is aimed towards. So that's going to help them very much with exactly what they were interested in. They had hoped the testimony was going to be a historical perspective of the Adam's Rib projects and the 1983 water agreement between the Town of Eagle and Frost Creek to serve the 200 units. That testimony will be presented by Willie Powell, the Town Administrator and Jim Lochhead, water counsel, special counsel for the Town of Eagle who negotiated that agreement. That was supposed to be the first part of the presentation. They are having to take this testimony out of order. Beyond that historical perspective they were going to do like the applicant, go in order of the criteria down 60314, letter by letter. Chairman Stone asked if they plan to go through every single letter just like the applicant did, or are they just going to focus on those letters that they object to. Mr. Sands stated they will just be focusing on the ones they object to and believe the applicant has failed to meet its burden of proof on. He stated he can tell the Board which ones they will be contesting and do not believe the applicant has met their burden of proof on A. Mr. Sands stated the next two witnesses will both be testifying in regard to one B, the proposed development does not conflict with an approved local Master Plan. He stated the first person to testify is Leslie Bethel, Vice President with Clarion Associates of Colorado. Ms. Bethel stated she wrote the comprehensive plan for Alamosa, Colorado, Chaffee County, Colorado, Grand County, Colorado, the Eagle Area Community Plan, and a downtown plan for Edmond, Oklahoma. She stated she also wrote the downtown plan for Glenwood Springs, the downtown planning for Parker, Lafayette, a comp plan for Boulder, Colorado, the three-mile plan for Gunnison, downtown plan for Castle Rock, Colorado. She has also done planning for Salida, and Twin Falls, Idaho. Mr. Sands asked what involvement did Clarion Associates and RN L design have in the drafting of the Eagle Area Community Plan? Ms. Bethel stated RN L was actually the prime contractor. They were in partnership, a 50-50 partnership with Clarion Associates. She was the project director and the principal in charge of the project. Mr. Sands asked Ms. Bethel to describe the process that was involved in developing that Eagle Area Community Plan. Ms. Bethel states it was a process guided by the participation of local residents, property owners, municipal and County agencies, some state and federal agencies, and of course, the consulting team, Clarion and RN L. They also had very importantly, a community plan advisory Board of which earlier today, there were three people from that advisory Board sitting up here due to their great interest in this hearing. That advisory Board or advisory plan Board was selected jointly by the Eagle Town Board of Trustees and the Eagle County Board of Commissioners. This committee worked on a regular basis served as a sounding Board for our team and importantly was not asked to vote in any capacity. They had six community workshops during the course of the project, and an open house work session to provide the community with lots of opportunity to discuss and refine many of the scenarios that they were discussing. In addition to the community process, they also did a lot of research regarding natural systems, established development patterns. It was very much the Eagle area plan which is a character-driven plan, reflecting the community's desires. They did a series of alternative development scenarios, there were maybe 10 of them, and they actually hosted a growth management workshop and they took and refined the scenarios into one preferred alternative. They then came before the Town of Eagle, the Town of Eagle Planning Commission, and the Eagle County Planning Commission in a joint meeting. All Commissioners that were there voiced support for continuing to develop the plan. The only other thing she could add to that is that their fees for this project were equally split between the 40 10-17-2000 Town of Eagle and the County. Mr. Sands stated in other words, then, Eagle County jointly funded with the Town of Eagle the preparation and development of the Eagle Area Community Plan. Ms. Bethel stated they did, and they were equally active in working with us throughout the process. Mr. Sands stated they didn't see her as working just for the Town of Eagle through this process. She saw herself equally working for Eagle County? Ms. Bethel stated absolutely. Mr. Sands stated if he understands the testimony, half of the citizens advisory committee was appointed by Eagle County as opposed to the Town? Ms. Bethel stated yes, that's true. Mr. Sands stated now, during this process, you indicated there were a number of community workshops, hearings. Did representatives of Adam's Rib or Kummer development ever attend these hearings? Ms. Bethel answered yes. Mr. Sands asked did they ever argue that the area they've denominated as Frost Creek on Exhibit 33 were there ever arguments made that the area should be designated a resort as they were preparing that plan? Ms. Bethel stated yes, there were discussions regarding that. Mr. Sands asked was the request from Adam's Rib carefully considered by them and the citizen advisory committee as this plan was being prepared? Ms. Bethel answered yes, and it was documented as one of the alternatives that was reviewed not only by the consultant team, but by the community throughout the six workshops. Mr. Sands asked about Exhibit E-6. Ms. Bethel stated it looks like it might be the Eagle Area Community Plan. Commissioner Phillips stated she did not have that in her book. Mr. Sands stated they presented 22 of them to the County. They would not fit in the binder so they had to be separate. They do have extras available. Mr. Sands asked if Ms. Bethel had reviewed the Frost Creek 1041 application, the Frost Creek PUD and the Eagle County Land Use Regulations. Ms. Bethel answered yes. Mr. Sands asked if she had an opinion, a professional opinion, as to whether the proposed Frost Creek development and accompanying water and wastewater systems conflict with the Eagle Area Community Plan? Ms. Bethel stated her opinion is that the Frost Creek proposal is not in compliance with the Eagle Area Community Plan. Mr. Sands asked Ms. Bethel to describe to the Board of County Commissioners as to why she believes in her professional opinion it does indeed conflict with the Eagle Area Community Plan and also respond to some of Mr. Knight's testimony. Ms. Bethel stated she would like to cite several policies out of the plan, but to begin with, it might be helpful if she states the three primary reasons, without going to the exact policies, of why the application is not in compliance with the Eagle Area Community Plan. First of all, location. The three reasons why she feels so strongly about this are the backbone behind the community plan. There are many components as there are in any plan, but these three reasons are really the backbone of the plan. And the first is location, and probably the most important. The plan states and very clearly that there is going to be continuous expansion ofthe Town of Eagle. And this proposal, the Frost Creek proposal, clearly is four miles away from the Town. It is not contiguous. The second reason is that the Frost Creek proposal is recommending a density that is 10 times the required density in the plan. The plan states 41 10-17-2000 rural zoning, one unit per 35 acres. The proposal is recommending 3.7 acres per unit. That's a 10 time increase. Tying back to the question about Mr. Knight's earlier proposal, she reread the Eagle Master Plan, Eagle County Master Plan as well, and in the category that says that is resource zoning one unit per 35 acres, there is no mention of the opportunity for a P and D. So on her list of three, she has cited two: location was one, two was density. Three is the plan calls for rural development in this area, and that's what the citizens decided. They had 10 alternatives before them. They chose an alternative that had rural development in that area of Eagle. Mr. Sands stated just to clarity, was one of the alternatives before the citizens a high-density alternative, a resort-type development alternative that Adam's Rib was specifically recommending at those Eagle Area Community Planning hearings? Ms. Bethel stated if they can turn in the plans, we actually have a page that has all 10 alternatives on it. All nine of these were alternatives that they looked at with the community in the open houses and discussed the pros and cons, the strengths