HomeMy WebLinkAboutMinutes 10/18/2000
PUBLIC HEARING
OCTOBER 18,2000
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:
Resolution 2000-143, Passenger Facility Charge
He stated the first item on the agenda today was a Resolution amending a Resolution concerning
passenger facilities charges.
Bob Loeffler, Deputy County Attorney, stated the Board adopted a passenger facilities charge in
1992 of$3.00, which was the charge allowed under federal law. This year the federal law was changed
to allow a charge of $4.50. The Airport uses the fees for various improvements at the Airport including
and the snowplow paying the bond principal on the terminal building. He stated they would recommend
that the maximum fee be raised to conform with what is allowed under federal law to $4.50 and they will
make application to the FAA to approve that change.
Commissioner Phillips moved to approve Resolution 2000-143, amending Resolution 92-209,
changing the rate ofthe passenger facility charge to $4.50.
Commissioner Gallagher seconded. The vote was declared unanimous.
1041-0030, SSA-0008, SSA-0009, Adams Rib Frost Creek
Chairman Stone stated the next matter was file numbers 1041-0030, SSA-0008 and SSA-0009,
Adams Rib Frost Creek. He stated this was a continuation from the hearing on October 17,2000.
Chairman Stone reviewed the hearing from yesterday. He asked Mr. Ferguson if Mr. Kummer
was going to be present today. He spoke to the accommodations by all parties.
Fred Kummer, applicant, arrived at the hearing.
Chairman Stone stated he was sorry that Mr. Kummer was not present yesterday and asked if
they intended a presentation from him.
Mr. Ferguson stated it is their intent to have Mr. Kummer provide a rebuttal statement after the
Town of Eagle's presentation.
Chairman Stone asked Mr. Sands ifhe was going to start out with the 1983 Agreement.
Mr. Sands stated they may call Mr. Kummer as a witness as they discuss the history.
Mr. Ferguson stated they anticipated calling him for rebuttal. He related they anticipated in
trying to stay with the pre-hearing order was once the Town had presented its case, then they would be
able to provide Mr. Kummer as a rebuttal witness. Not necessarily as a rebuttal witness, he would be
our witness, but we anticipate he would be more of a rebuttal witness, since we had closed our case,
assuming the Town is going to discuss history and we thought that would make sense from an order
standpoint as to when Mr. Kummer would provide his testimony.
Chairman Stone stated from what he briefly told them yesterday, they were going to start out by
talking about, the 1983 agreement, and the history of it. Perhaps that would be the time for Mr. Kummer
1
10-18-2000
to speak.
Mr. Sands stated that's correct. They anticipate even possibly calling Mr. Kummer as one of
their witnesses, as discussed yesterday.
Mr. Ferguson stated the anticipation was that they would call him at the opportunity they had for
rebuttal because that was the best opportunity that they had to then present a rebuttal case and Mr.
Kummer would fit nicely in that.
Mr. Sands stated if they want to take him out of order and could do it now, we have no objection
whatsoever.
Mr. Ferguson stated why don't we proceed with the Town's case and then we'll have Mr. Kummer
afterwards.
Mr. Sands stated they'll begin with the statement from Mr. Powell who will give a general
overview of the Town's position, a little road map as to what others will be presenting this morning.
Mr. Powell stated Mr. Chairman, members of the Board, in June of 1997, a remarkable event
occurred in the history of Brush Creek. Fred Kummer withdrew his application for the Adam's Rib ski
area and golf development. This ended 25 years of speculation over that project and changed forever the
thinking about Brush Creek. Previously a ski area and several thousand units were proposed in east
Brush Creek. There were to be two community centers in Brush Creek, the ski village and the Town of
Eagle. But in June of '97, the concept of two community centers was foreclosed because of the
withdrawal of the application. This meant that only one community center is intended for the area and
that is the Town of Eagle. The Eagle Area Community Plan further shapes the concept of one
community center.
In 1996 the County adopted an updated Master Plan including the future land use map, the
FLUM, as well as the Eagle Area Community Plan. The Eagle Area Community Plan is a fundamental
part of the Master Plan as represented by resolution 9604. At that time the Adam's Rib ski area and
resort development had a continued sketch plan approval. And the FLUM indicated that a future resort
could happen in the upper Brush Creek area. The exact wording of the asterisk on the FLUM states,
future resort sketch plan approval.
After many years of trying to meet the conditions of sketch plan approval and place thousands
units in a ski area in east Brush Creek, the applicant finally withdrew the application from both the
Forest Service and Eagle County. The withdrawal of the sketch plan application was made in a letter
signed by Fred S Kummer on June 6, 1997. It is the position of the Town that this withdrawal negates
the asterisk on the FL UM for the development of a resort in the upper Brush Creek valley. Voiding the
asterisk and development of a resort is supported by the acquisition of east and west Brush Creek, which
closes any re-application for the ski area.
The Town contends and they believe staff and the Planning Commission agree that this
underlying land use designation of rural district for the Frost Creek property prevails. The asterisk is no
longer relevant. The rural zone district allows one unit per 35 acres and the current application is one
unit for every 3.5 acres approximately, or 10 times the density. The Eagle Area Community Plan
promotes this same density. The County Commissioners in their sketch plan approval noted that a resort
was allowed for this area. However, the applicant has stated in their application many times that the
proposal is not a resort, but rather, a low density subdivision. A density not allowed for by the FLUM or
the Eagle Area Community Plan.
This subdivision is many miles away from the recommended growth boundaries of the Eagle
Area Community Plan and the designated areas called for by the FLUM. We believe that the FLUM and
the Eagle Area Community Plan are consistent in not allowing for urban development in the Frost Creek
area. The Town contends that this project is in the wrong place and proposed to be developed at the
wrong time and represents a prime example of disorderly development if approved. The Commissioners
have taken a position against the proposed amendment 24 and also the Colorado County's as well. The
opponents of this amendment have often stated that local government has the tools to secure balanced
2
10-18-2000
growth and orderly development and the amendment is just not necessary. While that may be the case,
the public is clearly asking for meaningful Master Plans to be developed and enforcement of those
Master Plans. The Town believes that we have quality Master Plans in both the form of the Eagle
County Master Plan and Eagle Area Community Plan. But the key is enforcement. Frost Creek proposal
is simply not consistent with Master Plans. The Board of County Commissioners sketch plan approval
signals to the public that the Master Plan is simply not relevant, that disorderly growth can occur in this
County and the approval of subdivisions a la carte as our business will be handled in Eagle County.
Indeed, the Frost Creek project is labeled by many to be the poster child of the smart growth campaign.
Eagle County did receive a smart growth award for their County Master Plan in part because it focused
growth around community centers and strived to protect open space and agriculture outside of
community centers. It is imperative that you send a message to the public and developers that you intend
to enforce the Master Plans in a meaningful way. County officials have criticized the Eagle Town
Board previously for not approving the Adam's Rib projects. You have characterized the Town's actions
as miss steps when our Board insists that they acted responsibly.
Many months of discussions of the Adam's Rib Ranch P U D resulted in a very tough but fair
decisions of the Eagle Town Board at which time they found the developer had not met conditions of
sketch plan approval and that the project did not meet the goals, policies and plans of the Town. This
decision was made in 1999. In making the decision the Board decided that the current Master Plan is
valid and needs to be enforced. This is the same Master Plan is that in effect for Eagle County, the
Eagle Area Community Plan. The plan cannot be ignored. The application currently before you has
decreed duplicate water and wastewater systems in the upper Brush Creek valley. An approval of these
duplicate systems is not consistent with the approval criteria. Staff has pointed out 9 separate criteria for
which they cannot make a positive finding. As you know, to approve the 1041 application, all 20
criteria, criteria A through T must have a positive finding. The Town feels so strongly about the creation
of these duplicate water and wastewater systems that it intends to pursue its due process abilities to the
fullest degree. Today the Town has been the sole provider of water and wastewater services in the area.
We believe we have acted responsibly. All drinking water standards are met, all wastewater discharge
standards are met, the Town has planned for capacity, and implemented improvements for capacity.
Long-range plans have been developed so that the Town knows in the future what improvements are
necessary to be a responsible water and wastewater provider. We believe we are a quality provider and a
responsible provider. The applicant has stated that the Town has not committed to water service for the
Frost Creek project. However, we have never said that we would not serve the area. They have also
stated that we have not committed to wastewater service. However, the Town has never been asked to
serve wastewater service in the Frost Creek area. Rather, the applicant states that it is too expensive to
extend wastewater to the Town of Eagle. In any event, the Town has a policy as it relates to granting
water and wastewater service and that policy is simple: The policy is that the Town will provide water
and wastewater service for a project when that project meets the goals, policies and plans of the Town,
including its Master Plan, and annexation occurs with the project or there is a Pre-Annexation
Agreement.
This policy assures orderly development and respect and adherence for applicable Master Plans.
We want you to be aware that the County and the Town are really in the similar situation, and I think this
is very important. Your Regulations don't allow for approval of 1041 permits for the extension of water
and wastewater service or the creation of water and wastewater plants unless those projects are
consistent with the Master Plan. And that is consistent with the Town's policy of not extending water
and wastewater service unless projects conform with Master Plans. By voting in favor of the Frost
Creek project, a PUD sketch plan, the County Commissioners have indicated in their motion that the
project may not be in conformance with the Master Plans, however, changed circumstances allow for
such an approval. The Town contends that changed circumstances are not criteria for approval, but
rather, a reason to amend Master Plans.
3
10-18-2000
Section 6.01.15 of the 1041 Regulations requires that the Master Plans be adhered to and they are
asking the Board to enforce that Master Plan. The Town does not believe that circumstances call for an
amendment to the Master Plan. Indeed, if anything, the public acquisition of east and west Brush Creek,
the existing Master Plan has greater appeal than it ever did before. That is concentrating growth around
the existing Town center. The Town senses that this Board of County Commissioners sees urgency to
the development of Brush Creek valley in the near term. Why do we in the year 2000 have to make
decisions for future generations for almost all properties in the Brush Creek valley? We are asking the
Commissioners to step back and re-think this urgency. Indeed, Mr. Kummer's overall development
plans need to be totally re-thought. The magnitude of the project in the year 2000 is simply not
necessary. The type of character he is trying to force on the Brush Creek valley is not appropriate and
not consistent with Master Plans.
The Town contends that now is not the time to make substantial approvals and that those
approvals of Adams rib is asking are inconsistent with the County Regulations. Let's become
community builders instead of adversaries. Let's send a strong, strong message that no private
developer can come into this valley and not follow the Master Plan. The application states that the
wastewater plant will be expandable to 800,000 gallons per day, and by my calculations, that would
serve approximately 3,000 households. Now, we know that the applications are for 300 units at Frost
Creek more or less, or 1300 units more or less at the ranch, so we are wondering where those other 1400
units are intended for. But in any event, the establishment of a wastewater plant in upper Brush Creek
valley and any approval of the Frost Creek PUD will send a message for other landowners in the area
that this area is ripe for development. If you up zone the Frost Creek property, establish wastewater
plant in the upper Brush Creek valley, the signal to other landowners in that area is that they too can up
zone and extend to that wastewater plant, which the state will require to be a regional plant if approved.
These are unintended consequences of any approval that you might make. And clearly it's in violation of
the Master Plan which calls for those areas to remain rural. Mr. Kummer does not own all the private
lands in the Brush Creek valley. There are probably an additional 1200 acres in the upper Brush Creek
valley. Pollock property, Jackson property, Ridgway property and the old Whitaker Ranch.
The Town has been criticized in the past in terms of being discriminatory or playing favorites
with Eagle Ranch as compared to other developers, and I want to refute that assertion. We believe that
the Town Board has acted responsibly in its approval of the Eagle Ranch and any rejections of other
projects. One of several things that the Eagle ranch developers did to conform to the Master Plan were
that they had public meetings before they drew up their plans. They studied all of the relevant plans for
the area, including the Eagle Area Community Plan and the Town Open Space Plan. And when they
asked Eagle Ranch developers to study a problem, they studied the problem. They studied it honestly
and fairly and came back to the Town with their position. Oftentimes we had very strenuous
negotiations with them. There were a lot of bumps in the road. But in the end, they were approved
because they had a plan that met the Town's goals, policies, and plans. Half of the dozens of their
project is in a traditional or a grid pattern and intended for the working person in this valley. The
elementary school is placed in the heart of the community. A publicly owned daily fee golf course is
being created, the 1st of its kind in 25 years in Eagle County. All Riparian areas were set aside as a
public park, some 160 acres. A variety of housing is being created. All water rights have been dedicated
to the Town. The developers are creating a community pavilion to be dedicated to the Town and the
participants in other recreation projects. We also want to discuss the phasing plan for Eagle Ranch. We
have been criticized also that this phasing plan may not be meaningful.
Part of the Eagle Ranch Annexation and Development Agreement has a phasing section in it, and
that phasing section contemplates five phases in which an order of development is to occur. And the
phases sequentially step out from the core of Town, one, two, three, four, five.
Chairman Stone stated it looks like No.2 is closest in Town and No. 1 is farther out.
Mr. Powell stated there are phases and there are filings. What you see on the map are filings.
4
10-18-2000
Mr. Stone stated filings are not phases?
Mr. Powell stated correct. The phases are a planning term and they are contained within the
Annexation and Development agreement and we require the developer to plat the filings consistent with
the phasing plan, which requires that you go sequentially from one to two to three to four to five. We
have allowed them to do both phases one and two initially, so they are grouped together. And all five
filings that have been planned so far are within phases one and two. Now, you will notice that some of
those do extend beyond the 10-year boundary. So what we will be seeing with Eagle Ranch is that the
phases to come will all be towards where it says Town of Eagle, they will be back and in-fill there, and
some of you are probably aware that their plan for a traditional center has taken a little bit longer to get
off the ground, but we anticipate this to be the case, that the rooftops on the traditional center will very
shortly surpass a lot of the growth in the more suburban residential area.
Chairman Stone asked where are their first homes to be built, in which ofthose filings?
Mr. Powell stated that would be in filing one.
