Friday, September 20, 2019

County submits recommendation on Foxtrot subdivision wastewater issue

Public hearing will continue July 15

By Olivia Lueckemeyer

The debate over whether the proposed Foxtrot subdivision should be required to hook up to Crested Butte’s central sewage line continues, but there appears to perhaps be a compromise on the horizon.

At a county Planning Commission meeting on June 17, a public hearing was held to further discuss the Foxtrot application for a four-lot subdivision just north of town, and once again those present deliberated how Foxtrot’s wastewater should be treated.

Up until now, the town of Crested Butte has contended that Foxtrot be required to hook up to the town’s central sewage line should it come within 400 feet of the subdivision, as per an intergovernmental agreement (IGA) that was formed in 1996 between the town, county, and four wastewater treatment districts.

While the county has agreed that the applicant should be required to connect under those circumstances, there has been debate over which conditions should be set in stone prior to approval of the application.

County attorney David Baumgarten and Community Development director Russ Forrest appeared before the Planning Commission at the hearing to explain their draft staff recommendation, which had been shared with the town of Crested Butte and the applicant’s attorney, David Leinsdorf, prior to the meeting.

Basically the recommendation outlines two possible scenarios, both of which involve instances in the future when the town’s central sewage line would come within 400 feet of the subdivision.

The difference between the two scenarios lies in the hypothetical existence of onsite wastewater treatment systems (OWTS). If OWTS already exist, scenario one proposes that the county have the authority to decide which makes more sense: continuing with the present OWTS or connecting to the town’s line, under the condition that the town is ready, willing and able to provide a connection and that it “is technically and economically feasible and will materially improve both the treatment of Foxtrot subdivision wastewater and stream water quality protection, at a reasonable cost.”

To make this determination, several benchmarks would need to be considered. Outlined in the staff’s recommendation, those criteria include “the remaining expected life span on the existing OWTS systems; cost of connection; permits required for connection; availability of physical and legal access between the subdivision and the sewer line; modification of water right decrees associated with the existing discharges; and technical feasibility of a connection.”

In the instance that the town’s line comes within 400 feet and no OWTS exist, then scenario two suggests that the Foxtrot subdivision be required to connect, as long as there is legal and physical access.

Forrest explained that the recommendation was offered to Leinsdorf for review, and that upon doing so he had several edits. The Community Development staff agreed with all of the suggested changes.

One of the sections Leinsdorf took issue with included a line that allowed for the town of Crested Butte to have authorizing enforcement of the proposed conditions.

“Giving the Town, or any objector, enforcement authority is unacceptable,” Leinsdorf’s letter of revisions stated. “I am not aware of any prior instance in which the county has delegated enforcement authority to an objecting, or any third party in connection with a land use change application. For obvious reasons, no private property owner can accept the litigation risk that such a condition would involve, especially in light of the Town’s adverse comments.

“Giving the Town enforcement authority would be inconsistent with the county’s numerous acknowledgements, with which the applicant concurs, that the Town was ‘over-reaching’ and that its interpretation of the IGA and 201 requirements is overly broad,” Leinsdorf’s letter continued.

Leinsdorf also suggested that the recommendation include one additional benchmark for determining feasibility of connecting to the town’s line in the instance that OWTS systems already exist. That addition would require the county to consider the “cost of a required pump station compared to gravity flow.”

Finally, Leinsdorf’s revisions suggested that whether or not OWTS exist in the case of the town’s line coming within 400 feet, all of the criteria from scenario one should be applied to scenario two in determining whether a connection is feasible.

Baumgarten felt it important to point out what he identified as a “north star” to which the applicant, town and county are all very attentive: the quality of the water and protecting surrounding wetlands. He explained that the point of the IGA was to avoid the proliferation of OWTS and their effect on nearby wetlands and streams, and to instead connect to central systems when technically and economically feasible. However, Baumgarten contended, in this case, the necessary conditions to do so have yet to be met. And if eventually they are met, he agreed that enforcing authority should lie exclusively with the county.

“Currently I think all would agree that the conditions do not exist to require a hookup, but it may be that in the future, conditions change,” Baumgarten said. “What you will see [in the recommendation] is our best description of future possible situations, and in those situations we want to make sure that the authority to make those decisions vests in the county and doesn’t vest with somebody else.”

Interim town manager Bill Crank made a comment at the meeting, and while he said he could not speak officially on the matter since the recommendation had not been reviewed by the Town Council, he indicated that his advice to the council would be to not accept the conditions, especially since the town would essentially be agreeing to a complete surrender of its decision-making authority when considering the possibility of a connection to its central line.

“What we have is that the town is excluded from every aspect of consideration of tapping into our system; everything to do with coming into our system will be determined by the county,” Crank said. “The only thing that is mentioned that the town can do is we can sue the landowner. Well, we don’t have an interest in doing that.”

It was decided that no formal decision could be made until the Planning Commission, the Board of County Commissioners, and the town of Crested Butte had the chance to thoroughly review the staff recommendation and report back with comments and further suggestions. A continuation of a public hearing has been set for July 15 at 2 p.m. in Crested Butte.

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