and weaknesses of. There is for instance, No.3 is multiple community centers which means throughout the Brush Creek valley with adjacent moderate to high density development. And she actually thinks she would have to look back carefully, but believes that the plan showed development mid-valley and then all the way towards where there was once a ski area proposed. So the community looked hard at development throughout the valley and made a decision though, much input and much time by the local citizens, that's not what they wanted. They wanted development contiguous to Town. Mr. Fritze stated he understood that 3 C actually meant 3 E. Mr. Sands stated they read it wrong. The page number is 3 E. Mr. Sands stated they have listed these three primary considerations and gave an example of the kind of alternatives that were rejected. Explain what alternative was ultimately adopted and why. Ms. Bethel stated perhaps the best way to do that is to go through, the policies that accompanied the preferred alternative that was selected for the Eagle Area Community Plan. The first policy, and they were really pretty much done in order of priority, and that's why I say that there may be hundreds of policies in this plan, but there are several of them that create the framework and the backbone to the plan. The first is location. Under community size and character, guiding policy one in the Eagle Area Community Plan states concentrate development in and around the Town of Eagle. Maintain the existing small-town, non-resort atmosphere ofthe Town, require development proposals to follow the community's vision and its character and to maintain its size and current pace of growth. There were several implementing actions recommended in the plan that were specifically written to ensure that the content of the guiding policy was met. The first action states, maintain existing resource zoning that limits development to no more than one unit per 35 acres plus one caretaker unit in the Brush Creek valley. Mr. Sands asked did it make an exception for golf course rural residential developments or even resorts? Ms. Bethel stated absolutely no exceptions. The implementing action was clearly written without exceptions. There was a recommendation to explore a variety of tools such as clustering, large lot zoning, to encourage movement of the development potential into those areas or land immediately adjacent to the Town. But importantly for the Frost Creek proposal, the character of the proposed development and the location of that is significantly different than what the character would be if they had existing resource zoning or if that existing resource zoning were maintained. The intent of this recommendation was to encourage these higher densities, which they really consider one unit on what was it 3.7 acres to be a higher density. They went to the Town in order to preserve the more rural and agricultural areas farther up Brush Creek. And to ensure that new development is an integral part of Town and not an isolated stand alone entity. Mr. Sands states so isolated stand alone developments, even with a golf course, were to be prohibited under these policies and implementing guidelines. 42 10-17-2000 Ms. Bethel stated that's true. And I just want to read one important sentence on page 32 of the plan. The most critical ingredients of the future land use plan are the preliminary growth, community growth boundaries and the open space conservation techniques that will provide the County and its residents with tools that will preserve the small town character of the area. So if there is any question there are all these policies in the plan and they are all created equal. That sentence would hopefully clarify the importance of locating future growth adjacent to the Town within the community growth boundaries. Mr. Sands asked in her professional opinion, if that plan does not agree with Terrill Knight's testimony that policies regarding environmental matters, pedestrian and bicycle access, some of those other factors he wanted to focus on were more important than the growth boundaries. Ms. Bethel stated in her opinion she would say the most critical ingredient in the plan is the location of growth. There was another implementing action under that same guiding policy that stated a community growth boundary around the Town of Eagle that defines the geographic limits of development at urban densities with urban uses. This is to encourage development to happen contiguous to the existing development or developed portions of the Town and to preserve the areas outside of the boundary for open space and agricultural uses. If you were to ask, based on that guiding policy, she would say that the project does not propose to concentrate development around the Town. Nor does it promote a small town non-resort atmosphere. It's clearly a stand alone rural residential golf community that would not be a contiguous, integral part of the community . We spent hours, days, talking about small town character. Guiding policy 2, maintain traditional rural, small town again, development patterns and architectural style in keeping with the existing character of Town. The 4th implementing action listed under this policy states extend the existing grid pattern of land use. The intent of this recommendation is to promote the small town development pattern found in the central portion of Eagle. The layout and pattern ofthe proposed project is clearly not consistent with this recommendation. In fact, it's perhaps the antithesis as I say of what was anticipated by this policy. It is a lower density, stand alone community that contains few design elements perhaps that are consistent with the small town character ofthe Town of Eagle. The third policy example is the first guiding policy under open space and recreation. Ms. Bethel stated it is in the body of the document under open space and recreation. She stated guiding policy one, protect the Brush Creek valley and the Castle Peak area from being broken up into small development parcels. Preserve open space throughout the study area. The intent of the policy just read was to prevent a checker board pattern of development in the Brush Creek valley. Such a pattern prevents the preservation of open space and results in poorly planned development in many cases. They believe that the Frost Creek plan at a density of 3.7 acres per unit does not meet this guiding policy. Under economic development, guiding policy number one, take steps to diverse the local economy. And it's interesting, it's almost five years later, four years since the plan was written, that policy is very much alive and well today, if you look at the jobs that exist here in Eagle. They believe that the jobs generated by this Frost Creek project would not help to diversify Eagle's economy. In fact, it would generate a significant number of service sector jobs which make up the bulk of Eagle County's existing employment base. Also the proposed commercial area, though small in square footage, is standing alone and would not contribute to downtown Eagle's economic vitality. The fifth guiding policy, is affordable housing. Guiding policy number one, provide a variety of housing opportunities in the study area that are for the permanent population. She did not see any affordable housing presented in that plan. Under circulation and transportation, guiding policy one, develop a circulation and transportation system of roads, pedestrian and bicycle paths that will provide for safe and convenient movement of goods and people within Eagle and the surrounding area. The location of the project with the separation of uses and no alternative connection other than the roadway system to the Town will promote the use ofthe car which is directly counter to what the community plan is attempting to achieve. Additionally, few connections are really provided to the Town which enforces the 43 10-17-2000 idea that this is very much a stand alone project. Mr. Sands stated in summary, then, even putting the best light possible on the Frost Creek application, the kind of emphasis Mr. Knight gave during his testimony, do you believe there is any conceivable way this Frost Creek PUD could in fact comply with the Eagle Area Community Plan? Mr. Bethel stated she is hoping she is being very clear, because she feels so strongly about this. And she hopes experience shows they work with Towns like Eagle all over Colorado and the west. If Frost Creek was the most extraordinary design she had ever seen and if every lot was laid out with the utmost care for the environment and it was the most amazing