Chairman Stone stated he noticed that there was something for sale out there around $600,000 or
$1,000,000, something like that.
Mr. Powell stated yes the speculators have gone wild out there.
Chairman Stone stated the prices don't seem to be where they thought they were going to be.
Mr. Powell stated that is unfortunate, no doubt. We have seen the prices for people coming in
speculating and he thinks they will probably see some of those prices settle out. In any event, you will
see in-fill after that. The reasons that we allow for some growth to occur outside the lO-year boundary
are because the developer cooperated with the Town to try to create a publicly owned public play golf
course, daily fee golf course, and they had to install some amount of infrastructure in that area, and we
allowed them to develop in that area to recoup some of their expenses, and additionally, it allowed them
to offer some variety of product in the early stages of the subdivision, rather than just traditional product
in the early stages. We thought we ought to get that out in front of people and demonstrate to you that
we are trying and attempting to enforce the Eagle Area Community Plan to the fullest degree possible.
This of course is a large piece of land, and we did bring the whole piece in under annexation and there
are meaningful phasing requirements and the Town Board intends to enforce those.
Mr. Ferguson stated he had a couple of follow-up questions. One, as a result of your
determinations, was the Eagle ranch project approved through the PUD process?
Mr. Powell stated it was.
Mr. Ferguson stated and the Town Board made the determination that the project was consistent
with the Master Plan and Eagle Area Community Plan; is that correct?
Mr. Powell stated that is correct.
Mr. Ferguson asked has the phasing plan for Eagle Ranch been amended?
Mr. Powell stated it has been amended once.
Mr. Ferguson asked what was the effect of that amendment?
Mr. Powell stated there were two small plats that were originally intended for filing 3 that were
brought in that were originally intended for phase 3 and were made a part of phase 2.
Mr. Ferguson stated where were they located?
Mr. Powell stated they are located in the area where you see the biggest grouping of filings on
that plan, between E and S in those areas. It was filing 4.
Mr. Ferguson asked isn't it true that any other proposed development project by a landowner in
Eagle County must come before Eagle County for approval?
Mr. Powell stated he believes in the Eagle area, people have two options, they can tend to stay in
the County or they can apply for annexation to the Town.
Mr. Ferguson stated but in any case, if somebody wants to develop a property, they have to go to
one of the two jurisdictions.
Mr. Powell stated any land use approval has to be approved by a local governing body.
5
10-18-2000
Mr. Ferguson stated has the Town recently expanded its wastewater treatment facility?
Mr. Powell stated the Town built a new wastewater treatment facility, and we finished that
construction in 1997. That added substantial additional capacity over the old plant, which was replaced.
Mr. Ferguson stated but that doesn't necessarily mean that development will occur to be serviced
by that wastewater treatment plant without going through the approval process, does it?
Mr. Powell stated the Board of Trustees must allow for an extension of service, a collector means
to be collected to the wastewater plant if that's the question.
Mr. Ferguson stated if any such service was going to be for a project in the County, the County
Board of Commissioners must still approve of that project; is that correct?
Mr. Powell stated it was his understanding that any extension of wastewater means require a
1041 approval.
Mr. Ferguson stated it was for a development, the development would also need approval; is that
correct?
Mr. Powell answered yes.
Mr. Ferguson asked what's the total acreage of the Eagle Ranch parcel?
Mr. Powell stated approximately 1550 acres.
Mr. Ferguson asked how many units ultimately will be located on that parcel?
Mr. Powell stated there is 1100 are the PUD approval.
Mr. Ferguson asked if that takes us to a density of 1.4 units per acre?
Mr. Powell stated in total, yes.
Mr. Ferguson stated Mr. Powell indicated that the Town policy for service of water and
wastewater service is based upon a project meeting the needs, goals, policies and plans of the Town.
And one of the conditions of such service would be that either annexation or Pre-Annexation, a Pre-
Annexation Agreement must be entered into. Is that correct?
Mr. Powell stated that is correct.
Mr. Ferguson stated in the Town's view, Mr. Powell stated before the planning and zoning
Commission that this project does not meet the Town's goals, plans and policies; is that correct?
Mr. Powell stated he did say that, yes.
Mr. Ferguson stated and therefore, the Town is not willing to commit to serve the project as it is
proposed today.
Mr. Powell stated we have not refused service. Our position is that the project does not meet the
Master Plan of either the County or the Eagle Area Community Plan.
Mr. Ferguson stated does that mean you have not committed to serve?
Mr. Powell stated we have not committed to serve. We have not refused service. We have not
made a commitment to serve.
Mr. Ferguson asked does the Town wastewater treatment system have a lift station?
Mr. Powell stated we have one lift station in Town, and it services everything north of the Eagle
River.
Mr. Ferguson asked where the Town center is at this time?
Mr. Powell stated he would phrase that as the community center and believes the community
center is pretty obvious. It is where we are developed and where we go next.
Mr. Ferguson stated you used the term Town center at the beginning of your testimony and we
were trying to figure out where that Town center is. Is it here or is it over at Eagle Ranch?
Mr. Powell stated he thought he used the words community center. Ifhe used Town center, he
intended to use the word community center. He believes where the community exists is pretty obvious.
It is where you see rooftops in the Town of Eagle and where we have annexed.
Mr. Sands stated just for the Board's information and the record, could you give us your
professional education and training and experience as it relates to your position as Town Manager?
Particularly as it relates to the planning area.
6
10-18-2000
Mr. Powell stated he has a bachelor's degree in business administration with a concentration in
marketing. He has a master's degree in business administration with a concentration in finance. He
worked for three years as a senior budget analyst for the state of Ohio, supervising departmental budgets
with a biannual budget of $2 billion. He has owned his own construction company doing construction of
homes and minor development. He has been a Town Manager for 16 years. Of those 16 years I was
both the Town Manager and the Town Planner. 13 years of that duration, he was a member of the
American Planning Association and the Colorado City and County Managers Association.
Mr. Sands stated just to clarify your role for the Commissioners and the record, have you been
authorized to testify as you have today on behalf of the Town of Eagle, authorized by the Board of
Trustees, or are you testifying in your individual capacity?
Mr. Powell stated he is authorized to speak by the Board of Trustees.
Mr. Sands asked if he was familiar with section 31-12-121 of the Colorado revised statutes?
Mr. Powell answered yes.
Mr. Sands asked could you briefly explain what that statute is?
Mr. Powell stated that statute allows as a precedent to serving services, water and wastewater
services, annexation of a project or a specific performance contract for future annexation or pre-
annexation.
Mr. Sands stated so when you indicated earlier that it was the Town of Eagle's position that in
order to provide water and wastewater service, that the Town of Eagle would require annexation or a
Pre-Annexation Agreement, based on that statute, do you believe the Town is acting strictly in
accordance with law?
Mr. Powell answered yes.
Mr. Sands stated he indicated when Mr. Ferguson was cross-examining him that in regard to this
Frost Creek project, he hadn't committed to provide water and wastewater services, but you had not
refused them either. Could you explain that more fully?
Mr. Powell stated there has been dialogue for some time going on about servicing water for this
project, and I think we have been consistent in our statements about this, and that goes back to our
overall policy that we will commit to water and wastewater service, we will service water and
wastewater when the Board of Trustees makes a determination that projects are in conformance with the
goals, policies and plans of the Town, and there is annexation or a Pre-Annexation Agreement.
Mr. Sands stated it's important to distinguish the land area, the land mass from the proposed
development. Has the Town of Eagle ever indicated that it would not provide water or wastewater
service to the land area known as Frost Creek?
Mr. Powell stated no. We have never stated that we would not serve water and wastewater in
this area through here.
Mr. Sands asked about Exhibit E-16.
Mr. Powell stated that is a letter from Wayne F Lorenz of Wright Water Engineers asking for him
to comment on behalf of the Town regarding a proposed Adam's Rib wastewater treatment plant and lift
station site application engineering report.
Mr. Sands asked about Exhibit E-18.
Mr. Powell stated that is a letter in response to the item we just talked about in E-16, my
response to Wayne F Lorenz on the proposed site application.
Mr. Sands stated that letter seems to refer to a memorandum from the Northwest Colorado
Council of Governments. Is that memorandum identified as Exhibit E-l7?
Mr. Powell answered yes.
Mr. Sands stated the last paragraph ofthe Northwest CCOG memo suggests that it is higWy
likely that Frost Creek facility will become a regional wastewater facility serving adjacent lands. I think
you have touched on that, but it would appear that agrees with your concerns about that serving these
additional 1200 acres that aren't even owned by Mr. Kummer.
7
10-18-2000
Mr. Powell stated yes. He thinks that is a concern amongst people who are knowledgeable of
this project, including Robert Ray.
Mr. Sands stated yesterday there was a lot of discussion regarding Adam's Rib case in chief about
the Town indicating that they had refused water service. Apparently, they ultimately said they never
even asked for wastewater service. But the application cited as an evidentiary basis for that attachment
K contained in the application, and that buried in attachment K there were some references to a
November 15 meeting. Do you recall what that November 15 meeting was all about?
Mr. Powell stated that was a meeting that was held here in the Eagle County Building and called
at the request of Adam's Rib. It included officials from Eagle County, the Town of Eagle, Northwest
COG, Colorado Water Quality Control, and Adam's Rib. They wanted to discuss the proposed site
application for a wastewater treatment and water treatment plant in the Frost Creek area.
Mr. Sands asked about the significance of the Adams Rib site application engineering report.
Mr. Powell stated he is reading starting in the middle of the first full paragraph on the top of page
4 where it says "at the November 15, '99 meeting to discuss planning issues the Town of Eagle
representatives stated they would not commit to serve the Adam's Rib Developments. They expressed
the desire for development to occur closer to the Town. They recognized that over 6 miles of sewer
would be needed to be constructed along Brush Creek." He stated he does not believe that fairly
represents the conversation that occurred in that meeting. In that meeting there was clearly discussion
about both the Ranch and the Frost Creek project, and if the Ranch and Frost Creek project were to
occur at the same time or nearly the same time, then is it inappropriate to look at another option and that
is connecting to the Town of Eagle, and we now know that if you combine those two plans together, the
only additional extension that would be required would be about 2500 lineal feet into of the Eagle ranch
subdivision where the line has been up sized for further development in the Brush Creek valley. So
during that discussion it was also the case that, as I recall, the applicant asked Wright Water Engineers to
not discuss that any further, but just focus on the Frost Creek project. And so it makes a problem in
terms of exploring all the alternatives for provision of wastewater services.
Mr. Sands stated and perhaps as long as we're on this document, in the interest of time, I'll just
ask you now, on that front page 3, there is a reference to regulation 22. Are you familiar with that
regulation? And why do you think it's important to the proceedings?
Mr. Powell stated he does not pretend to have a great deal of knowledge about regulation 22, but
it contains the process and the approval standards for approving to the State of Colorado, the water
quality control division, for wastewater plants and new water plants, and they look at such things as days
of treatment that works whenever feasible, and appropriate siting of new facilities.
Mr. Sands stated of course, we will be hearing from the district engineer later on this morning.
Mr. Ferguson stated he has a couple of questions. Under page 4 of the engineering report which
Mr. Sands has indicated is located in your exhibits, with respect to page 4, Mr. Powell, you took a little
bit of issue with the characterization of this meeting. Let me just ask, I thought I heard you testify earlier
that the Town would not commit to serving this Frost Creek project because it does not meet the goals,
plans, and policies of the Town; is that correct?
Mr. Powell stated at this time the Town has not committed to serving that area. Our policy is to
service an area when a project meets the goals, policies and plans of the Town.
Mr. Ferguson stated and therefore, the representation in the site application that the Town
representatives stated they would not commit to serve Adam's Rib Development is correct.
Mr. Powell stated if you want to take that one small part of it, it is correct, though we have said
we are willing to service that area.
Mr. Ferguson stated that goes to the next statement, which says they, meaning the Town,
expressed a desire for development to occur closer to Town. Is that what you were just describing?
Mr. Powell stated the Master Plans are clear on that subject, that the Town is required through its
Master Plan and we believe the County is too, to build from the inside out, not the outside in.
8
10-18-2000
Mr. Ferguson stated is it true that 6 miles of sewer would have to be constructed from the sewer
facilities of the Town to this project?
Mr. Powell stated only if you take Frost Creek as one particular part. As you know, there are two
applications involved here.
Mr. Ferguson stated no, I think there is one application involved here, thank you. Mr. Powell, in
connection with regulation 22 regarding consolidation, isn't consolidation of wastewater treatment
facilities a twofold matter? One, there is consideration of consolidation of plants and facilities. But the
second consolidation is consideration of consolidation of management and operation of differing
facilities; isn't that correct?
Mr. Powell stated you know as I said earlier, I am not totally familiar with regulation 22, and I
would defer on that answer on that. I don't have a definition section. It's not clear to me what all
consolidation is intended to mean in that context.
Mr. Ferguson stated so whatever your testimony was with respect to regulation 22 was really
limited to the reference on page 3 of the site application.
Mr. Powell stated my reference was intended to focus mostly on appropriate siting.
Mr. Ferguson stated who should I ask about the consolidation issues as they may relate to such
site?
Mr. Powell stated we have other witnesses, Jim Chubrillo from water control division and Robert
Ray from Northwest COG.
Mr. Ferguson stated you are not in a position to answer any further questions on that.
Mr. Powell stated correct.
Mr. Ferguson stated Mr. Powell, you indicated you are familiar with the statute cited by Mr.
Sands regarding the ability to provide out of Town water service by the Town of Eagle and the authority
to require annexation or contracts for annexation in connection with such service. My question is, does
that statute require annexation or Pre-Annexation Agreements for out of Town service by
municipalities?
Mr. Powell stated my reading of that is it allows the Town to require.
Commissioner Gallagher stated he has heard Mr. Powell say that under certain circumstances
there needs to be an 8 mile layer of sewer line and in other circumstances there could be a short one laid
to a preexisting line. Could you clarify that for me?
