By Dave Kisker
People United for Responsible Government
Today’s column addresses a little-known issue of Weld County Government: Probable Cause and Show Cause Hearings.
When a County land use permit such as a Use by Special Review is approved, there are typically a number of conditions attached. Many of these “conditions of approval” and “development standards” are simply requirements to follow the applicable regulations and laws. But, in some cases, additional requirements are imposed, such as landscaping, noise monitoring, dust control and limitations on odors. Often these requirements are intended to improve the compatibility of operations that are quite different than surrounding uses. Failure to meet these conditions and standards can result in the revocation of the property’s permit to operate, and in a few cases has resulted in a facility being shut down.
Of course, the enforcement of such requirements is challenging. Weld County relies on reports by neighbors of potential violations, whether it’s hours of operation, excess noise, dust, odor, poor landscape maintenance, or other issues.
In the past, the first step in the enforcement was a “Probable Cause Hearing”, initiated as a result of reported violations of the approval conditions. According to Weld County Code, any person could present evidence of a violation at that hearing, including members of the public. The person against whom the complaint is made was able to offer a rebuttal. If the evidence was deemed to be substantial by the Board of County Commissioners, they could decide to go to the next step, a “Show Cause Hearing” where a more thorough evaluation of the problem was made and a solution was determined, possibly including revocation of a use permit.
The most significant recent example of this process was that of Heartland Biogas, which was found to be in violation of the applicable odor standards. After hundreds of odor complaints, a Probable Cause hearing and then several Show Cause hearings were held. It was because of very thorough presentations by the neighbors during these proceedings that the facility was eventually shut down.
On July 16, 2018, all this will change.
Because of a code change that was finalized on July 2, 2018, members of the public will no longer have any input at a Probable Cause hearing, or apparently, any access to present their findings to the Commissioners. Instead, complaints will be provided to County staff and evaluated according to unspecified criteria. County staff will then work with the party against whom the complaint is filed to solve the problem. Only if staff decides that there is no solution will the case go before the Board for a Probable Cause hearing. Even then, because there is no public comment allowed, only the staff will determine what evidence is presented for consideration by the Board. If the Board decides that the presented evidence is sufficient, a Show Cause Hearing will be scheduled. Members of the public will finally be able to present facts and evidence at that hearing.
This change in procedure should leave Weld County residents concerned. Ideally, County staff have the knowledge and objectivity to honestly determine whether a Probable Cause hearing is appropriate, and the Board of Commissioners should acknowledge that at that point, a Show Cause hearing should be virtually automatic.
However, we have seen more than a few cases in which a County planning staff decision was directed by the Commissioners. We have witnessed cases where the response to complaints was delayed to allow for correction before any inspection occurred. In the most abusive cases, the Planning staff has just been ignored by the County Commissioners.
This reduced access to the elected officials by the public seems to be the wrong direction for our County government to be moving.