thing she had ever laid her eyes on, it still is in such contrast to the passion of the people of Eagle in terms of its location, it doesn't meet your Towns people's view of what was going to happen in this valley. At the meetings there were times when they had 150, people sitting in the church generating discussion regarding this, and this plan really had so much attention from so many people that to see a project that's located this far up the Brush Creek valley, not contiguous to Town, she would think would alarm many people that were very supportive of or involved in creating of the Eagle Area Community Plan. Mr. Sands stated she indicated in her testimony she had also reviewed the original County Master Plan and specific the Future Land Use Map, FLUM and table 20 which describes the uses on that FLUM. Could she give her comments? They've previously established, that the Frost Creek is located in this rural designated area. They know there is an asterisk there that they will hear more testimony about. But what is her understanding of what is allowed and not allowed in the rural designation on the Future Land Use Map? Ms. Bethel stated first she has to say that she listened to the earlier testimony that said that the Eagle Area Community Plan amended this plan. So that's the first thing that comes to my mind. But to answer the question, when she looks at this table, under criteria if you go across the top and you see, if you look for the rural, it's page 282 in the County Master Plan. Under criteria it says existing season districts which may fit with this land designation. And she believes the operative word here is existing. Then you go across to rural, and under rural you see R, R L, and A R. Now, she takes that to mean existing season districts which may fit within this land designation. So she thinks that says that this isn't an existing season district, so why is she not just looking at rural? And if she was going to read it a different way and maybe she doesn't understand it, but if it was to read a different way, she doesn't see PUD under there where she does under resort and under countryside. She doesn't see PUD under rural. Mr. Sands stated he heard an interpretation from the County Attorney that, the PUD would fit. But under community center, they see PUD specifically listed. Mr. Fritze stated he didn't interpret anything. Mr. Sands stated ifhe is in error, he's sorry. Somebody in the earlier stages of the proceeding interpreting this table, the question came up was the PUD permitted under the rural category. Perhaps it wasn't him, perhaps it was one of the applicant's witness. But his question to the witness is, under community center they see PUD. Under rural center they see PUD. Under resort they see PUD and under countryside they see lots of PUDs there but no PUD under rural. What significance do you think that has in your opinion? Ms. Bethel stated she is going back to existing and doesn't think this is existing. But even if she didn't read that, she would say if it's not located under rural, and she is just a planner. She didn't write this plan, but she would probably be here with a proposal so she would have to be interpreting it, that there wasn't PUDs under rural. That's how she would interpret it. Mr. Sands stated and then when you go to the next category under the criteria column and it says expected dwelling unit density range, and over to the rural column, one dwelling per unit per 35 or more acres. What does the word expected dwelling unit density mean to her? Ms. Bethel stated she plans a lot of developments, so she's on both sides of the table, and it means that she should plan a one unit per 35 dwelling unit project and she would probably put some caretaker units in there, but that's how she would interpret it. 44 to-17 -2000 Mr. Sands stated you would interpret it to mean anything following the adoption of this plan, any new zoning, new development, would have to abide by the one unit per 35 acre limitation. Ms. Bethel stated she would. Commissioner Phillips asked if Ms. Bethel had testified during the Planning Commission hearing for the 1041 of Frost Creek that was approved about a month ago? Ms. Bethel stated she did not testify. Commissioner Phillips asked has she ever been involved in another area plan that included a 17-mile plan instead of just the 3 area plan? Ms. Bethel stated Chaffee County was larger than 17 miles. Grand County she worked peripherally on. Commissioner Phillips stated so you did an entire County plan, not just a Town community plan. Ms. Bethel answered yes. But Gunnison's was a 3-mile plan so she has done a whole variety. Commissioner Phillips stated so since this plan was drafted in 1996, and that was prior to the Town of Eagle approving Eagle Ranch, and in her mind they have chosen the direction in which they want to grow. She doesn't know that her focus would have been any different, but she thinks there is time for amendments and also would agree that as the Resolution says, it's hereby adopted as a Master Plan guide and an advisory tool? Ms. Bethel stated it was her understanding that when you write a plan and it's adopted by ordinance, it becomes something more than guidance. Commissioner Phillips stated she was reading from the Resolution not an ordinance that was adopted by the Planning Commission. Ms. Bethel stated if you look at the growth boundary map it also shows growth going up Castle Peak to the north and it shows growth going out to the east where much of the industrial park, Chambers Road, that has grown as well. So it wasn't only targeting Brush Creek. It went out in really three directions. So they could have actually quite dense development to the north of Town. The growth boundary went out maybe a half to three-quarters of a mile. They could see some significant development there. Commissioner Phillips stated she recognizes that could possibly happen, but also recognizes that the Town of Eagle has chosen for it to grow up Brush Creek through the approval of that subdivision. Those were all 35-acre parcels on the Castle Peak area that didn't come into anyone to ask permission. Ms. Bethel stated was the Eagle Ranch property contiguous to Town? Commissioner Phillips stated it was out there and it will be like everything else when it starts to grow, it will be in this way, yes. Ms. Bethel stated she just wants to restate she believes the Eagle Ranch property was contiguous to Town. Commissioner Phillips stated the Eagle Ranch probably wasn't even a figment of his imagination at the time. So it had not come in as a plan or anything. Chairman Stone stated she just focused on several of those guiding principles. Does she think that affordable housing should be pretty ardently adhered to, the recommendations? Ms. Bethel answered yes. Mr. Sands asked in her professional opinion, does she find it unusual or improper for a County Subarea Plan, and we need to remember the Eagle Area Plan was not merely a Town plan, but a County plan as well. Mr. Sands stated it was adopted as a County Subarea Plan. He asked if Ms. Bethel finds it unusual that a County Subarea Plan would encompass the area, the amount of miles per square mile area that ultimately the Eagle plan did address? Ms. Bethel stated in her opinion, the Town and County were to be commended for working together. Quite often Towns and counties don't work together and what happens is leap development, where a development that cannot be accepted by the Town jumps into the County. And we see it all 45 10-17-2000 over the place. We felt terrific that the Town and County got together to agree on the quality and location of development. Mr. Sands stated if he understands her testimony, the primary purpose of this plan was to avoid leap frog development and require development contiguous adjoining to the Eagle Town boundaries. Ms. Bethel answered yes. Mr. Sands asked were the boundaries, the range of the plan, one of the first things discussed and agreed upon? Ms. Bethel answered absolutely. They took out a big marker and had a plan and tried to make sure they were respectful of where development could happen, and that's why the whole Brush Creek area was included in the boundary ofthis study. Mr. Sands stated and agreed upon by County appointees as well as Town appointees. Ms. Bethel stated half of the sounding Board was appointed by the Town and half was appointed by the County. Mr. Sands asked Donald Elliot, Vice President of Clarion & Associates, to speak to the Colorado Supreme Court case Beaver Meadows versus Larimer County was all about. Mr. Elliot stated Larimer County in that case