Mr. Powell stated the Frost Creek project of course is largely a stand alone project. The
applicant has stated in this application they want the wastewater plant to be expandable. It's our
understanding that the reason it's being asked to be expandable is to also service an application that's
also currently before you, the Ranch 1041 project as well as this project. If both of those projects were
to occur, there would be wastewater lines the length of Brush Creek through the Ranch and Frost Creek
properties, all of which were gravity flow down through the Brush Creek and the construction of those
facilities would only be 2500 lineal feet short of connecting to sewer mains within Eagle Ranch that
have been up sized to accommodate further development in the Brush Creek valley.
Commissioner Gallagher stated for clarification, the Adam's Rib Ranch versus the Ranch?
Mr. Powell answered yes.
Commissioner Gallagher stated and you are saying that there is approved for construction if not
already built an oversized sewer line in the Ranch that is to the east, if you will, of Brush Creek?
Mr. Powell stated yes, that line ends. That is the line that's in place currently, and if you are
familiar with the lay ofland, it ends at the Eagle Ranch golf course clubhouse currently. It is a 21-inch
sewer mam.
Commissioner Gallagher stated you are talking about not Brush Creek having that close
connection, but the Adam's Rib Ranch having that close connection, is that correct?
Mr. Powell stated that is correct.
Commissioner Phillips stated as long as we're talking lines and everything, with the water plant
9
10-18-2000
as we see it, that little white dot there, does it have a line that runs all the way into Town?
Mr. Powell stated yes, it does.
Commissioner Phillips stated so then it wouldn't be that much of a problem if you guys would
agree, and you said you would, and you would love to do it, from what he understands you are saying
because you have said that a lot, you would be willing to do that. You weren't apparently on November
15 from the letter that we received here. It said that you weren't willing to do it at that time. But if it
runs all the way down there now, then I agree that consolidation of districts is certainly a lot better than
having more than one. So with that, it appeared that you didn't feel that regional districts either were
something you would like to see. So tell me again, Willie, would the Town be willing to supply water to
this subdivision?
Mr. Powell stated we are willing and feel a responsibility to provide water and wastewater to this
area with the appropriate plans and at the appropriate time consistent with the Master Plans.
Commissioner Phillips stated Willie, when this was in the Town and as you know, the Board
suggested very sternly all those things to get it to go to Town twice. These issues weren't a problem at
that time. And now we're sitting here listening to all this and it was the same way when the Town of
Avon came when they had a subdivision that was going to impact their Town. And they felt that the
County shouldn't do it. So we sent it back to the Town of Avon, they did work with that subdivision,
that developer, and they now have full control of making the decisions for that subdivision in that area.
The Town of Eagle chose not to do that one more time as far as agreeing and working with and
continuing to make sure that this project was under the control of the Town of Eagle. You talk about the
Eagle Ranch and the Town center and the community center that's been planned and how it's all in there
tucked in with the Town center. But then you also talk about traditional centers where the Town offices
might have gone and I think that would have moved the Town center. Also, I think with the commercial
that's planned there, I also feel that that is moving the Town center. When you put the policy office over
on that area, it makes the traffic and moves a lot of the Town center. So I'm not sure and I'm a little
confused as to where the Town center might be in this area. But I really feel that when this project was
in the Town, these issues weren't the same as you are presenting to us now. And now you have said that
you will provide the water, so I'm feeling a little better about this all along here. So I guess that I don't
have any other statement to make at this time.
Chairman Stone asked if they could go back to the original document handed out?
Mr. Fritze stated he believes there is a problem for the record with the way items are coming up.
Anyone who later reviews the record will have no idea what "this" is. The Board had requested
numbered exhibits which have been provided. If it is one of those numbered exhibits, identify it by
number. If it's not a numbered exhibit, number it and collect it.
Mr. Sands stated the first one was Exhibit 1-33. Regarding the next slide that does show the
pipelines, that is really simply a version of what was taken out of the applicant's records regarding their
pipeline plan.
Chairman Stone asked how it is referred to?
Mr. Sands stated they would be willing to have it marked as Exhibit E-40.
Chairman Stone asked about the next one.
Mr. Sands stated that is part of attachment K to the application. He asked on Exhibit 33, there is
a 1 to 10-year growth boundary and then a 10 to 20-year growth boundary. Does that mean that in
looking at the 1 to 10-year growth boundary, everything inside of that line is 1 to 10 years or everything
between the 1 to 10 year growth boundary? Is it everything inside that boundary, to the north or
anything to the south.
Mr. Powell stated these are recommended growth boundaries. With this particular subdivision, it
is a very large subdivision with various amenities and traits to it.
Chairman Stone asked if everything to the north of that line is 1 to 10 years or everything to the
south of that line?
10
10-18-2000
Mr. Powell stated it is diagonal.
Mr. Sands asked if it was to the north.
Mr. Powell stated the growth is intended to be largely within the lO-year growth boundary.
Chairman Stone stated to confirm what Mr. Powell just said, everything north or inside towards
the words down of Eagle would be the 1 to 10-year growth boundary.
Mr. Powell stated that was correct.
Chairman Stone stated and where growth is occurring today some of the first homes are outside
of that 1 to 10-year growth boundary for various reasons, between the line that says 1 to 10-year growth
boundary and the line that says 10 to 20-year growth boundary.
Mr. Powell stated that was correct.
Chairman Stone stated so we're really out at 10 to 20-year growth boundaries. He asked when
Eagle Ranch started?
Mr. Powell stated in 1997. That was the preliminary plan and annexation.
Chairman Stone asked when was the final plat approved?
Mr. Powell stated they didn't start construction untill999 so that must have been when the final
plat was approved.
Chairman Stone asked what the least expensive lot will be selling for in Eagle Ranch. He stated
in the Eagle Area Community Plan it specifically speaks of Adam's Rib Ranch offering homes for sale, a
number of them for $160,000, and the Plan went on to say that was not affordable. That's not affordable
by any stretch of the imagination. He stated he is curious as to what the least expensive home is going to
be for sale for.
Mr. Powell stated they do have a section in the annexation and development that does talk about
the affordable housing component, and it has many aspects to it. The applicant is allowed to have an
accessory unit anywhere within the subdivision. There is a requirement that 12 percent of the project be
deed restricted. There are amenities of the commercial center allowed. There are more live work units
allowed and there is a transfer fee that goes into an affordable housing pot.
Chairman Stone stated this is something that the Board struggles with. It seems the only way to
assure affordable housing is by having homes that are for sale at a specific price. He asked if those
decisions were made when the development was approved.
Mr. Powell stated that is what happened. Amongst the affordable housing component, those
projects cannot escalate at any more than the C P I and then the housing corporation that is being formed
is allowed to buy those back if they turn and keep them in the affordable housing pool.
Chairman Stone asked what would you consider an affordable housing price today?
Mr. Powell stated that's a very difficult issue. He stated the County's own studies on affordable
housing makes a statement something to the effect that people desire single-family homes in the
$250,000 range. It is his understanding that the average household income given certain assumptions
would afford a project in that range. He related he does not think that's affordable.
Chairman Stone asked if Mr. Powell agreed with the opening statment prepared by himself that
related $250,000 being the least expensive home would be for all income groups.
Mr. Powell stated he believes he had related a variety of income groups.
Chairman Stone stated he wrote it down specifically and Mr. Powell stated all income groups.
Commissioner Phillips stated concerning the accessory units and the 1100 homes that are going
to be at Eagle Ranch, did that include the numbers of the accessory units and that everyone could have
an apartment or accessory unit as well.
Mr. Powell stated accessory units would be on top of that.
Commissioner Phillips stated that's in addition to the 1100 units that were approved by you and
the Town Council.
Mr. Powell stated the approval allows for 1100 primary units with the voluntary ability to put on
an accessory unit.
11
10-18-2000
Commissioner Phillips stated they could have as many as 2200 units if they had an accessory unit
for every one of the original units. She asked Mr. Powell when they amended the application so there
could be more units built and was that in the 10 to 20-year growth boundary?
Mr. Powell stated it was. If it was signified by filing 4. The infrastructure was already in place
for other reasons.
Mr. Ferguson stated he does not believe the handout is the same as the Exhibit that's located on
the Board and he would like to have this exhibit marked separately.
Mr. Sands stated it is identical to Exhibit 33, except what was passed out has filing numbers on
it. Other than that, the Eagle Ranch filings are shown on Exhibit 33. Everything else is the same. He
stated they would be happy to make it Exhibit 41.
Mr. Ferguson stated he would like it so marked.
Chairman Stone stated Exhibit 33, the one just handed out will be re-marked as Exhibit 41.
Mr. Ferguson stated as he looks at this exhibit, on the upper left-hand side, the red section, is this
constructed and in place?
Mr. Powell stated that was correct.
Mr. Ferguson stated as he understands this map, the sewer line is extended from the existing
Town of Eagle wastewater treatment plant all the way to existing Brush Creek Road. Is that correct?
Mr. Powell stated that's not correct. As he indicated earlier it goes to the project similarity of the
Eagle Ranch Golf Course Clubhouse.
Mr. Ferguson asked where is the Eagle Ranch Golf Course Clubhouse on this exhibit?
Mr. McKinzie stated it is about where the arrow head is, it says existing sewer.
Mr. Ferguson stated from that location to old Brush Creek Road which is marked in red has not
been completed.
Mr. Powell stated that's correct. That's the missing 2,500 lineal feet.
Mr. Sands stated David Carter will be one of the many witnesses where in which they will
address the affordable housing matter in much more detail. He asked James Lochhead to come down.
Mr. Lochhead stated he is an Attorney with Brownstein, Hyatt and Farber in Glenwood
Springs.
Mr. Sands stated turning his attention back to the early '80s when he was representing the Town
of Eagle as special water counsel, was he familiar with what was then proposed as a development by and
with the water negotiations that occurred at that point in time?
Mr. Lochhead stated he was involved with the Adam's Rib Development from about 1978. He
stated he was involved on behalf of the Town in the Adam's Rib sketch plan application in the early
1980s, in the E I S process for the development of the ski area, in the state joint review process. He
stated one community center is intended at this time. At that time the ski area had a continued sketch
plan approval and the FLUM. After many years of trying to get approval the applicant finally withdrew
the application.
The Eagle Area Community Plan promotes the same density. The applicant has stated in their
application that it is not a resort but rather a low density subdivision. This subdivision is many miles
away from the growth area. This project is in the wrong place and the development is in the wrong time.
The Commissioners have taken a position against Amendment 24. The amendment is not necessary.
However the public is asking for meaningful development. The key is enforcement. The Frost Creek
proposal is not consistent with the Master Plans. In deed the Frost Creek project is labeled by many as a
smart growth campaign. It is imperative that the Board send the message that they intend to enforce the
Master Plans.
Mr. Sands stated turning his attention back to the early '80s when indicating he was representing
the Town of Eagle as special water counsel, was he familiar with what was then proposed as a
development Mr. Kummer and with the water negotiations that occurred at that point in time?
Mr. Lochhead stated yes, he was with the Town with respect to the Adam's Rib Development
12
10-18-2000
from about 1978. He was involved on behalf of the Town in the Adam's Rib sketch plan application in
the early 1980s, in the E I S process for the development of the ski area, in the state joint review process,
and through that process worked with the Town in developing positions and comments on behalf of the
Town.
Mr. Sands asked ifhe was familiar with Exhibit E-2.
Mr. Lochhead stated yes, that's a copy of an augmentation plan decree in case No. 81 CW 479
which was actually filed in 1981. It was finally entered by the court sometime thereafter, he believes it
was around 1988 or so. It's not signed. It's his recollection it was around 1988. As water matters go,
they go very slowly. That augmentation plan reflects the overall Agreements and relationships between
the Town of Eagle and the Adam's Rib Ranch with regard to the development of water rights and service
to the ski area and to what was then known as the golf course development.
Mr. Sands asked ifhe was actively involved in that process that ultimately culminated in that
water decree?
Mr. Lochhead stated yes. He remitted for the Town of Eagle a statement of opposition to that
decree and negotiated that decree on behalf of the Town.
Mr. Sands stated for the benefit of the Board and the record, could he give a background of what
the issues were regarding water, regarding land use, back at this time, '78, the early '80s and then what
was attempted in the way of resolving those numerous issues?
Mr. Lochhead stated obviously what was proposed at that time was quite different than what is
proposed or contemplated now. Adam's Rib proposed a major ski area development in east Brush
Creek, as well as golf course-related development in the middle part of Brush Creek, and it was the
position of the Town through the sketch plan process, the E I S process, and through the augmentation
plan, that water rights be cooperatively managed, developed, that water service be consolidated, that
water services be provided in the most efficient manner for the customers of both the Adam's Rib
Development and the Town of Eagle to avoid proliferation of water districts, duplication of services, and
done in an overall efficient manner.
Mr. Sands asked him to turn his attention to Exhibit E-1.
Mr. Lochhead stated that is a copy of a water service and Annexation Agreement that was
entered into between the Town of Eagle and the Adam's Rib Development. The entities representing the
Adam's Rib Development, dated October 12, 1983.
Mr. Sands stated just to clarify and perhaps to get it out ofthe way, it's called Water and
Annexation Agreement, but did this actually contemplate the annexation of any of the Adam's Rib
properties at the up the Brush Creek valley?
Mr. Lochhead stated it contemplated the annexation of what was called the Mill Park property. It
did not provide for the annexation of what was referred to in the Agreement as the golf course property,
and which as he understands it, is the same property as is included within what's now called the Frost
Creek property, which is the subject ofthis application.
Mr. Sands asked if he could give a background as to what this Agreement ultimately did, as to
the negotiations and what each entity was attempting to do in ultimately resolving the matter and signing
this '83 Agreement.
Mr. Lochhead stated as he mentioned, the Agreement was intended to further the Town's, and he
thinks ultimately also Adam's Rib's, desires to consolidate water services in the Brush Creek Valley and
avoid competition and proliferation and duplication of services. Specifically, what the Agreement was
designed to do was to provide a mechanism for the Town to move its water treatment plant upstream in
the Brush Creek basin and be the sole provider of water service in the Brush Creek basin.
