Taxpayers potentially on the hook for costs

Lazaro Aleman
ECB Publishing, Inc.

An alleged error by the planning official in approving a non-residential minor development -- an error allegedly compounded by the Planning Commission's affirmation of the official's decision -- is the subject of a 65-page complaint filed in the circuit court on Sept. 14.
The complaint stems from the action of former planning official Bill Tellefsen in approving the placement of a liquified petroleum gas bulk storage and distribution facility (LP facility) on a property on Shiver Road just off of U.S. 19 North – a parcel that is designated as mixed-use business/residential (MUBR) on the Future Land Use Map (FLUM) of the Comprehensive Plan.
The complaint, filed by plaintiff Marcia Elder, who owns a property adjacent the LP facility, names Jefferson County, Morris Petroleum Inc., and Morris Propane LLC, as defendants. The action argues that the development is inconsistent with the Jefferson County
Comprehensive Plan and is of a nature that adversely affects Elder and others of the neighboring property owners.
The complaint further argues that the county violated the plaintiff's right to due process by failing to notify her and the other affected landowners of the LP facility proposal and conduct the required public hearings.
It asks the court to declare the county-issued development order inconsistent with the Comp Plan, direct the county to rescind the order, and award the plaintiff court costs.
According to the document, the LP facility, consisting of an 18,000-gallon bulk storage tank and several other smaller tanks, became operational in February 2017, “absent a development application to Jefferson County.”
The complaint holds that on or about Oct. 6, 2016, Morris Petroleum applied to the county for a “911/driveway permit”, which application did not mention the LP facility but in fact served as the basis for its construction.
Indeed, according to the complaint, a proper development permit application for the LP facility wasn't submitted until March 28, 2018, a little more than a year after the facility came into existence. And the belated application, per the complaint, called for “expansion of the facility to include two additional 30,000 gallon bulk storage tanks and an unnamed number of smaller tanks.”
States the complaint, “A letter of notice of the planning official's intent to approve the application was issued by the county on April 18, 2018. A draft report by county staff, upon which the decision was based, was dated March 29, 2018, with a final report of Findings and Determinations issued May 29, 2018. Plaintiff appealed the planning official's decision on May 17, 2018. On August 9, 2018, the Planning Commission, convening in a single-evening session as the Board of Appeals, approved a 48,000-gallon liquified petroleum gas storage and distribution facility” at the Shiver Road location.
The complaint argues that allowing the LP facility to continue and expand is not only illegal and incompatible with the surrounding land uses, but it poses safety risks to the adjoining properties, reduces their values and degrades the area's aesthetics, among other negatives.
The complaint holds that by treating the project as a minor development, instead of as a major development or a special exception as it warranted, the planning official erred and in effect bypassed reviews by the Planning and County Commissions, and hence the public, which reviews would have likely resulted in a different outcome. It further argues that in approving the development order, the county violated multiple provisions of the Comprehensive Plan that control the types of developments that may occur on a given site.
The plaintiff claims that upon first learning of the development in January 2018, she contacted the planning official and received an email response from him assuring her that the development had not yet been approved and that public hearings would soon be held before the Planning and County Commissions and duly advertised.
Subsequently, the complaint states, the plaintiff submitted various requests and comments to the planning official over a two-month period and even filed a code enforcement complaint but she never received a response from him, forcing her finally to resort to a public records request to get any information.
It wasn't until May 17, according to the complaint, that the plaintiff learned that the planning official had approved the project on April 18, at which point she appealed the decision to the Planning Commission.
It was this appeal that resulted in the Planning Commission holding a quasi-judicial hearing on Aug. 9 to determine the project's fate. At the hearing, which proved quite lengthy, the two sides and their experts testified and presented evidence to bolster their respective arguments. Among the various points made, the plaintiff and her expert witnesses cited the project's inconsistency with the Comp Plan, its violation of several Land Development Code provisions, its unsuitability for the Shiver Road site, and the risks it posed to neighboring properties.
The defendants, on the other side, argued that the LP facility classified as a retail use and further cited a provision in the LDC that they argued allowed certain limited types of industrial development along arterial highways, “including low-impact industrial facilities with general overall characteristics similar to general commercial.”
The county never called a witness from the Planning Department “to authenticate and otherwise explain the county's factual basis for issuance of the development order,” according to the complaint.
At the conclusion of the several hours hearing, the planners upheld the planning official's decision by a 6-2 vote, prompting the 65-page complaint.
Which document maintains that if the county had applied the special exception process, as the LDC required and the project warranted, performance standards would have kicked in and the outcome would have been different.
Those performance standards, as outlined in the LDC for special exceptions, include a traffic impact study, as assessment of a project's compatibility to existing uses, and buffering requirements where applicable, among other conditions.
The complaint notes that based on information obtained via public records request, the planning official had concerns about provisions in the LDC requiring special exception classification for LP gas facilities. Nonetheless, the complaint alleges, the planning official “decided to not recognize the development as a special exception and to instead classify it as a minor development,” which action it characterizes as serious errors.
States the complaint, “In adopting the development order, the county failed to comply with essential requirements of law, failed to support its decision with competent substantial evidence, and did not provide the petitioner with procedural due process.”