reviewed a PUD. As a matter of fact two, relevant cases come out of Larimer County. They were concerned that it was too far away from existing centers of development and that there really ought to be some provision of emergency medical services and a road paved into the development. They opposed those conditions. The applicant rejected them and felt they should get approval without those conditions. The Supreme Court held that Larimer County had the power to impose those conditions, but only if it had adopted them ahead of time as part of it's regulations and it also held that PUDs must be consistent with the land use plan, that for purposes of PUDs, land use plans and Master Plans, Town plans are not advisory, that the state law and neighboring PUDs to be brought forward requires them to be consistent with comprehensive plans. Mr. Sands stated the planned unit development act of 1972? Mr. Elliot answered that's right. Mr. Sands asked Title 24? Mr. Elliot answered yes. Mr. Sands asked has he participated in the drafting or review of Master Plans and comprehensive plans? Mr. Elliot answered yes, he has participated in several. Mr. Sands asked if Mr. Elliot could describe generally the nature and purposes of a comprehensive plan or Master Plan. Mr. Elliot stated under Colorado law a comp plan and Master Plan, and those terms are often used interchangeably in the law, provide for future growth and development of a community. They have heard the word guide used a lot today and he thinks in the acts which it begins, it is a guide. It is not a binding document. It tries to bring together all relevant information about the area and about the community goals and objectives and development set of policies that will lead them towards a preferred direction. Mr. Sands stated they are right, they have heard a lot about Master Plans being advisory or a guide or it's okay if they come close or fit some ofthe criteria but not others. Could they explain the understanding under Colorado law as to when a Master Plan is advisory and when a Master Plan is legally binding on a governing body. Mr. Elliot stated Master Plans in Colorado are generally advisory unless the local government act to make them binding. The leading case is from the neighboring County of Summit. Summit County adopted a plan, the landowner sued claiming it had taken their property rights and the County defended saying, hey, it's just a plan, it's a guiding document and the court held a plan is a plan. However, and importantly, the Colorado General Assembly had an opportunity to think about this a couple of years ago because a bill was introduced that ended up part of an exhibit here, reading that Master Plans are 46 10-17-2000 advisory. So now the Bold case has been codified in Colorado law. Mr. Sands asked about Exhibit E-32 and ifMr. Elliot recognized what those are. Mr. Elliot stated this is a portion of Colorado revised statutes 30-28-106 which is the procedure for adoption of a Master Plan for counties. Mr. Sands stated he indicated that the legislature did amend those statutes and put in some language about Master Plans being advisory. Mr. Elliot stated he was asked to review this legislation when it came through, and as it was introduced it contained two sentences. The first one said Master Plans in Colorado are advisory. And the second sentence said a Master Plan shall not be used as grounds to turn down a development application. And in the course of debate over that bill, that second sentence was struck, was taken out. So the legislature in 1997 considered whether it meant that Master Plans were purely advisory and could not be used as a grounds to turn down development and affirmatively decided that was not what they wanted to do because they took that sentence out of the draft bill and left it as one sentence. Mr. Sands asked about Exhibit E 37. Mr. Elliot stated this is a 1996 Colorado Supreme Court case called Larimer County versus Congresser. Mr. Sands asked would he state what that case is about and why it is relevant to these proceedings. Mr. Elliot stated the Congresser case was the second leading case on this matter and happens to come out of Larimer County. In that case the County had adopted subdivision regulations and had adopted a provision that all subdivisions must be consistent with their comp plan. An applicant brought in a PUD that complied with it some, but not all of them, namely, it complied with the minimum lot size requirements but the Planning Commission deemed that it was a suburban development in an area where the comp plan said there was going to be rural development. The Planning Commission denied the subdivision. The County Commissioners also denied it. The applicant went to court over the principle that the consistency with the Master Plan was intended to be only advisory and it was not a binding part of the review of a development proposal. And the Supreme Court held that by adding the provision to its subdivision regulations requiring consistency with the Master Plan, Larimer County had codified it, that that plan was no longer a guide for Larimer County. It was part ofthe law. By itself it was a plan, but provided it was specific enough to guide people as to what it required, that by adding the subdivision regulations, they had made that plan binding and needed to comply with its provisions and the applicant needed to and the County was justified in turning down the development, even though it met some of the criteria because it didn't meet the fundamental character issue in the County plan. Mr. Sands asked if he had a chance to review the Eagle Area Community Plan Exhibit E-6? Mr. Elliot answered yes. Mr. Sands asked ifhe had reviewed the County Master Plan, Exhibit E-5? Mr. Elliot answered yes. Mr. Sands stated please turn your attention to Exhibit E- 3 of the exhibit book. Do you recognize what that is? Mr. Elliot stated it appears to be the Resolution of the Eagle County Planning Commission approving the Eagle County Master Plan. Mr. Sands asked ifhe had carefully examined the language that is contained in that Resolution regarding this adoption? Mr. Elliot answered yes. Mr. Sands stated if you would turn to Exhibit E-4. Do you recognize what that is? Mr. Elliot stated this appears to be Resolution 96-04, the Resolution of Eagle County Planning Commission adopting the Eagle Area Community Plan. Mr. Sand stated in your view, are you generally familiar with the FLUM, the Future Land Use Map that is contained within that County Master Plan? 47 10-17-2000 Mr. Elliot answered yes. Mr. Sands asked have you reviewed the Frost Creek 1041 application which is the subject of this hearing? Mr. Elliot answered yes. Mr. Sands asked are you familiar with chapter 6 of the Eagle County Land Use Regulations concerning areas and activities of state interest? Mr. Elliot stated yes, they have been referring to it a lot today. Mr. Sands asked have you specifically had a chance to look at 6.03.15 1 B, the language that says the proposed development does not conflict with an approved local Master Plan, and subsection 2 of that same section that reads the permit shall be denied if the applicant fails to satisfy all of the criteria outlined in 6.03.15 I? Mr. Elliot answered yes. Mr. Sands stated in light of what you have just testified to regarding the Congresser case, do you have an opinion as to whether the language of these 1041 regulations has codified the Master Plan, the Eagle Area Community Plan, and made it a part of the binding law of this County? Mr. Elliot stated yes, just as Larimer County had made their plan binding upon them through their subdivision regulations, Eagle County has made its adopted plan binding upon them through these 1041 regulations. Mr. Sands asked do you have a professional opinion as to whether the proposed Frost Creek development and accompanying wastewater system and water system conflict with the Eagle Area Community Plan? Mr. Elliot stated he believes it does conflict with the adopted plan. He stated he would mention two things. One is that he agrees with Ms. Bethel wholeheartedly that all elements of a proposed PUD are not of equal importance. And they can tell in the plans which ones are most important to the communities. And where it is, what it is, and how big it is are really the three items upon which most land use proposals and zoning codes and development regulations revolve. So he agrees with her that this one is not in the right place, not the right size, not the right character that the plan in mind and was required. He stated he would mention one other thing, and that is that the real