Mr. Sands asked during those negotiations, did Mr. Kummer and other representatives of Adam's
Rib specifically indicate that there was not to be a proliferation of special districts in the Brush Creek
valley and that the Town of Eagle was to be the sole water provider north of where their plant is located?
Mr. Lochhead answered yes, on numerous occasions Adam's Rib indicated to the Town, and in
13
10-18-2000
fact it was a large incentive for the Town to enter into this Agreement that the Town be the sole provider
of water service. There are a number of pieces of correspondence from Adam's Rib to the Town that
indicate that. For example, on February 24, 1983, Bob Young on behalf of Adam's Rib wrote a letter in
which he stated, "Based on your correspondence and discussions with the Town Board, they perceive
that the Town sees a real benefit and has a desire to locate the water treatment facility at the highest
practicable point in the Brush Creek Valley. Obviously this plant relocation would expand the service
area and lower the per-unit service cost. In addition, with a treated water line extending the length of the
Brush Creek Valley, there is an opportunity to ensure for the orderly provision of services and avoid the
proliferation of small, inefficient and sometimes inadequate service districts." On March 18, 1983, Fred
Kummer wrote to the Mayor of Eagle, Jim Seabry as follows: "Over the past three years the Town has
articulated the need for joint planning and water service cooperation in the Brush Creek Valley. Our
mutual interest is in determining how the entire Brush Creek Valley within the Town boundaries are part
of the community in a broader sense can be served with safe potable water at the least cost to each
customer. A plant in this location means that the entire valley could be served with treated safe water.
The cost to move the plant at a future date could well serve to require additional debt financing or if the
Town couldn't move the plant and prevent costs of un-efficiencies they would have to be born by the
customers. On April 12, 1983, Mr. Kummer again wrote to Mr. Seabry, "I want to take this opportunity
to express my appreciation to you, the Board of Trustees and the representatives of the Town for your
willingness to meet and discuss a water service plan for the entire Brush Creek Valley. I believe we are
in concurrence with the need for this plan and in fact recognize that this Agreement involves far more
than the sale of water taps. During our discussions we have all agreed that a single entity servicing the
Brush Creek Valley offered many benefits for the entire Brush Creek Valley community. We have in
fact been contacted by other developers interested in a cooperative effort. We have been and remain
willing to provide water service to all of our properties. However, the presence oftwo competing water
utilities in the valley may not be in the best interests ofthe Town or Adam's Rib.
Mr. Sands stated those letters he thinks clearly indicate Adam's Rib's intent back in 1983, but of
course, the question becomes, so what? This is the year 2000. Could he explain how that mutual desire
regarding service in the Brush Creek valley, then, ultimately culminated and became legal fact in that
1983 Agreement?
Mr. Lochhead stated the specific development proposal at the time was for 200 EQR or
equivalent residential units at the golf course property. And for another 240 EQR at the Mill Park
property which was to be annexed to the Town. The Agreement provided for the payment of water tap
fees by Adam's Rib in both cash and land for a water treatment plant site and for the extension of water
service by the Town to those developments and for water rights dedication from Adam's Rib to the Town
to provide those. He believes more importantly, for purposes of this discussion, the Agreement also
provided specific contractual limitations on the ability of Adam's Rib to expand, develop, or utilize the
tool of the special district or special districts for the provision of water and other services to its
properties in the Brush Creek Valley. Specifically, paragraph 16 of the Agreement provides that Adams
Rib is allowed to use a special district for financing purposes for the water facilities which are the
subject of that Agreement. It provides essentially that the special district is a debt retirement mechanism
and would not be in essence an ongoing competing duplicative public agency that would be located in
the Brush Creek Valley. The Agreement also provides contractual limitations on the ability of Adam's
Rib to develop other special districts or to expand or develop services on properties other than the golf
course property as it then existed. The Agreement provides very specifically that it would become an
intergovernmental Agreement between the Town and Adam's Rib. That if Adams Rib violated any of
the provisions of that Agreement, that that would injure the Town, that the Town specifically would
have approval if the boundaries of the district were not the same as the golf course development property
as then denominated.
Chairman Stone stated they have changed designations over the years, and when they speak to
14
10-18-2000
Mill Park, it would be nice to know where Mill Park is. When speaking about the golf course property,
it would be nice to know where the golf course property is because all those have changed names over
the years.
Mr. Sands stated this should be marked as an exhibit. It was not marked yesterday. It's the
Exhibit Mr. Cloyd actually drew lines on to show the old property and new property. This would be
Exhibit 42.
Chairman Stone stated Exhibit 42 reference shows a site plan for what's known as the Frost
Creek Development today.
Mr. Sands stated that is correct.
Chairman Stone asked where is Mill Park today? What would be a current reference?
Mr. Sands stated Mill Park is known as the Bluffs. It is annexed to the Town of Eagle.
Mr. Powell stated Mill Park has become the Bluffs. And it's right where the arrow indicates. It's
behind the schools on third street.
Chairman Stone stated those are synonymous with each other. He asked where would the golf
course property be, the property that we have been talking about 200 EQRs? Where is that property
today?
Mr. Powell stated it is his understanding from Mr. Cloyd's testimony yesterday indicating on
Exhibit 42, from a location on the north property line of the property at a corner where the
property goes from north to south and then east to west about halfway on an east west angle straight
south to the opposite property line. From the line that Mr. Cloyd drew on this exhibit, east, he wrote
1983 on that exhibit. And it's his understanding from that testimony that is the "Golf course property"
that was referred to in the 1983 water service Agreement.
Chairman Stone stated another way of identifying that property would be as is if we went
back to Exhibit 41, which was the piece that was handed out earlier, would that be the rough
approximation of the western edge of the area where there is a large asterisk and there is a
western boundary on that? Would those two lines be the same line?
Mr. Sands stated that is correct. It can also be found in the exhibits that have already been
admitted under Ms. Caloia's letter, Exhibit E-29. The last page of that exhibit they will see a very good
blow-up and it does indicate the old property and the newly acquired property. He asked Mr. Lochhead
back in 1983, was it his understanding that the Master Plan did permit 200 residential dwellings at that
location?
Mr. Lochhead stated yes, it did. At that point in time Adam's Rib, he believes, had sketch plan
approval from the County as well.
Mr. Sands stated this No. 200 EQR which they have been referring to of course is referenced in
the '83 Agreement. Was that some sort of limitation the Town set? Is that simply what Adam's Rib
wanted? Where did that number come from?
Mr. Lochhead stated that was the level of development that was proposed by Adam's Rib at that
time.
Mr. Sands asked ifthey had wanted more EQR at the time, more units, do you suspect the Town
would have agreed to that?
Mr. Lochhead stated he does not think at that point in time the Town had any specific limitation
in mind. That was what had been applied for, what was approved and that's what he thinks was
consistent with the County Master Plan at that time.
Mr. Sands stated now back to his explanation of paragraph 16 of the Agreement and the kind of
limitations it placed on special districts. Could he please continue on that matter?
Mr. Lochhead stated specifically, as he mentioned before, paragraph 16 is not limited to a special
district for the water facilities. It provides a contractual restriction on any special district that would be
developed to serve the golf course property, and specifically provides that the boundaries of the district
will not be changed without the express written consent of the Town. It relates to facilities not just for
15
10-18-2000
water, but for all services that might be undertaken by a special district and provides that the service plan
for the special district must be submitted to, reviewed by, and approved by the Town prior to approval
by the County or any other authorities and those apply to any special districts.
Mr. Sands stated Exhibit A-13 purports to be a letter from Mr. Boots Ferguson to Sherry Caloia.
Have you had an opportunity to review that letter?
Mr. Lochhead stated yes, it's a letter dated September 28, 2000.
Mr. Sands stated in that letter Adam's Rib seems to take the position of the obligations of this '83
Agreement relate only to the golf course development as then defined and the 200 EQR that was
proposed at that time. They seem to indicate that paragraph 16 actually only applies to the extent
Adam's Rib forms a special district to construct water facilities to use the 200 EQR on the golf course
property. They have indicated they are not going to use the special district to finance any of the Town
system water improvements, and thus they can ignore paragraph 16 and go merrily on our way. Do you
subscribe to that position?
Mr. Lochhead stated as he understands the position expressed in the letter Exhibit A-13, it is that
paragraph 16 relates to the formation of a special district for the construction of water facilities on of the
golf course property as denominated in that Agreement, and that's specifically is the controlling
paragraph. And that therefore, paragraph 16 C which provides a number of restrictions on the use of
special districts by Adams Rib does not apply. That wasn't the intent and that is not the way that the
Agreement is written. Paragraph 16 A is a permissive paragraph that allows Adam's Rib to use a special
district to finance water facilities on the golf course property. As he has earlier discussed, at that point in
time, the contemplation was that be for 200 EQR on that property. Paragraph 16 C relates to special
districts generally, and is an overall restriction on the ability of Adam's Rib to use the vehicle of special
districts operation and financing not only for water facilities, but for any other facilities that a special
district might undertake. And there are a lot of reasons why the Town took that position and wrote the
Agreement to provide that specific limitation. He mentioned the mutual desire of both Adam's Rib and
the Town that the Town be the sole provider of water service in the Brush Creek valley. The Town has
had a number of interests in that Agreement that it was seeking to protect by those restrictions.
Specifically, as is often the case and one ofthe reasons why Pe-Annexation Agreements are sometimes
used by municipalities, is that even though a development might not at a particular time be eligible for
annexation, it may become later eligible for annexation and a Town may inherit the facilities that were
developed on a particular piece of property. The Town had a desire to make sure that whatever facilities
were developed by any special district was constructed, operated and maintained to Town specifications
so that the Town and the Town's taxpayers did not inherit substandard systems. The Town also had an
interest in ensuring that the water rights for any service to any area that was proposed by Adam's Rib
were adequate and that the Town did not, again, inherit a system and have to subsidize the water rights
that were used to service that property. The Town also had an interest in assuring that it did not inherit
undue debt obligations with any kind of a system, be it road, water, sewer, whatever, or that it not inherit
a system that had been mismanaged.
The Town also had an interest in taking over a system that has been properly operated and
maintained. It did not have significant deferred maintenance. In addition, the Town had an interest in
ensuring that whatever municipal public systems were developed for the golf course property or as it
may be involved in the future, was not in competition for limited water supplies, that the Town and
whatever the district was were not competing for water rights on a water short basin which Brush Creek
certainly is, that the redundancy of supply which is an interest in municipal systems was not duplicated
by the two systems, and so those are a number of the reasons why the Town put the restrictions for
special district development in that Agreement and bound Adam's Rib in that way.
Chairman Stone stated unfortunately in the pre-hearing order a time was set of 10 o'clock for
public comment. It is now shortly after 10 o'clock.
Mr. Fritze stated he believes there is a sign-up sheet over there for the public and that the
16
10-18-2000
Board will call the people in the order that they are signed up.
Chairman Stone stated they will begin the public comments, and asked Mr. Fritze, if he could
explain what the requirements of the pre-hearing order are for comments, whether it be from the public
or the Town of Eagle.
Mr. Fritze stated pursuant to the pre-hearing order, the comments should be limited to things that
are relevant to the 1041 application, and that are not repetitive. In other words, there is no need for
people to get up to make the same point six times. If someone has already made their point they can
indicate that. The hearing will move along quicker.
Chairman Stone stated he has a total of 14 names. There was a late addition. Belle Seipel is the
last name on the list and she just added her name but he would like to give her the opportunity to speak
first. Ms. Seipel spoke to her love of the land and everyone needing to work together on this.
Courtney Adams, resident in the valley for 22 years. She stated she lives about half mile to
three-quarters of a mile from the proposed site. She related she is totally against this development for
several reasons. She does not see the need for a new treatment plant when there is one that's perfectly
good. Pipe would have to be laid from that area all the way down to what will be the Ranch, which
means they would have to pump the sewage uphill and have a lift station which can fail. The Town
currently has one lift station and she does not see the need to add another one that can fail when the
power goes out or the generator quits. Pumping sewage back uphill is like getting in your car and
driving home in reverse. She stated the applicant has related it's a high tech sewage plant and not going
to smell. And after 22 years of being in this valley she has seen the plant smell in Vail on Forest Road.
Those people chose to buy a house next to a sewer plant. She pointed out her residence and related she
chooses not to have a sewer plant put where she lives. Let's put the sewer plant, if the Board is not going
to kiss and make up with the Town, down valley where the sewage flows down and people who have a
choice can live next to it if they feel like they want to. The one in Edwards she smells every once in a
while. And everyone knows that Avon is dubbed "sewer ridge" because you smell it on a daily basis.
It's terrible. She does not want this one where it is currently planned. No one wants it next to their
home. She related she has been supportive of Adam's Rib being able to do what they want to a degree
on their own property. She finds it disturbing that you buy a piece of property and everybody can tell
you what you can and can't do with it. She stated she does agree they should be able to do what they
want to do within reason. But she does not believe that her benefit for standing up and supporting them
should be a sewer plant in her backyard. As a result she is present to oppose that and believes Mr.
Powell earlier stated that the Town would be willing to let Adam's Rib use the current facility under their
control, and so on, if it was to conform to the Master Plan. If it doesn't conform to the Master Plan, yet
the Commissioners are saying, okay, they will let Adam's Rib do this, if they are going to sanction it and
let it go through, they need to sanction that too and let it go on through. Pipe is cheaper than a sewer
plant and 6 miles is not that far to go.
Andy Wiessner, public lands consultant, stated he lives in Vail and is here today to speak in
opposition to the proposed Frost Creek Development 7 miles outside of the Town of Eagle. He believes
it's a classic example of inappropriate growth and sprawl. As currently proposed, the development
would allow a building density 10 times greater than the one unit per 35 acre minimum allowed under
Colorado law and also envisioned for that Frost Creek area by the County Master Plan and the Eagle
Area Community Plan. Moreover, this intensive development which includes 30,000 square feet of
commercial space and a golf course will be located 6 to 9 miles outside the Town of Eagle, in close
proximity to the newly expanded Sylvan Lake State Park and that doesn't make sense to him. In his
mind the location of this development is exactly the type of location where they should not be approving
up zoning for land. Up zoning means a greater density than the minimum allowed under state law.