question becomes, since she believes that the County has made the Eagle Area Community Plan and the County Plan binding upon them in this way. The question is, how much flexibility is there to interpret the plan and what it means? Clearly elected officials and planning staff and planning Commissions are entitled to interpret what the plan means. He thinks Ms. Bethel has helped them understand about what clearly was the intent among the many people who worked on it. But he wants to point out a couple of things. In its current form, if, in fact, the applicant had brought in a proposal that met the 35-acre requirement, this proposal would contain 31 lots. There is an example in the Eagle Area Master Plan, the Eagle Area Community Plan about clustering because the language does say unless you use clustering or TDRs and other things, it doesn't say PUD. The clustering example is someone who is entitled to 4 lots on 40 acres might get. The example was 50 percent increase in density for protecting good open space. So that's a 50 percent that clearly was in the minds of planners in terms of flexibility, a range of development densities which would be envisioned because it was discussed in the plan. Another benchmark might be the County's own regulations on clustering, because this is a resource planning area. They have heard testimony today that might be consistent with some zone districts other than R, like AR or RM. If you go up to the AR zone district and look at the clustering bonuses, it says you might get up to one unit per 8 acres. They might let you go from one to 35 to one in 8 arguing that maybe it was appropriate to use that zone designation with something that was shown as R on the plan. Say if 31 units which I think Ms. Bethel was right, was in the public's mind, you have an example in the text that might lead you to 47. A 50 percent increase would be 47 units you have the County zone clustering requirements that would say we can get to 138 units, but this proposal is asking for more than twice what he would say is the highest number that you could find a benchmark for in any of the County's plans and zoning regulations when 48 10-17-2000 you talk about density. If you were to make all those assumptions, you might say, well, maybe they had it all in their mind and they were thinking 138, but we've got 300 here, more than twice and he pointed out when you look at the total of 3.7 acres per unit here what it amounts to is 10 times more dense, what it amounts to is a 900 percent clustering bonus. It's 9 units of bonus for every unit you would have had in the current zoning in return for clustering and he has not been able to find anything in either of these adopted plans or the County's own regulations which suggest that a 900 percent bonus was in anybody's mind as a clustering bonus. Mr. Sands stated now, invite Exhibits is Exhibit E-ll that's a Resolution of the County Commissioners approving the PUD sketch plan for Frost Creek. Also in the Exhibits admitted is a transcript of the motion that was made regarding that Resolution. Paraphrasing, it indicates that even if Frost Creek doesn't comply with the Master Plan or the community plan, there had been changed circumstances and that was somehow grounds for approving a PUD. Mr. Sands asked without amending the Master Plan, are you aware of anything in the County's regulations, state law, case law that allows changed conditions to be a reason to grant a PUD, a development that does not comply with the Master Plan either under 1041 or applicable PUD law? Mr. Elliot stated no. Colorado's PUD, the principle of changed circumstances which is often used as a ground for changing existing zoning or for changing an existing plan. Sometimes it's used for approving zoning that is inconsistent with generally an old out of date plan. But there are two circumstances where it doesn't appear to apply and one is the PUDs. There is no language in the enabling act, the state enabling act for PUDs saying that PUDs must conform with adopted Master Plans or be justified by changed circumstances. It doesn't say that. It says that must be consistent with adopted Master Plans. The County's own 1041 regulations which we're dealing with here, item B, don't say that it doesn't conflict with the comp plan or is justified by changed circumstances. It says it's got to conform to the Master Plan. So I do not think changed circumstances is a concept that applies to this case. Mr. Sands stated there has been a lot of discussion, perhaps some confusion as to in the event of a conflict which controls, the area community plan, the FLUM in the County Master Plan, and then in regard to that FLUM, what about this asterisk that foot note says designates proposed resort with sketch plan approval. He knows you have had an opportunity to review the documents, that asterisk, some information about the sketch plan that note refers to. Give us your opinions and conclusions regarding the status of the two plans. How do we read it together and what is that footnote, that asterisk still relevant in any sense at this point in time today? Mr. Elliot stated the process that was used by the County here is frankly one that's been used in many other situations. He was involved in a similar situation in Routt County where the County is making a County-wide Master Plan. And either all along or in the course of that it becomes clear you need to make a more detailed plan for a specific area of the County. What usually happens is that you adopt the Master Plan going into as much detail as you could reach consensus on for the whole County and you proceed to go forward and adopt a Subarea Plan or in Denver they are called neighborhood plans. But that when the people most affected by those areas reach a conclusion, reach consensus, you go ahead and adopt that Subarea Plan, that community plan, that neighborhood plan as an amendment to your comp plan. That's the practice around Colorado. He was actually pleased to see that the Planning Commission appears to have followed that practice here because he thinks there is very little doubt what was intended. In Resolution 96-04, Exhibit E-4, the second actual action, the Resolution after the where as clauses, the Planning Commission's actual language was that the Eagle County Master Plan adopted by Resolution 96-01 is hereby further amended to incorporate therein by this reference the Eagle Area Community Plan described in Exhibit A attached here to as if the same were set forth in full herein. Effectively, the provisions of the Eagle Area Community Plan were grafted into and integrated into the County plan. Now, what they all hope is that when people do that, you don't obviously create a situation where there are flat inconsistencies. But ifthere were, and he doesn't opine 49 10-17-2000 that there are, he thinks this language would make it pretty clear that this later adoption of an amendment of the earlier County Plan effectively overrode anything inconsistent in the Eagle County plan, and that clearly is the practice around the state that when you have got a more specific statement on a later amendment, given the same topics pick, it prevails. Ms. Bethel has mentioned the discussions of resort that came up in the course of the Frost Creek and Brush Creek discussions. It was not on the land use plan. It is not on the land use plan map in the Eagle Area Community Plan. And he concludes that reflected a consensus that upon reflection the people most involved in that balloting did not believe there was a pending sketch plan that was still valid and if there was didn't choose to recognize it on this plan. Mr. Sands asked do plans have any sort of vested rights that haven't been granted to the best of his knowledge? Mr. Elliot stated no, not as a general rule oflaw and not as a matter of Colorado statutory law. If Eagle County had adopted a Resolution saying that they wanted to vest part of their code saying that they wanted to vest sketch plans, first of all, it would be a very unusual position for a government to take. Most governments try to vest later on. But if they had, it could have been vested, but to the best of his knowledge, they are not vested. Mr. Sands asked if he had an opportunity to review Exhibit E 28, a letter from Kummer development withdrawing the sketch plan? Mr. Elliot answered yes. Mr. Sands stated even if at one point in time the FLUM was intended to recognize, to grandfather in as an exception a resort based on the sketch plan that had been approved, does he believe that grand fathering terminated when the sketch plan was withdrawn? Mr. Elliot stated