Rather, development of the area should be strictly limited to the one house per 35 acres allowed under
state law or a development such as the proposed Nottingham Ranch golf course on the Colorado River
which adheres to that ratio. That Nottingham Ranch Development is an example of appropriate
17
10-18-2000
development because it sticks to the 35 acre ratio and actually has a conservation easement on
part of the land.
As the Board knows, the Town of Eagle strongly opposes the proposed development and the
forum shopping Mr. Kummer has pursued in his attempt to circumvent their jurisdiction. He believes
the Town's objections are related mostly to density and location. However, he thinks they also have
concerns about traffic congestion and air and water quality in the Brush Creek valley. Logically, these
types of adverse impacts can better be controlled in a development that is located near the existing
community center where transportation, water, sewer, and other infrastructure is already in place. Or
from where such services can be reasonably extended at a minimal cost to the taxpayers. He supports
the Town of Eagle's position and is troubled by statements by some ofthe Commissioners that the Town
deserved being circumvented by Mr. Kummer because they didn't deal with him in good faith. Please
bear in mind that the Town's position was unanimous, a 7 to nothing vote against the project, and he
doesn't think it can be implied that the entire Eagle Town Council is filled with unreasonable,
anti-growth members. Rather, he believes it's Mr. Kummer who is unreasonable. For example, prior to
the recent Sylvan Lake park dedication, Mr. Kummer called up the executive director of our Eagle
Valley Land Trust and an intern from the Conservation Fund and in separate phone calls proceeded to
use some of the worse profanities they had ever experienced in their professional lives. Their crime?
Printing Mr. Kummer's name on the certificate re-money invitations. Similar stories about Mr.
Kummer's short temper, abuse of employees and unwillingness to compromise abound. My point here is
he thinks it's Mr. Kummer who is his own worst enemy rather than all 7 members of the Town Council
who are being unreasonable in this situation. The County's own staff testified yesterday that they
opposed to his proposal and in fact over the last 25 years, the staff and the County Planning Commission
have rarely agreed with anything he has proposed. In summary, he believes it's clear that the Frost Creek
Development violates the letter and spirit of both of Eagle County Master Plan and Eagle Area
Community Plan. It's a textbook example of the type of development that should never be approved and
will not be approved if the voters adopt Amendment 24. If you, our Commissioners agree with the
Master Plan, you should live by its rules and deny this application. You should also give deference to
local control and honor the unanimous feelings of the Eagle Town Council. It will be Eagle that will be
most heavily impacted by this development. Finally, he believes this is an issue that's going to be around
for a long time. Given that most of the impacts will occur in the future, he believes the Board should
table the matter and allow it to be considered by the new Board that will be elected in November. That
Board will have the majority of newly elected Commissioners who will presumably reflect the public's
most recent thinking on growth and sprawl.
Chairman Stone stated next was Patsy Batchelder.
Commissioner Phillips stated Mr. Wiessner made his comments and she does not believe they
had much to do with the 1041. She does not believe he has a clue what will or will not happen with
Amendment 24. The comments he made was strictly against the development itself
and had nothing to do with the 1041. She feels there was an attack on Mr. Kummer and she is not sure
he was there and heard all the information. All the comments were hearsay and if in court she doesn't
believe these comments would be submitted into evidence.
Mr. Wiessner stated his point is that there are types of developments that can be located in rural
areas. The Nottingham Ranch golf course up on the Colorado River is a classic example of a proposal
that will live within the 35 acre rule, and he believes that's preferable in these remote locations. They are
going to have a conservation easement, they are going to cluster their development. This one as
proposed by Mr. Kummer has 10 times the density that is the minimum allowed under Colorado law, but
he believes that's inappropriate for a location so far out of Town.
He assured the Board he wrote his own statements.
Commissioner Phillips stated you mentioned that you thought one unit per 35 acres would be
advisable and you limit it to one house. Do you realize that on 35 acres it could be a big farm or maybe
18
10-18-2000
a recycling center or anything like that?
Mr. Wiessner stated yes, but he feels that whatever they would do under state law on 35 acres
would be far preferable to this intense type of development, the golf courses, plus units that would go on
this type of property and on the proposed Adam's Rib Development.
Susie Kincaide, 17 year resident of Eagle. She comes before the Board today as a member of the
Eagle Area Community Plan Assistance Advisory Committee. She stated they were formed in 1995 to
guide the formation of the Eagle Area Community Plan. That committee represented a very diverse
cross cut ofthe community from Adam's Rib to ordinary citizens like herself. That process resulted in
the Eagle Area Community Plan which was very open and transparent involving the hours of work by
the advisory committee. Several community meetings that attracted hundreds of residents for their input,
various open houses to review their views on growth for Eagle and most importantly, it involved many
compromises. The Eagle County Board of Commissioners of which they were a member at the time
Commissioner Phillips endorsed the process and contributed financially with the Town of Eagle together
over a hundred thousand dollars to create this plan. The result was a good working blue print for growth
in the Eagle area. It was endorsed by the Eagle area Chamber of Commerce in it's Beyond 2000
Symposium in May 1996 and later amended into the Eagle County Master Plan. It is an important tool
for guiding development. The Eagle Area Community Plan, is by no means a no growth plan. The fact
that Eagle Ranch was able to work within the plan and add 1100 dwelling units to our Town exemplifies
this. The E A C P calls for 20-year population growth of 4,000 more people. This is going to triple the
number of people in the area from when the plan was developed in 1996. That certainly isn't no growth.
It's reasonable growth. The E A C P also calls for growth contiguous to the Town so that infrastructure
can grow with the development. It calls for non-resort atmosphere, no gated private communities,
affordable housing incorporated into all new developments, diversification of our economy, and a
respect for wildlife and the environment.
The Frost Creek plan meets none of these criteria. A 1041 permit is not warranted here
with this development because it would duplicate services already in place and encourage sprawl.
Recently, the Board of Commissioners made a public statement in opposition to Amendment 24, the
so-called growth amendment. Their basis was that they wanted communities to maintain local control
over their development. She agrees. However, if they grant Frost Creek any permission to move ahead
by granting a 1041 permit, they are taking the local control away from the Town of Eagle and setting a
dangerous precedent that a developer can play the County against Towns. Perhaps the Board could also
oppose amendment 24 on the basis that we already have in place good working Master Plans and
Subarea Plans, but we're ahead of Amendment 24 in this regard. But how good are our Master Plan and
Subarea Plans if you choose to ignore developments that blatantly do not meet the requirements put forth
in those plans? It is your duty to put your personal bias aside and make decisions based upon the legally
binding Master Plan and Eagle Area Community Plans.
In yesterday's hearing Commissioner Stone made a point identifying the number of units that
Adam's Rib originally proposed for lands it formerly owned farther up Brush Creek. She submitted that
this is totally irrelevant to the discussion here. Mr. Kummer is a businessman. And he was paid very
well as we all know, 14 million for his lands along east and west Brush Creek. His comment would
indicate that he believes there should be some sort of quid pro quo for Adam's Rib in this business
transaction, should be allowed greater density in developing his other lands, that he be given special
dispensation from adhering to the Master Plan because he sold off some of his other lands. She strongly
disagrees. That would not be evenhanded governing and would endanger the valid use of other good,
above-board land planning tools such as the transfer of development rights. Strong evidence has been
put before the Board during this hearing. She urged the Board to examine it carefully. When they have
given it great consideration, she hopes they will see in approving a 1041 permit or any further approvals
for Frost Creek would be in violation of their oath to uphold the law, to serve all the people of Eagle
County, and would be a blatant abuse oftheir power.
19
10-18-2000
Ms. Kincaide read a letter from Cynthia Lepthian who could not be present today. She read the
letter as follows:
"To the Eagle County Commissioners, I was on the citizen advisory committee for the Eagle
Area Community Plan when it was decreed. The development of that plan involved many well attended
meetings with vigorous input. I think that the plan should not be ignored. It calls for housing
development contiguous to Eagle and not miles up Brush Creek. Please stick to the Eagle Area
Community Plan and Eagle County Master Plan and do not approve a 1041 permit for Frost Creek
subdivision. The reason that Amendment 24 is on the ballot is precisely because County Commissioners
are ignoring plans that are in place. If you would like to keep decision making local, maybe you ought to
follow the locally made decisions."
Mr. Fritze stated they have the opportunity to ask questions of the citizens if they desire. He has
taken it by your actions that the Town of Eagle and the applicant there is no desire to ask any questions.
Commissioner Phillips stated Ms. Kincaide did state that she was a part of the Eagle Area Plan
committee and she remembers that very well. Also are you aware of this document that the Board
received yesterday regarding Adam's Rib Frost Creek 1041 application. Were you also a part of that?
Ms. Kincaide stated she does not know what document Commissioner Phillips is speaking to.
Commissioner Phillips asked have you not seen it? You have no idea of any portion of it? She
knows who brought it in.
Ms. Kincaide stated she has not read this document.
Mr. Sands asked to examine the document.
Commissioner Phillips stated her question was, is she aware of that document?
Ms. Kincaide stated she is aware that Public Council of the Rockies, that they are in contact with
Public Council of the Rockies and that we are as a citizens group.
Commissioner Phillips stated so you are part of this citizens group.
Ms. Kincaide stated she is part of Concerned Citizens of Eagle County.
Commissioner Phillips asked if the author of this letter is here today?
Ms. Kincaide answered yes. She suggested any questions the Board has regarding that document
personally be directed to her when she speaks.
Commissioner Phillips stated her question was, are you aware of this document? And you are
and admitted that you are part of these citizens filings.
Ms. Kincaide stated she is a member of Concerned Citizens of Eagle County. She is a substitute
teacher, a freelance writer and a community activist.
Commissioner Phillips stated she is not sure the record needs to reflect the content of the letter.
It is a letter received from the Public Council ofthe Rockies. It was faxed here. It is to the Board of
County Commissioners regarding Adam's Rib and discusses on behalf of an alliance of Citizens for
Tomorrow and the Concerned Citizens of Eagle County. That's for the record.
Mr. Sands asked that the entire document be made a part ofthe record.
Commissioner Phillips stated they will as Exhibit No.1.
Jim Bottomley, 20 year resident of Eagle County and lives in Beaver Creek, stated he was not a
stranger to the Brush Creek area. He stated he has climbed many of the peaks in the New Yorks and it is
one of his most favorite places in Colorado. He speaks in opposition to the 1041 because he believes in
spirit it's contradictory to both the Eagle County plan and the Town of Eagle plan. He believes to do
other than to support those plans, sends the wrong message to the community.
Ted Seipel, resident of Eagle County, stated he was here representing Chris Lundholm who could
not be present. He read her letter into the record as follows; "Dear County Commissioners, I am unable
to attend today. Please accept my comments. I am very much opposed to the 1041 Frost Creek plan. It
would be a monumental mistake to approve a development so inconsistent with the Eagle County Master
Plan. With your decision to deny this project, you will be doing what is best for our fine community by
allowing Eagle to grow from within. Thank you, sincerely, Chris Lundholm."
20
10-18-2000
Mr. Seipel stated with that out of the way, he has been a resident of the Brush Creek valley for
three decades and is very much opposed to the 1041 Frost Creek plan. There are many arguments. The
Board has heard them all. He would just like to say that as being elected officials, guardians and
visionaries voted into office by this community, they have an obligation to meet the needs of the
community before they meet the needs of a developer. It is his opinion that they are in no way meeting
the needs of the community by allowing a development seven miles outside the Town of Eagle. It's
inconsistent with every criteria that this community has in place to control growth. He would appreciate
it if the Board would at least have some objectivity in this process as it seems to him that, with all due
respect, that you two seem to have some personal agenda. It's embarrassing to sit here and watch public
officials. They have made up their minds before, the jury is in here and he would appreciate them going
back to the middle of the road viewing this with a little more objectivity.
Chairman Stone stated thank you for your comments but you were incorrect. This Board does
not have their minds made up.
Mr. Seipel stated he appreciates that.
Mr. Sands stated Mr. Seipel indicated that it was his opinion that two Commissioners are
predisposed as to the issues that must be made in this hearing. Could he state for the record the basis for
his opinion.
Mr. Seipel stated the basis for his opinion is the fact that the work, the effort is over whelming
against this project. The negatives far outweigh the positives and it flies in the face of logic.
Commissioner Phillips stated that's your opinion. She believes he has the biased opinion. The
Board is trying to look at it on both sides. They have to consider all information, not just what they
want.
Rosie Sherwood, resident of Brush Creek for 30 years. Her comments do further discuss the
Master Plan and she hopes the Board will allow her to perhaps discuss them in light of someone that was
here through the entire presentation yesterday and perhaps from a different point of view a little bit. At
the conclusion of yesterday's hearings and testimony, she would have liked to think that it had become
more clear to everyone what the Town of Eagle has been trying to accomplish throughout their historical
dealings with proposed development of Brush Creek. They have been a body of elected officials striving
to adhere to the planning tools set before them to determine the future of a very unique valley, and they
have remained true to their commitment to carry out their decisions as mandated by the vote of the
majority oftheir constituents. They did not waiver when pressured to compromise this commitment in
exchange for high-stake real estate trade-offs and they did not settle for less than what they felt was a
correct and most legal plan for the Frost Creek area. They have consistently stated that Adams Rib plan
for Frost Creek is unacceptably outside of the Regulations for development within our County Master
Plan and our own Eagle Area Community Plan. In light of facts presented yesterday by highly
competent witnesses, this Board of Commissioners must at least recognize that the Town of Eagle has
been striving to function within a set of rules that they feel they are legally bound to follow.
In the recent past Commissioner Phillips stated in a Guest editorial of a local newspaper that it is
time for local governments to begin working together in harmony towards a greater goal of agreement on
important issues. An important first step would be for this Board to deny this 1041 permit and begin to
solve the common problems they both share because of a developer who for almost 30 years has refused
to plan within the rules. Thank you very much for your time this morning.