if this letter was intended to do withdraw the sketch plan that we're talking about, which he can't tell from the letter, it doesn't refer to which one, it just withdraws the sketch plan, also requesting a refund. If it was referring to the one which was the source of the asterisk, he sees it as a confirmation of what had already been done. The applicant was recognizing that a community plan had been adopted, it amended the comp plan. Eagle had gone on record that their plans for Brush Creek valley did not include a resort. Whatever the status was and this withdrew that sketch plan. However, they heard this morning that the letter may not apply and if it doesn't apply to that, he doesn't know what it does apply to. Mr. Sands stated they have heard some concern that the Eagle Area Community Plan covered a wide area for 17 miles, whatever it is exactly. Is that an unusual area to address in a County subarea Master Plan based on his training, knowledge, and experience? Mr. Elliot stated he does not think so. He was involved in one in Routt County last year which he believes covered 12 or 13 square miles. The issue is not a practice of the planning profession. The issue that planners want to see is the relevant area included in the plan. And he thinks an effort was made to try to include the relevant area around the Town of Eagle. In some small communities that area could be very small. There could be very little undeveloped land or there could be a lot of land. He doesn't think it's an unusual situation. Mr. Sands stated ifhe understands the earlier testimony, in his professional opinion, does he not believe the asterisk today can in any way be used to justify approval of Frost Creek or approval of this 1041 permit. Mr. Elliot stated he does not think so. It seems clear if the letter refers to that, it was withdrawn. If not, you have an adopted plan, adopted later than the FLUM, not putting that asterisk on there. So I don't know what the source of any remaining life in that asterisk would be. Mr. Sands stated now, speaking of the FLUM, table 20 on that FLUM, there seems to be some differences as to what is permitted even under the FLUM, if it still has any relevance. We have heard the applicant indicate that for instance, I didn't quite understand somehow they weren't bound by the one per 35-unit requirement. That somehow PUD should be an exception to all of that. What is his understanding of what the County Master Plan was attempting to do here with the FLUM and the matrix 50 10-17-2000 we see in table 20? Mr. Elliot stated his opinion is he agrees with the reading that Ms. Bethel explained. It appears to him and he has seen this in other plans, because of not doing a zoning document at the time you do a plan, you try to explain how the concepts, the land use concepts and designations that you have reached closure on could be reflected, what tools would be appropriate to use. He read that top line as being we anticipate that the area designated as rural within this plan will be zoned in the end RRL, or AR. Since 4 other columns include PUDs and this does not he would conclude that the writer of this says we don't expect to see development come forward in the rural areas for PUDs. Mr. Sands stated if he understood the applicant correctly, they indicated they had a density for rural residential which he sees noted in countryside designation, not the rural designation. Mr. Elliot stated in the countryside designation there is a comment that the expected dwelling unit density range might be in the range of one to two acres all the way to one to 35 acres. Yeah, this is in that range. It's 3.7 acres per unit. It is much closer to countryside designation than a rural decision nation. Mr. Sands stated they have been present virtually all day today and heard the applicant's entire case. They chose to present under this criteria 6.03.151 B dealing with conflict with the Master Plans. He has heard Ms. Bethel's testimony. While there is certainly more testimony to come from the County staff on this matter. Based on what he has heard today, as of now, does he believe the evidence in any way could permit this County Board to find there is no conflict with the Master Plan and approval the 1041 permit at least as to that one criteria? Mr. Elliot stated no, he does not think there is a way. Mr. Sands asked him to explain why. Mr. Elliot stated you've got a plan which was adopted, became the County wide plan, then you have the community plan explicitly saying we are amending, we're just going to slide these pages in there, we integrated the plan with the other plan. Those are the adopted local Master Plans. They are not only a Master Plan, but it's been clearly thought through the local level and you amended it to include specifics about this Brush Creek area. That's got to be the local Master Plan which is referred to in the 1041 regulations. Furthermore, the 1041 regulations don't allow changed circumstances. There is no provision there. It's just very simple. It is 10 times as dense. It's noncontiguous and it's a rural residential development instead of a resource development. It's kind of three strikes you're out. Those are the three fundamental things that you get. You've got to have some of those going for you to begin to talk about things like trail heads and details of circulation systems. So he thinks the applicant has gone out of their way to try to meet many of the criteria, but the fundamental ones, the ones that clearly were foremost in the minds of the drafters in adopting the community plan, it doesn't meet those. Commissioner Phillips asked was he here and testified during the Planning Commission hearing of the 1041, this one that we're hearing on Frost Creek, when the Planning Commission approved this 1041? Mr. Elliot stated no he was not. Commissioner Phillips stated then can he tell her why you or Ms. Bethel, since this is such a full-blown hearing today, weren't here to also present this testimony during that 1041 hearing of the Planning Commission? Mr. Elliot stated he was not invited to be here. Commissioner Phillips stated she was going to ask then if none of this information has been heard by the Planning Commission, it leads her to believe that maybe they shouldn't be hearing it now either, because the Planning Commission has already approved this without all this testimony that they are now being given to make a decision on the same 1041 that they have already approved. Mr. Sands stated he can respond to that by indicating Mr. Powell did appear at the Planning Commission. Commissioner Phillips stated he did, but none of these witnesses or any of their people that have 51 10-17-2000 come. That's true, she knows she was there. Mr. Sands stated and raised actually the same issues and concerns. They are simply going into them with more detail at this hearing. The reason they are going into more detail at this hearing, the County Commissioners made the decision. The County Planning Commission is merely an advisory body that provides recommendations to them but the buck stops here with this Board of County Commissioners and that's where they felt the most detailed evidence and testimony should be presented. Commissioner Phillips asked if they would agree then it was the Planning Commission that also approved the Eagle Area Plan and the Board of County Commissioners did not? Mr. Sands stated state law says the buck stops with them when it comes to Master Plans. Commissioner Phillips asked if that was true. Mr. Sands asked under state law they have already admitted the statutes and have identified them, they are Exhibits. Mr. Sands asked under State Statutes regarding planning who has final authority to adopt Master Plans? Mr. Elliot stated the Planning Commission does for the County. Mr. Sands stated with that, Mr. Chairman, we have taken our witnesses out of order and we would suggest we now go back to the pre-hearing order and pick up with Town staff. Mr. Sands asked if he could have clarification of an earlier ruling? They indicated they want them to prepare a written offer of proof regarding the consolidation issue. Chairman Stone stated no, it was our hearing procedures, let me just read it for you. It's objections to tender evidence. At one point in time in their testimony they wanted to have some evidence included in the record. Mr. Sands stated they objected to the Parsons study, that's correct. Chairman Stone stated if evidence is to be excluded by the Board, an offer of proof will be entertained. And that's the written offer of pro oft hat Mr. Fritze, I believe, was referring to. Mr. Fritze stated