Commissioner Phillips commended Ms. Shearwood on staying for the entire presentation the day
before. She stated she also went to the Town of Eagle, which most of the people did not, when it came
time to speak in opposition. She still didn't change her mind. She believes she has her mind definitely
made up that she is opposed to it and she are not going to waiver regardless of what she hears and that's
a good thing, because that's the way she feels. Also, the Board remanded this to the Town of Eagle twice
and twice it's come back. She stated she would like to see the County and the Town work together.
Ms. Shearwood stated she was pleased to see that Guest editorial commenting that, and believes
21
10-18-2000
that it's timely that these government entities work together because obviously this piece of property on
Frost Creek should not bear the brunt of people disagreeing for this length of time. She stated she would
like to say that as a member of the citizens committee that did help establish the Eagle Area Community
Plan, she went into that meeting having an opinion as to what this plan should include and what it should
direct for growth, and feels the majority of the people listened to her suggestions and she believes her
opinion is based somewhat on popular majority. It was a very fair process.
Chairman Stone thanked Ms. Shearwood for her reasonable comments. There is no reason to
make snide comments or personal comments about anybody. She never has done that.
Annie Egan, area resident, stated she is opposed to the 1041 permit application for Frost Creek.
After the testimony yesterday she is more convinced than ever that the Eagle Area Community Plan and
the Eagle County Master Plan are adopted and therefore binding documents. And more important than
this is her incomprehension that some of our elected officials show total disregard for these documents.
As Mr. Seipel so eloquently put it, liThe nature and purpose of Master Plans is a blue print for the future
growth in the area." It is up to the Board, our elected officials, to use them accordingly. It goes without
saying that location and density are most obviously the backbone of any development in our valley. And
for Mr. Knight to make light of these two ingredients is ludicrous. He had stated that this PUD proposal
is in compliance with the Master Plan when it most obviously is not. The density is 10 times what it is
zoned for, it is clearly not contiguous with the Town of Eagle. As we all know, the Town of Eagle has a
brand-new water treatment facility and for Adam's Rib to propose a gross up zoning requiring a
duplicate facility is in total disregard for state statutes, not to mention once again disregard for our
Master Plan. She does not believe that the Board should approve this 1041 permit for Frost Creek PUD.
She stated she would like to go on record to state her disappointment in the obvious intentions behind
the questioning. It's the form of questioning, it's the body language, it's the attitudes which have given
her the feeling that the Board already has their minds made up. She related she had this feeling before
Mr. Seipel spoke. It appears that the Board has their minds made up.
Commissioner Phillips stated she was wrong. This Board does not have it's mind made up. She
asked if she had gone to the Town of Eagle and talked to them about having their minds already made
up.
Ms. Egan stated yes, she went to all their meetings.
Commissioner Phillips asked if she was a member of this group also.
Ms. Egan answered yes.
Paul Kunkel, area resident, stated he had a younger son who is in an environmental consultant
and works for a power plant. Now, he asked the Board to imagine that his company, proposed a power
plant up our creek, and they were living there, they had a place on Brush Creek or Salt Creek up the
valley, and they gave all good reasons why it should go in. Just consider for a minute how they would
feel. It's just a matter of Goliath coming into your community and taking over, influencing others, and
those little people are left behind. He apologized he cannot speak of these things without emotion. It is
not in the nature of a small community such as Eagle to undergo change so suddenly. He even hesitates
to call this a community. He is connected with the land, with the valley as it is. It's going to change.
Let's change it slowly and with great inner thought.
Jerry Fedrizzi, area resident for the past 32 years. He would like to state that he is in complete
Agreement with those who have spoken in opposition to the 1041. He strongly urges the Board to deny
the Frost Creek 1041.
Karin Gustafson, area resident stated she is an attorney and project director of Public Council of
the Rockies. She is here on behalf of Alliance of Citizens for Tomorrow and Concerned Citizens of
Eagle County. She stated she submitted a written brief yesterday which the Board has and it is marked
as Exhibit 1. Commissioners, because she has submitted a detailed written statement and because of the
volume of comments and testimony they have heard here over the last day and a half, she is going to
limit herself to one point. That point is that this application is premature. It's premature for two reasons.
22
10-18-2000
First, this application is premised on the creation of a special district to finance improvements which lie
outside of the original golf course property. It's clear, under the 1983 Agreement, that this cannot be
done without the Town's consent, which this applicant does not have. What she thinks they have heard
here over the last day and a half and she has only been privy to comments from yesterday through folks
from Alliance of Citizens for Tomorrow and Concerned Citizens of Eagle County, the Town and the
applicant have a lot of issues to work out, and whether they are resolved swiftly and amicably in a series
of meetings or whether they are resolved through protracted litigation, those issues need to be worked
out. Frankly, she believes the Board would be doing the applicant and the Town a favor by requiring
that to happen sooner rather than later. Unless and until this applicant obtains the Town's consent upon
which this 1041 permit application is premised, this application is premature. The second reason the
application is premature is that the applicant has failed to take the necessary steps to obtain an
amendment to the Eagle County Master Plan. As it is now, this development and this 1041 permit
application conflict with the Eagle County Master Plan. Basically, this applicant is asking the Board to
either ignore that Master Plan, which they cannot do under Colorado law with the Conner indication and
others under the express language of the Eagle County Master Plan Alternatively, the applicant is asking
this Board to effectively amend the Master Plan by citing changed circumstances. Well, that's not the
law. Again, in Colorado law, Colorado Revised Statutes section 30-29-101 et seq. and the express
language of the Eagle County Land Use Regulations allow only one body and that's the Planning
Commission to amend the Master Plan. Now, this applicant is perfectly entitled to seek that amendment.
It can be asked of this Board to direct the Planning Commission to amend the plan, to bring it up to
speed with changed circumstances, if, in fact, there are changed circumstances, but it hasn't done that
yet. And until and unless it does that, again, this application is premature. She would ask that until
those two things are accomplished, this application either be denied or tabled.
Commissioner Phillips asked if Ms. Gustafson mentioned that she had received all this
information from the people that she is representing.
Ms. Gustafson stated she would like to clarify that she has seen most of the written submissions
that were offered prior to the hearing. She was not able to attend yesterday.
Commissioner Phillips stated that was her question, because here it has that Eagle County staff
and so on and so forth, have mentioned that the Town of Eagle, members of the public have all amply
demonstrated. Since we hadn't heard anything from the public until today and then she mentioned
Northwest COG, the Board has not heard from them yet. She stated she has not heard from the Eagle
County Engineer yet, so some of these were information that you received from other sources?
Ms. Gustafson stated information that was part of the written submissions.
Mr. Sands stated for the record he would like to clarify the Board has heard from Northwest
COG, it's an exhibit in the Town of Eagle's exhibit book.
Commissioner Phillips stated not from the representative of Northwest COG because she does
know him. It's been mentioned several times, but for the record, we haven't heard from a representative
from Northwest COG yet. What you are telling me is that they were from submissions.
Ms. Gustafson stated that's correct.
Diane Plunkett, third generation Coloradan, stated the reason she moved to the mountains in
1972 is because ofthe open space and this small-town flavor that was abound. She lived in
Breckenridge briefly. Breckenridge got overdeveloped. She now lives in Edwards, and she has ridden
her horse up Brush Creek for many years. She loved Eagle for the small town flavor that it had, and
would like to say that she is opposed to this 1041 permit because she thinks the Board should listen to
the voice of Colorado over the voice of developers. Obviously from everybody that's spoken here today,
they are opposed to this, and she would think that the Board would be concerned that these are their
voters.
Belle Seipel, area resident, stated she saw this city when she was seven years old. Her dad had
taken her because he wanted to go somewhere like that. They didn't stay. She loved it and has loved it
23
10-18-2000
all of this time. This little city is growing. It needs to be loved. Don't think about the money, the what
they are going to buy, what they are going to do. Love. How many of them has lived here?
Commissioner Phillips asked have lived here what?
Ms. Seipel stated for a long time. She has been in this little place many, many times, and loved it
when she is in and when she is out. And lately since we have had all of this thing coming along, she
looked in the Bible. She does that a lot. But she realized one night when she just couldn't sleep, she
didn't get the Bible. She remembered where God gave me Abram. But I didn't get any rib. Do you get
that? Adam. There wasn't any rib. Now, you take that home and you think about it. She can't say they
do this or do that. Her only way is that the loving thing comes.
Patsy Batchelder, resident of Vail, stated what she is going to say reiterates a lot of what the other
people have said today, so she won't say too much except that she really does support the Town of Eagle
in their opposition to the Frost Creek 1041 permit application, and she knows Ms. Seipel that the
needs of the community should outweigh the needs of the developer and doesn't see any justification to
grant this land an up zoning. If Mr. Kummer wants to develop it and he has the right to, he could break
it into 35-acre lots. He can do that by law. As other people have mentioned, there have been a lot of
other developments like that which have worked out nicely, the Nottingham Ranch, Cordillera, as well
as Castle Peak Estates just outside of Eagle. She would also like to make the point that after this hearing
concludes, if she is correct, from having read in the Vail Daily yesterday, the Planning Commission is
planning to hear another density busting proposal that has been proposed by Mr. Kummer. In the Daily
she read that there will be two I8-hole golf courses, two 9-hole golf courses, a 120-room hotel and a 153
main and accessory living units and that is about 35 times the density that would be allowed under 35
acre zoning and although she realizes it's closer to the Town and is eligible for greater density under the
Master Plan, the way it's proposed once again, it just exceeds advisable density limits.
Mr. Sands stated for clarification, it's about a quarter after 11 and under the pre-hearing order
they were set to go until 12. They have subpoenaed witnesses present who have traveled great distances,
Steamboat Springs, for example. By his count, they are on their 4th witness and have approximately 13
more to go.
Chairman Stone stated they would have to go fast.
Mr. Sands stated he was looking for direction so the public knows how long the Board does
want to go today, where are they going from here?
Chairman Stone stated they will not go any later than 1 o'clock today, and that they're going to
end up taking this up at an additional time. Does that answer your question?
Mr. Sands stated he believes when they broke he had asked Mr. Lochhead had he seen Boots
Ferguson's reply regarding the 1983 Agreement that's contained in Exhibit A-13, and Mr. Lochhead was
responding to his question, did Mr. Ferguson's letter in any way alter his position regarding what that
1983 Agreement requires.
Mr. Lochhead answered no.
Mr. Sands stated he understands the position of Mr. Lochhead, it really doesn't matter whether
the Town system water improvements are going to be financed with the district or otherwise. The size
of that district is beyond what was proposed in '83 must be approved by the Town and any other
improvements constructed or financed by the district, whether it be roads, sewer, whatever, must be
approved by the Town, is that correct?
Mr. Lochhead stated that's correct. And that's all set forth in paragraph 16 C of the Agreement.
Mr. Sands stated he would like to go on to another subject, turn your attention back to Exhibit 2,
the augmentation decree. He stated in Exhibit A-14, Exhibit A-14, a letter from Holland & Hart, Mr.
Ferguson, to the County Planning Commission, and in this letter, the last sentence of the second
paragraph, says, "Therefore, the decree and applications for the legal source of supply of the project
require the discharge to be in the immediate vicinity of the project site." He stated they heard that a lot
yesterday from the applicant's witnesses, when in response to the questions asked on their application, in
24
10-18-2000
response to the criteria, in response to COG's request for additional citing alternative analysis, they
continually come back and say, no this augmentation plan requires that plan to be where they
proposed it; is that true under this augmentation decree?
Mr. Lochhead stated that's not his reading of the augmentation plan nor his recollection of the
plan. Specifically, paragraph 8 C of 6 of the augmentation plan which is Exhibit No.2, case No. 81 CW
479 which relates to municipal difficult versions for the golf course residential component, which is on
the Frost Creek property, relates to the location of return flows from wastewater treatment service from
that development, and it specifically contemplates a variety of possible alternative locations and types of
wastewater treatment. For example, it contemplates the potential for a wastewater treatment plant at the
golf course site. It anticipates the possibility of septic tank leach field systems at the golf course site.
And it also contemplates the possibility of wastewater treatment service at the Town of Eagle's
wastewater treatment plant.
Mr. Fritze asked if the Board had Exhibit 2.
Mr. Ferguson asked Mr. Lochhead to turn to the 1983 Agreement that he was testifying from.
Oftentimes agreements contain in their terms all the interests and intents of parties?
Mr. Lochhead stated oftentimes they do.
Mr. Ferguson stated oftentimes do they not?
Mr. Lochhead stated sometimes the Agreements can be supplemented by the intent of the parties
in entering into the Agreement.
Mr. Ferguson stated but generally the intent of the parties is contained within the Agreement.
Mr. Lochhead stated it should be.
Mr. Ferguson stated ifhe could please go to paragraph 10 D, and he believes that's on page 20, he
testified that one of the purposes of the Town entering into this Agreement was to limit the scope of this
project; is that correct?
Mr. Lochhead stated no. There were several purposes of the Town one of which was the
Agreement between the Town and Adam's Rib that the Town be the sole provider of water service below
its treatment plant. Another purpose of the Town was to assure that the development of a special district
and the facilities that were developed by a special district or special districts were undertaken in
conformance with the Town specifications, that the boundaries of the district were in compliance with
the terms of the Agreement, that the facilities be constructed in a manner that was compatible with Town
facilities, but it was not the intent of the Town to limit development to the 200 EQR at the golf course
property .
Mr. Ferguson asked ifhe could show him where in the Agreement it states that the Town of
Eagle was to be the sole provider of water services from the water treatment facility down.
Mr. Lochhead stated he referenced three letters that had been written by Adam's Rib to the Town
of Eagle.
Mr. Ferguson stated however could he show where that is in the Agreement?
Mr. Lochhead stated as he mentioned earlier, oftentimes the intent of the parties can serve as a
background and supplement for what the meaning of the Agreement is.
Mr. Ferguson stated the Agreement does not provide that.
Mr. Lochhead stated specifically, the Agreement does not provide that.
Mr. Ferguson asked isn't it possible under the Agreement that the developer had the opportunity
to transfer water taps from Mill Park to the golf course and if the conversion is done, the total EQR that
could have been transferred had it been done before 1993 would equal 315 EQR?