it's with regard to evidence concerning The Ranch which they felt was being excluded by the ruling that they named two people that they wanted to testify. Mr. Sands stated because our staffs may be burning the midnight oil tonight we just wanted to get a clarification as to what that should be and what the deadlines for that would be. Mr. Fritze stated the deadline was to be the conclusion of the hearing which means if we finish by noon tomorrow, then noon tomorrow is when it is. Mr. Sands stated because obviously they have to be here in the hearing, and they can do so much after hours and are prepared to work late, I'm sure, they've got to be here at 8 o'clock in the morning. Is there any way you could give us more time to submit that? Chairman Stone stated he would rather not just because he would rather have everything to make a decision upon at the same time, and they seem to be pretty intent on having that evidence included in the record. So he would like to have it as Mr. Fritze just stated at the conclusion ofthe hearing. Mr. Fritze stated they were prepared to make it right then, and all they are asking is that put in writing for the economy of time. Mr. Sands stated right, it's just a matter of dictating it and typing it, that kind of thing. Okay, thank you Mr. Chairman. He called on Ray Merry, Environmental Health Officer for Eagle County to testify . Mr. Merry, stated as housekeeping item, on the agenda, they will note two companion files that accompany a 1041-0030, and those are entitled SSA-0008 and SSA-0009. The reason that they see those two companion files on the agenda is because of the splitting out between who makes what findings on lift stations and who makes what findings on wastewater facilities associated with the state site application process. And the action that they will be asked to take after the 1041 hearing has been concluded will be to take action on file SSA-0008, which is the wastewater facility, and they will be further advised at that time what sort of action is requested of them, but that file is the companion for the 52 10-17-2000 wastewater facility. Lift stations stop at the Planning Commission level. He just wanted to be clear that is why you see these two numbers. Staffno longer separates them in that fashion. We didn't see a reason to, so he thought he would be clear with that. The other thing he would like to mention is that the conduct of the permit hearing looking at 6.01.25 for a recommendation from the Planning Commission. Staff is not going to be providing additional evidence for the permit authority, but they feel their duty to give their essence of what was discussed at the Planning Commission level. And they have received a copy of staff report which is also the same staff report that's on the table. The Planning Commission concluded that with the exception of one negative finding, all of staffs negative findings were attributable to the Town of Eagle's refusal to serve the development beyond the 200 taps owned by the developer. The one finding or approval criteria that could not be made positive by the Planning Commission without conditioning was the lack of an applicant or the applicant's lack of a court approved water augmentation plan for their own water supply system. The Planning Commission's rationale for reversing staffs negative findings mostly regarding duplication of services, undue financial burden to taxpayers by proliferation of special district and 208 plan conformity centered upon the Town of Eagle's having created a situation by refusing to provide water and sewer service for the development. The Planning Commission chose to treat it differently concluding that there is no existing facility in the area for the developer to consider using regardless of excess capacity being present in the Town's water and sewer infrastructure. Therefore, no duplication or proliferation issues to discuss. That's what the Planning Commission said. Therefore, the Planning Commission passed a motion for approval of the application as submitted by the 4 to 1 vote with one abstaining conditioned upon the applicant's securing a court approved water augmentation plan to allow for their own water treatment facility. Quite often as you have seen in recent 1041 permit applications, and clearly what we're seeing today is the parties needing to provide evidence to the permit authority in order to make a decision. Therefore, when staff does a staff report, quite often all they have to work with is the application itself and any evidence submitted. You may recall a very recent 1041 permit application in which additional evidence was provided at the hearing, which did change staffs recommendation between the Planning Commission and the permit authority because of additional information that was presented to the Planning Commission. And what we did is, we captured that recommendation within the essence of what happened at the Planning Commission meeting. Therefore, the staffs recommendation that is included in the staff report says denial because the time at which the staff report was prepared was for the Planning Commission hearing. But it also further says, if the applicant can demonstrate through sufficient evidence to support approval of all 1041 criteria, then the permit authority may consider approval. Findings to support staffs recommendation are detailed in the original staff report. The rationale basically on a nontechnical level is that the original permit as submitted to staff failed to address all of the approval criteria satisfactorily. Mainly that the applicant did not have and does not have a court approved water augmentation plan for their new water treatment system. And staff feels that there are existing facilities both water and sewer available with sufficient capacity to serve Frost Creek PUD. The construction of new facilities represents a duplication of services and proliferation of special districts. The need for a wastewater treatment at this location appears to be based on previous agreement and not scientific evidence of stream depletion causing aquatic live impacts. Further more the presence of a lift station creates an ongoing financial burden to district taxpayers. Less risk and expense would accrue to the service district if wastewater treatment plant facilities were located to accept all raw sewage via gravity flow, while piping treated outgoing to the appropriate discharge point. Mr. Ferguson stated his questions relate to the water augmentation plan. Could the concern that the planning staff has with respect to whether or not the applied for plans have been or not be handled by a condition under the approval of the 1041? Mr. Merry stated yes. It's my opinion that the Planning Commission can make a recommendation to the permit authority in any fashion that it chooses to. 53 10-17-2000 Mr. Sands stated just a point of order, he has some extensive questioning for Mr. Merry. Questioning probably exceeds the scope of what he talked about. He can either go ahead and ask all his questions now, or defer and recall Mr. Merry as their own witness at a later point. Mr. Fritze stated they can do whatever cross you want of his testimony and then you are free to recall him in your list of witnesses. They have indicated that he would be available. Mr. Sands stated today you really only addressed your staff memorandum that he was handed just now, and he is not sure he sees a date on it. Will this be made part of the record? Mr. Fritze stated yes, it will. Mr. Sands stated he would ask that the memo be made part of the official record. He will only ask a few questions about the memorandum, and then go into our other questioning at a later point in time. On the first page under staff recommendation, rationale, he indicates staff believes there are existing water and sewer facilities available sufficient to serve Frost Creek PUD. The construction of new facilities do represent a duplication of services and a proliferation of special districts. That seems to be at odds, from what the Planning Commission found, and he has only read two pages out of 9. Could he explain why he disagrees with the Planning Commission regarding those matters and why he believes under the language of the 1041 permit criteria he finds there is duplication and that there are facilities available to serve the Frost Creek PUD. Mr. Merry answered yes. When staff puts its report together, it's based on the content of the application. We refer the application to several referral agents, and establish a recommendation to the Planning Commission based on referral comments primarily. And also