Mr. Lochhead stated he has not read paragraph 10 D with that 315 EQR number in mind.
Paragraph 10 D does provide a mechanism for the transfer of taps from Mill Park to the golf course site
and he assumes from the question that might add up, might possibly add up to 315. That was for a
10-year period which has expired.
Mr. Ferguson questioned if that was correct.
25
10-18-2000
Mr. Lochhead answered yes.
Mr. Ferguson asked him to go to paragraph 11 and read the first sentence into the record.
Mr. Lochhead read "the developer at its sole expense shall construct and install the physical
facilities necessary for the extension of municipal treated water service from the Town's then existing
facility to the golf course and Mill Park Developments, including ponds or other raw water storage
facilities sufficient for the storage of water pursuant to any decree planned for augmentation for water
service to the golf course and Mill Park Developments together with such intake and out let facilities,
meshing devices and other equipment as may be required by said decree or by the division engineer for
water division No.5, which facility shall be designated on the utilities plan to be prepared by the
developer."
Mr. Ferguson asked him to review paragraph 12, and describe its provisions to the Board.
Mr. Lochhead stated paragraph 12 provides that after the facilities that are referenced in
paragraph 11 are completed as shown on the utilities plan, the Town would inspect those, certify
conformity with Town specifications. It provides for inspection procedures by the Town for those
facilities and provides that upon the completion of construction, that the developer, Adam's Rib, would
convey those facilities to the Town based on appropriate legal descriptions and deeds of conveyance.
Mr. Ferguson asked was the purpose of this paragraph to protect the Town's interests in ensuring
that all of the facilities were constructed in accordance with Town specifications?
Mr. Lochhead stated all the water facilities, yes, that were referenced in paragraph 11.
Mr. Ferguson asked what was the title of paragraph 16.
Mr. Lochhead answered special district.
Mr. Ferguson asked him to read the title and first sentence of subparagraph A.
Mr. Lochhead stated subparagraph A says formation. The parties agree that the developer
may in its sole discretion cause the formation of a special district or special districts pursuant to the
special district act CRS 1973 section 31-1-101, et seq. as such act may be amended. For the purpose of
financing the construction of water facilities and improvements which are the responsibility of the
developer pursuant to this Agreement."
Mr. Ferguson asked ifhe would agree that those facilities improvements are those that are
articulated in paragraph 11 that was just read?
Mr. Lochhead answered yes.
Mr. Ferguson asked him to read the title and first three sentences of subparagraph C.
Mr. Lochhead read appellate for Formation-Intergovernmental Agreement. The developer shall,
as part of the formation of a proposed special district and as the organizer thereof, include the following
terms and conditions within the organizational petition in the service plan for the district. The
developer agrees that, in the formation of a special district, the district's power shall not be used to the
injury ofthe Town. The parties agree that injury will not occur if the following terms and conditions are
included within the petition and service plan, and ifthe district and Town enter into an
intergovernmental Agreement pursuant to CRS 1973 section 29-1-201 et seq. that includes, without
limitations, the following terms and conditions." And then it goes on to specify 14 conditions.
Mr. Ferguson stated that will be in the Intergovernmental Agreement.
Mr. Lochhead stated in the Intergovernmental Agreement and that should be included within the
service plan.
Mr. Ferguson stated under 1 CW 479, in the event the Town of Eagle does not provide
wastewater treatment service and therefore the effluent is not treated through the central treatment
facility of the Town's, what were the remaining three options in the decree?
Mr. Lochhead stated he believes there were a total of three options, one of which was service
through the Town's wastewater treatment plant. The second was a treatment plant at the golf course
which was designed to potentially serve the east Brush Creek municipal component. And the third
option would be septic tank leach field systems.
26
10-18-2000
Mr. Ferguson asked him to read the first complete sentence on Page 31, beginning on line 4.
Mr. Lochhead read 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, occupant the measure the outflow and account for the consumptive active use on Exhibit E.
Mr. Ferguson stated there were 4 alternatives planed in the decree.
Mr. Lochhead answered yes.
Mr. Ferguson asked if he remembers what the constraints for the outflow of any central
wastewater treatment facility that was used other than the Town's in the decree?
Mr. Lochhead stated his recollection is that the outfall needed to be upstream from the head gate
of the Love White Ditch.
Mr. Ferguson asked and downstream of the Town of Eagle?
Mr. Lochhead stated downstream from the Town of Eagle's water intake.
Mr. Ferguson asked if he recalled whether or not this decree permits land treatment of the treated
effluent?
Mr. Lochhead stated he does not believe it does. That was one ofthe concerns that the Town
had, was that there not be land treatment at the golf course development. The reason for that was the
combined difficult versions at east Brush Creek that the ski area and the large municipal component at
the ski area, combined with difficult versions and depletions at the golf course development could have
adverse effects to the Town of Eagle's water rights.
Mr. Ferguson asked ifhe would agree at the time that one of the interests of the Town was
preserving or protecting the in stream flow from injury?
Mr. Lochhead stated yes, it was a legal requirement that was a mutual interest of both Adam's
Rib and the Town.
Mr. Sands stated if he understands this augmentation decree, this was based upon of the ski resort
that was being proposed, including a ski village, as it's referred to in this Agreement as the east Brush
Creek municipal component. Now that they know that there won't be an east Brush Creek municipal
component, there won't be that ski village, are the Town's interests different today than they were when
this Agreement was negotiated?
Mr. Lochhead stated that's tough to answer because he does not represent the Town on water
rights matters.
Mr. Sands stated they can defer to Mr. Fifer on that. He stated Mr. Ferguson had him read a
number of sections into the record. In consideration of those sentences, portions of sections, Mr.
Ferguson wanted him to focus on, as well as other important parts of this Agreement, is it still his
professional legal opinion that this Frost Creek Development as proposed constitutes a breach of
contract under this 1983 Agreement? If so, could he please state why?
Mr. Lochhead stated the requirement of the Agreement is that Adam's Rib for the scope of
development and the type of development that is proposed in this application is required under the
terms of the water service Agreement to comply with the terms of paragraph 16 C. And the terms of
paragraph 6C are not limited to the facilities that are referenced in paragraph 11 of the Agreement, and
specifically by way of example, paragraph 16 C, 2, 3, and 4 refer specifically to facilities which are not
covered by this Agreement. And so it is clear that the intent in the direct provisions of the Agreement
apply to any special district not just to a special district formed for the purpose of constructing the
facilities that are required under the Agreement.
Mr. Ferguson stated paragraph 16 begins as discussed with the provision that the formation of a
special district for the purpose of financing the construction of water and sewage improvements here is
permitted. Obviously there is a disagreement as to whether that reference to special district which as you
noted is particularly put in quotes, controls the remainder of the paragraph. He directed his attention to
paragraph 16 C 14 and ask him to read that provision.
Mr. Lochhead stated "upon the construction of the last facility or improvement as set forth in the
27
10-18-2000
service plan the district shall file a petition for dissolution pursuant to CRS 1973 section 32-1-701 et seq.
as the same may be amended and shall faithfully prosecute said petition. The special district may remain
in existence under the terms of a dissolution decree for the purpose of retiring any remaining debt of the
district. II
Mr. Ferguson stated that means in this case if a special district does not construct and is not
formed to finance the construction of the water facilities for a project, but is formed for the wastewater,
the development of the wastewater treatment facilities and systems, that when the debt is paid off, the
district must dissolve under this provision? Is that correct?
Mr. Lochhead stated if the Town is going to convey those facilities. Because the whole
Agreement contemplates that for those facilities which are going to be conveyed to the Town, that is the
mechanism by which the district will operate.
Mr. Ferguson asked where does it say, where is that limitation in that particular subparagraph?
Mr. Lochhead stated paragraph 16 C5 provides that all facilities constructed by the district shall
be conveyed to the Town immediately upon completion of construction and certification by the Town of
such facilities are in conformance with Town standards and specifications.
Mr. Ferguson stated in 14, where is the limitation on facilities to be conveyed to the Town?
Because it does say facilities and improvements as set forth in the service plan.
Mr. Lochhead stated the service plan requires that all of the provisions of paragraph 16 C be
included. Including the conveyance requirement.
Commissioner Gallagher asked what is land treatment?
Mr. Lochhead stated land treatment is a process whereby treated affluent could be applied to a
golf course, for example, and that would be a final treatment process, as well as a method of reusing
water. He thinks the Town's concern in the context of the negotiation of this particular decree was that
increases the consumptive use associated with that water.
Commissioner Phillips stated through this Agreement does he feel at that time that the Town of
Eagle with Jim Seabry as Mayor, was looking at the possibility of annexing this into the Town? Does he
feel that there was any discussion or was this something that would probably be a stand alone at that
time?
Mr. Lochhead stated the Town was seeking to protect its interests in the event that it could be
annexed in the future. The Agreement doesn't specifically talk about annexation, and because of the
distance between that development and the Town, it wasn't really on the table. But the Town was
certainly wanting to protect its interests in the event that it in the future it were to be annexed.
Obviously if that development as contemplated at that time had been constructed, it would have been a
huge change for Brush Creek valley and annexation he thinks was an impossible thing to think about.
Commissioner Phillips stated at that time things were slow around here. There was not a lot that
was going on at all, and they were looking, she believes she remembers when the Board of County
Commissioners were approving a lot of things just to have something to come to help with the
economics. Does he feel that maybe that was a portion of the approval at that time? Or was it just
something that the Town wanted to do?
Mr. Lochhead stated his recollection is that economic development of the Brush Creek valley, of
the Town, associated with the recreation and development of the ski area was seen by a number of
residents as a good thing and part of why the Town was working with the developer at that point in time.
Mr. Sands asked if Mr. Lochhead, thought from the Town's perspective, a major reason for
this Agreement was to allow the Town to control its own destiny of Brush Creek?
Mr. Lochhead stated absolutely.
Mr. Sands asked Mr. Kummer to come to the microphone. He asked if he understood Mr.
Lochhead's testimony that he believes that a primary purpose for entering into that Agreement was to
prevent the creation of a number of special districts, a fragmentation of water suppliers, and to
allow Eagle to be the sole water supplier in the Brush Creek valley below the water plant that was for
28
10-18-2000
under that Agreement? Do you agree that was the intent of that Agreement in 1983?
Mr. Kummer stated no, he totally disagrees with that.
Mr. Sands asked him to explain why.
Mr. Kummer stated there was one reason and one reason only that Agreement was formulated.
They had a great deal of difficulty and what he wanted to do was to somehow solve this problem for our
ranch people up the valley. Susan Sanfelip, Eagle Town Manager at that time, actually had the plans
formulated to construct a water treatment plant at the present site to the water tank at the bend. He
thought that was a bad idea, and approached Susan and asked if there any way they could persuade her to
move the water plant up the valley so that their people could be served with a healthier form of water?
He stated she worked with the Town Board and the Mayor and came back and related that was a great
idea and they would love to do it, but couldn't afford it. At that time he had related they were most likely
going to build in the very near future, and would like to see if there is some way they could facilitate the
construction of that at a more appropriate point. They at that time had already received approval of their
PUD in October of 1982, and were moving forward hopefully to start some construction in the near
future. She figured out how much she needed, that's pretty much the way it happened, and he turned his
people to work. Mr. Kummer stated he could not realize a more inappropriate characterization of this
gentleman here of what really happened. He didn't deal directly with Mr. Lochhead. But it would seem
to him that there was almost no way that anyone could have ever had the interpretation that was
presented here this morning. It just simply was not anyplace on the horizon at all. The lawyers sat down
and there was never any intent that it should in any way encumber their flexibility. It was simply the
providing of quality water to their employees and other inhabitants of that valley. That is all it was. It
was never more and it was never intended to be more, and no one who has a competent memory could
ever remember it in any other way. That's the case.
Mr. Sands asked who is Bob young?
Mr. Kummer stated Bob Young was Manager at Adam's Rib during those number of years.
Mr. Sands handed Mr. Kummer what he has marked for identification as rebuttal Exhibits, E-43,
E-44 and E-45.
Chairman Stone stated let the record show there are three new Exhibits. The first one is a letter
with H BE Corporation letterhead dated March 18, 1983, which is E-43. The second one with Adam's
Rib letterhead dated February 24, 1983 titled E-44. And the final one on HBE Corporation letterhead
dated April 12, 1983, Exhibit E-45.
Mr. Sands asked Mr. Kummer to look at Exhibit E-44, the letter dated February 24, 1983, signed
by Robert P Young, Vice-President Adam's Rib recreational area. There is handwriting in the margins
of that letter. Let the record reflect that handwriting, those margin notes, were not Mr. Young's, but are
believed to be placed there by Mr. Lochhead. And these are out of his files. So they don't expect him to
consider that margin notes as a part of the original letter.
Mr. Ferguson asked if that includes underlines that are not margin notes?
Mr. Sands stated yes, that includes the underlines. Those were placed there they believe by Mr.
Lochhead. They are not suggesting they were put there by Mr. Young. He asked if Mr. Kummer had a
chance to read that letter?
Mr. Kummer answered no.
Mr. Sands asked Mr. Kummer to take a minute and read the letter.
Mr. Kummer stated he does not believe he is going to read the letter here at this time and try to
make something out of it. He does not think that's appropriate.
Mr. Sands stated he has asked the witness to read the letter so he can question him about specific
paragraphs of the letter. He asked for a decision from the Board and asked Mr. Kummer be directed to
read the letter.
Mr. Kummer stated he would read the letters ifhe had to. He read the letters.
Chairman Stone asked if Mr. Kummer had read all three letters.
29
10-18-2000
Mr. Kummer answered he had.
Mr. Sands stated he would like the record to reflect two things. First during the break it appeared
clear that Mr. Kummer did review the letters, but with his attorney. And secondly, he would like the
record to reflect that the margin notes he was referring to earlier were contemporaneous notes made by
Mr. Lochhead in '83. They were not notes made in anticipation ofthis proceeding.