review the application. The Town of Eagle's water treatment facility is adjacent to this site. We felt that could not be ignored. And in addition to the sewer facility, which we became aware was about three and a half miles from this project to the collector line in the Eagle Ranch project. Mr. Sands stated he pointed out earlier in his testimony that when they write a memorandum, they have to base it on the information they have available at the time. That's perfectly logical. And he indicated that sometimes such as in other permits that have been heard by this Board, other information comes available during hearings that alter the concerns because there is simply additional information there. Mr. Sands stated based upon anything you may have heard at the Planning Commission meeting, and I have seen you present during all of to day's hearing, so based on anything you have heard today that was presented in evidence by the applicant or by the Town of Eagle, has he heard anything to alter his personal professional opinion that existing water and sewer facilities are available with sufficient capacity to serve the Frost Creek PUD? Mr. Merry stated he has heard nothing to the contrary. Mr. Sands stated and similarly, based upon anything he may have heard at Planning Commission hearings, anything he has heard at today's hearing, and presented in evidence, has there been anything to lead him to change his opinion that the construction of new facilities representing duplication of services and a proliferation of special districts? Mr. Merry stated there has been nothing to the contrary. Mr. Sands stated based upon the evidence he heard at Planning Commission and presented by the applicant today as well as the Town of Eagle, has he heard anything that changes his personal professional opinion that the need for a wastewater treatment plant at this location appears to be based on previous agreements and not scientific evidence of stream depletion causing aquatic life impacts? Mr. Merry stated no, he has not heard anything to the contrary. Mr. Sands asked based upon the evidence that was presented at Planning Commission and presented up through the close of applicant's case, has he heard anything to alter his personal professional opinion that the presence of a lift station creates a financial burden to district taxpayers contrary to the criteria set out in 6.03.15? Mr. Merry stated he has heard nothing to the contrary. 54 10-17-2000 Mr. Sands stated at the time he wrote his memorandum for the Planning Commission, and he'll go into that much more when he is called as their witness, he had indicated that there was lack of information, detailed plans and specifications as required by County regulations. He also indicated there were significant concerns about lack of information from the northwest Colorado council of governments. He also indicated that there were concerns from the state division of water quality regarding lack of sufficient information. Since the writing of that memorandum, based on anything else that may have been filed with his office, anything that came in at Planning Commission or anything that was presented today, does that alter those concerns regarding the lack of information? Mr. Merry stated because those were based on referral comments, he thinks it would be more appropriate if the referral agents actually answered those questions. We have never received any additional information. He is aware of a June 26, 2000 report from Wright Water Engineers that was submitted to the Planning Commission regarding stream flows. But he still doesn't feel that would alter any of his opinions. Mr. Sands stated certainly County engineering is somebody who he works closely with, he has not learned anything from them that they are satisfied about the level of information that was provided in the application. Mr. Merry stated he has heard nothing. Mr. Ferguson asked are the existing water and sewer facilities that he has stated that are available with sufficient capacity to serve Frost Creek, do those facilities serve this area? Mr. Merry stated no, there is no service to this area. Mr. Ferguson stated from those facilities. Mr. Merry stated from any facilities. Mr. Ferguson stated with respect to the 201 facilities plan, the Town of Eagle with respect to wastewater treatment, is this property and this project outside of the planning area for that plan? Mr. Merry stated yes, he believes it is. Mr. Ferguson stated and while the construction is new, does he think because there are no other services in the area, there will be an indication of service if the water treatment plant and wastewater treatment plant are constructed as requested in the 1041 application? Mr. Merry stated in his personal, opinion, yes, he does believe there would be a duplication of serVIces. Mr. Ferguson stated but if the one service is not available, how would there be a duplication? It would be a duplication of facilities, but would there be a duplication of services? Mr. Merry stated he would say in light of the fact that the facilities provide similar services, there would still be a duplication of those. Mr. Ferguson stated even if the facilities are not available and do not serve the development area. Mr. Merry stated he believes he can see where he is going with it. If, from a logical standpoint, facilities are available with capacity, one would typically use those existing facilities. Ifthese facilities are not made available and access to these facilities is denied, then, of course, the only alternative would be to provide what water and wastewater services through your own facilities. That's the dilemma. Mr. Ferguson stated if the wastewater treatment plant discharge within the project site is viewed as protecting instream flow water rights of the Colorado Water Conservation Board, would that provide him with the evidence he needs with respect to will stream depletion not causing aquatic life impacts? Mr. Merry stated he is not sure he needs to be convinced relative to that particular information. Should that information have been available during the original staff report, saying that it's critical that withdrawal of water for 315 units is going to impact aquatic life and that wastewater needs to return specifically at this location, then he would have said it has to return to this location to be protective of aquatic life. He has not seen that evidence. Mr. Ferguson stated and if a decree was entered in a water rights case that the Colorado Water 55 10-17-2000 Conservation Board approved of that had those provisions in it, would that be of assistance to you? Mr. Merry stated that would be of assistance, yes. Mr. Ferguson stated with respect to the presence of such a lift station creating an ongoing financial burden to the district taxpayers, does the Town of Eagle wastewater treatment system have a lift station? Mr. Merry stated he does not know. Mr. Ferguson stated so you don't know whether or not the fact that ifit did have a lift station, whether that creates a financial burden for the Town of Eagle customers of the wastewater treatment facility . Mr. Merry stated he would say that in his experience of looking at development plans, that when one would contemplate wastewater treatment needs, they typically would locate a wastewater treatment facility at the lowest point of the project in order to avoid operating costs of a lift station in the future. Mr. Ferguson stated do you find that often in citing issues that the concerns of neighbors are taken into account? Mr. Merry answered yes. Mr. Ferguson stated and do you find that lift stations are often used in wastewater treatment systems? Mr. Merry stated he does not know about often. He thinks that he has seen lift stations for communities as they grow. That is correct. Mr. Sands stated Mr. Chairman, they will now proceed with the regular order of our case in chief. They will begin with an opening statement to be delivered by Willie Powell, Town manager of the Town of Eagle. Chairman Stone stated we've got about 13 before 6 o'clock. And it's probably just the way it's worked out. He would expect that they would want to refresh their memories tomorrow with what happened today. Mr. Sands stated he thinks it would be fine to break off at this point. Chairman Stone stated we'll go ahead and break off now and reconvene tomorrow morning at 8 o'clock. Mr. Fritze stated at 8:05 because the Board has one other item on its agenda. There being no further business to be brought before the Board the meeting was adjourned until October 18, 2000. Attest: Clerk to the Bo Ch~e.~ 56 10-17-2000