Mr. Sands asked Mr. Kummer to turn his attention to Exhibit 45, E-45, the April 12 letter. He
just testified, that this 1983 Agreement was just a matter of sale of water taps and the fact that the Town
was having problems with its water system, nothing more. That was the one and only purpose as you
described it. Turning his attention to the first paragraph ofthe April 12, 1983 letter, be Exhibit 45, it
indicates it was signed by you as president of H B E Corporation. That first paragraph reads, and he
quotes, "I want to take this opportunity to express my appreciation to you, the Board of Trustees and the
representatives of the Town for your willingness to meet and discuss a water service plan for the entire
Brush Creek valley. I believe that we are in concurrence that the need for this plan and in fact, recognize
that this Agreement involves far more than the sale of water taps." So he in fact did agree, did he not,
that the Agreement would involve far more than the sale of water taps?
Mr. Kummer stated as he indicated in the statement that was just read, the foundation of what he
said was the basis of what they arrived at. It was nearly 20 years ago, so he is not going to try to define
that.
Mr. Sands stated Mr. Lochhead indicated that he believed the major intent of the '83 Agreement
was to ensure that a single entity would serve all the Brush Creek valley. Do you agree with that point?
Mr. Kummer answered no.
Mr. Sands asked him to turn to page 2 of the letter, the second full paragraph. He quotes,
"During our discussions we have all agreed that a single entity serving the Brush Creek valley offered
many benefits for the entire Eagle Brush Creek valley community. We have in fact been contacted by
other developers interested in a cooperative effort. We have been and remain willing to provide water
service to all our properties. However, the presence of two competing water utilities in the valley may
not be in the best interests of the Town or Adam's Rib." That is what he said in 1983; isn't that correct?
Mr. Kummer stated that is what is in this letter.
Mr. Sands stated let's turn our attention to Exhibit E-44. That's the February 24, 1983 letter to
Mr. Lochhead signed by Robert Young who he previously indicated was an employee of Adams Rib.
Looking at that second paragraph, it reads, the beginning of the second sentence, "Based on your
correspondence and discussion with the Town Board, we, meaning Adam's Rib, perceived that the Town
sees a real benefit and has a desire to locate the water treatment facility at the highest practicable point in
the Brush Creek valley. Obviously this plant relocation would expand the service area and lower the
per-unit service cost. From your comments and correspondence, we also understand that from a water
augmentation and physical water supply viewpoint, the presence of a 100 acre reservoir would be desired
by the Town." Those are Mr. Young's comments. Did you agree with those in 1983?
Mr. Kummer stated those were Mr. Young's comments and they are generally consistent with
trying to develop an up valley supply of water, yes.
Mr. Sands stated now look at the second paragraph that Mr. Lochhead started back in 1983,
noting this is a real benefit. "The Adam's Rib project provides a unique opportunity for the Town to
achieve both of the above mentioned benefits. In addition, with the treated water line extending the
length of the Brush Creek valley, there is an opportunity to ensure for the orderly provision of services
and avoid the proliferation of small, inefficient and sometimes inadequate service districts." In his
testimony Mr. Lochhead said, one of the reasons was to ensure there would be a sole supplier of water in
the Brush Creek valley to avoid a proliferation of small systems and special districts, and yet in the
comments that were read back objected to Mr. Lochhead's comments. Isn't it a fact that in 1983, Mr.
Young on his behalf said exactly that?
Mr. Kummer stated he corrected Mr. Young. And in fact, in the subsequent letter you will find
30
10-18-2000
the correction there that they moved from inadequate service districts to specifically identified water.
Mr. Sands stated then look at the earlier letter dated March 18, 1983, which is Exhibit E-43.
This wasn't written by Mr. Young. It is signed by him on the 4th page; isn't that correct?
Mr. Kummer stated that was correct.
Mr. Sands stated look at the very first sentence of what he told the Town's Mayor Seabry in 1983.
The first paragraph, "over the past few years the Town has had numerous presentations during public
hearings, in documents and in correspondence articulating the need for joint planning and water service
cooperation in the Brush Creek valley. Certainly this desire was confirmed by the Town Board and Mr.
Kummer during their meeting last fall when they discussed the possibilities of such cooperation and the
Town indicated that the proposed improvements to the existing water treatment plant were an interim
measure leading to the ultimate location of a treatment plant up valley in perhaps the area of the Town's
intake structure." Now skipping down to the third paragraph, first page, "Our mutual interest is in
determining how the entire Brush Creek valley, be it within the Town boundaries or part ofthe
community in a broader sense, can be served with safe, potable water at the least cost to each consumer.
I am confident that the proposal contained in this letter accomplishes that goal without additional costs
or indebtedness on the part of the Town." Those were your words, right, Mr. Kummer?
Mr. Kummer stated they are in the letter.
Mr. Sands stated it goes on to say, next paragraph, "The relocation of the Town treatment plant at
the upper end of the Brush Creek valley achieves the goal that the Board talked about during our meeting
last fall." Skipping in a sentence going on to the third sentence, "More importantly, a plant in this
location means the entire valley could be served with treated safe water and an end to the practice of
selling raw water, but potential need for treated water above the existing treatment plant is apparent,
even aside from our golf course residential develop. The cost to move the plant at a future date could
well require additional debt financing or if the Town could move the plant, proliferation of small water
districts would be intended with the costs of inefficiencies that also have to be born by consumers." So
once again, in his own words, he seems to indicate that a mutual goal was to avoid the proliferation of
small water districts. Isn't that true?
Mr. Kummer stated that was corrected from the letter that he applied to other service districts.
Mr. Sands stated the 1983 Agreement that has been admitted was the result of negotiations that
these letters represent; is that not correct?
Mr. Kummer stated apparently so, yes.
Mr. Sands stated the Town would request that Exhibits E-43, E-44, E-45 be admitted into the
record.
Chairman Stone stated the Board will accept them into the record.
Mr. Ferguson stated he understands the only objection is to relevance, although he does and the
evidence rule goes beyond evidence, so they can be submitted into evidence.
Mr. Fritze stated he was just going to mention because it's an issue throughout, that depending on
whatever the evidence is as the pre-hearing order indicates, the Board will weigh any evidence and the
credibility, the authenticity, the hearsay character and the lack of a proper foundation. So he is not
saying that he will apply that to anything in particular, he is just saying that with regard to all evidence
that will be done by the Board.
Mr. Sands stated he understands that. They are submitting those as parole evidence, that's a legal
term, but Mr. Fritze knows it. Parole evidence as to the intent of that 1983 Agreement. Simply put,
parole evidence, the law says you can go beyond the four corners of a contract when the intent of an
Agreement seems unclear on its face, then you can bring in outside evidence to establish intent. And
they believe that under the circumstances, there is some ambiguity, they can go outside the four corners
of the document to show what the intent of that '83 Agreement was and those letters do it, despite the
testimony that Mr. Kummer gave earlier.
Mr. Ferguson stated they would suggest that the Agreement is put on its face and should be read
31
10-18-2000
accordingly and that the intent of the parties is incorporated in the Agreement. Obviously they are not
asking the Board to deal with that at this time. Since Mr. Sands offered these three Exhibits into
evidence, perhaps they also ought to bring in E-40, E-41, and E-42 which were never formally offered.
Mr. Sands stated that is true. They would ask that those be made part of the record.
Chairman Stone stated they are accepted into the record.
Mr. Sands asked Mr. Kummer to turn to Exhibit 28. It's a letter on H BE Corporation letterhead
dated June 6, 1997 to Keith Montag of Eagle County. He asked if he recognized that letter?
Mr. Kummer answered yes.
Mr. Sands asked him to explain what that document is?
Mr. Kummer stated it's a withdrawal of the sketch plan application and a request for a refund of
the $52,000 paid to the County and withdrawal of an application.
Mr. Sands asked what sketch plan does that refer to?
Mr. Kummer stated he is not sure he knows exactly which one.
Mr. Sands asked if they have had more than one sketch plan on file with the County?
Mr. Kummer stated he would rather Randy Cloyd relate which one that is.
Mr. Sands stated Randy Cloyd couldn't tell them. He was asked the question yesterday.
Mr. Kummer stated he does not know which one that is.
Mr. Sands stated he will see ifMr. Montag can track it down.
Mr. Ferguson stated at this time since Mr. Kummer is present, they would like to give him the
opportunity to make a brief presentation on his efforts to develop this property and the history associated
with that.
Mr. Kummer stated he has listened to some of the characterization of himself and it's impossible
to deal with. In his 71 years he has gotten quite a few things done. And he believes one only gets things
done by being reasonable in the way they approach this.
In early 1971 he began to assemble land in the Brush Creek valley and east and west Brush
Creek. He has spent enormous amount. The reason he chose that particular area was the Forest Service
had identified the Adams mountain as a potential ski area. So it wasn't Fred Kummer that came along
and said he would like to build a ski area on that mountain. It was the Forest Service that identified it as
a resource. They acquired the land and then the Forest Service had to go through a rather lengthy
process which ended sometime in the late '70s or maybe even '80s. And at that time they assembled their
PUD, submitted it and won approval on the PUD sketch plan in 1982. As you can see from some of
these letters and things, they have tried diligently to work with the County, with the Town, that vote in
October 14 of 1982 was unanimous. In any negotiations while one goes back and forth, the underlying
principle of why they came to do this, why they worked with Susan Sanflileap positively and the Town
was to clean up a terrible water situation. So they worked with the Town through that. Certainly there
was the possibility that if it became in everyone's interests, that it might very well have a single water
supply in the valley. And a single wastewater treatment plant. Certainly those were always ones that
they were willing to discuss and work with anybody, and they continue to be, to have that
interest.
They moved through and in 1997, when it became obvious what it was going to take at that time
he was about ready to turn 70 and decided to get going with this thing one way or the other. So they
had a local Forest Ranger that he felt was going to thwart the thing, so he decided he would abandon the
idea of developing the ski area. And at that time it seemed that maybe they would win a great deal of
favor from some of the people here who have gotten a little older but the faces are always the same.
In the submission it has been his sense that the County Commissioners have really wanted to
stick together. Bud Gates was the first man, the first person to send us back and say, it didn't make any
sense that they don't work more closely with the Town. They went back in a diligent, a truly diligent
fashion the second time and it was Johnnette Phillips was the one who really was up front. Then
Commissioner Stone also brought all the forces of the County to try to resolve this thing. And certainly
32
10-18-2000
Jim Fritze has tried very hard to do that.
They have tried everything that he knows how to do to develop this in a logical sort of way. He
has heard it's too big, its too fragmented. In some way or other they have finally come on back to the
County, which frankly he believes everyone here would have liked to have seen it work out with the
Town, but he doesn't think that there was any way that was possible. And the very last thing when they
finally did withdraw everything from the Town, it was very, very obvious to him that the Town was not
interested in any reasonable resolution of this problem at all. They were left with one alternative. He
has been beat over the head by this water and by this wastewater. In most metropolitan areas water is on
a regional basis, not owned by any Town, and water as well as wastewater, and from that way he
believes they can manage it on a much more logical sort of basis. As they know, wastewater was on a
regional basis and they tried to get the Town to go with that, but he just doesn't know where else to go.
They believe they have a good, solid plan and one that does respond to all of the planning and zoning
issues that are on the table, and they are certainly hopeful that they win the Board's approval.
Mr. Sands stated the most recent time he came to the Town of Eagle and filed annexation
petitions, that ultimately culminated in withdrawing those petitions before any decision was made, isn't
that true?
Mr. Kummer stated yes that's correct.
Mr. Sands stated he learned shortly before withdrawing the development and the annexation
petitions that the Town of Eagle had retained the land use consultants to revise their plan in a way that it
would meet the Master Plan and could be developed; isn't that true?
Mr. Kummer stated he did not know that. I knew they had hired someone.
Mr. Sands stated Randy Cloyd works for Adams Rib, correct?
Mr. Kummer answered yes.
Mr. Sands stated he was at the meeting when it was learned that our planning review consultants,
Clarion Associates, had reviewed your most recent submittal, came to the conclusion that it did not meet
the criteria ofthe Town of Eagle Master Plan or the Eagle Area Community Plan, and learned that the
Town then was going to enter into a phase 2 contract with Clarion Associates to try to work with them
and redesign the project. At that point they withdrew it. Does he know anything about that?
Mr. Kummer stated yes, he does. He was the one who made the decision to do that. Randy or no
one else would do that.
Mr. Sands asked why that was done?
Mr. Kummer stated because he felt there was not a sincerity on the part of the Town to really
reach an Agreement. He had wasted enormous amounts of time and enormous amounts of money.
They have approval from the Town of Eagle for the Ranch project. In exactly the form that's
here. And in fact, they had reached Agreement on the golf course, but they couldn't submit it
because ofthe three mile distance. But they had gone through the sketch plan level, and so he had good
reason to believe that they had reached some general level of Agreement. Then when they met with Mr.
Fritze, and he was in the middle of the thing, there was a very finite number of issues that they thought
were real. The only point he was trying to make in his dissertation is that he truly believes that they have
been in earnest in trying to find a solution, and he is ready, willing, and has been ready, willing, and able
to go through a process. He cannot continue to go through a process that is never ending.
Mr. Sands asked if Mr. Kummer, had told the Town of Eagle, it's his plan and his way or no
way?
Mr. Kummer stated that's inappropriate to even say that.
Chairman Stone stated they have actually gone beyond the time. It's almost 1 o'clock and they
had originally scheduled this in their sincere hopes that they could be completed by noon today. It's
obviously not going to happen. What he would like to do is end the discussions for today and look at
their calendars and determine when they could continue hearing this file.
After discussion, all parties have agreed that they will continue this file until tomorrow,
33
10-18-2000
beginning at 8 a.m. in the morning with a short break at 9:30 to take care of other business, and then
some unspecified lunch break, ending at approximately 5 o'clock p.m. In anticipation of not completing
the file tomorrow, they would look at having a final day on the 31 st of October to complete it if not
completed tomorrow.
Commissioner Phillips stated they will need a court reporter on the 30th if there is any discussion
whatsoever regarding this file?
Chairman Stone stated they will need the Court Reporter.
There being no further business this meeting was adjourned until October 19,2000.
Attest:
Clerk to the Bo
c~.~
34
10-18-2000