In fiery meeting, Weld vacates right of way for BNSF

GREELEY — An acrimonious public hearing — complete with allegations of “appearances of collusion” between county officials and BNSF Railway Co. — ended Wednesday with commissioners voting 4-1 to vacate a portion of Weld County Road 41.

BNSF requested vacation of the road between Weld County Roads 4 and 6 as part of its massive, planned intermodal facility and logistics park along BNSF tracks on the east side of Interstate 76.

BNSF officials told commissioners that the railroad had worked with neighbors to address issues such as access, emergency services, illegal dumping and maintenance of private irrigation ditches.

Jacob Woods, an attorney representing BNSF, said the vacation was necessary now for BNSF to meet its timeline for the development.

“There is a construction timeline for the project, and moving forward with the vacation at this time allows BNSF to proceed and get the site shovel-ready for future development,” Woods said.

Hudson town officials countered that the vacation would forestall the town’s MSLCAT (Mountain States Line Constructors Joint Apprenticeship & Training) annexation — located south of the BNSF project. Hudson is embroiled in litigation with Lochbuie over competing annexations of rights of way along Weld County Roads 4, 41 and 45.

Hudson officials stated that vacation of portions of WCR 41 would eliminate the contiguity required for the town to complete the MSLCAT annexation.

Nicholas Hartman, town attorney for Hudson, outlined the town’s concern.

“Procedurally speaking, the reason why we’re kind of getting into this argument between annexation and vacation is because the portion of 41 that’s being considered for vacation today, Hudson’s MSLCAT annexation, uses that to make contiguity, so if it’s vacated, it destroys contiguity,” he said.

BNSF on Saturday submitted three annexation requests to Lochbuie, totaling 2,367 acres. Lochbuie’s Town Council gave initial approval to the annexations Monday.

A BNSF spokesperson, in an email to BizWest, stated, “On May 4, BNSF Railway filed Petitions for Annexation with the Town of Lochbuie to support BNSF’s plan of operating an Intermodal Facility and Logistics Park in Weld County. Lochbuie is well positioned to meet the project’s infrastructure demands and help the railroad keep pace with future customer growth. BNSF has existing operations in Hudson at its established Logistics Center and continues to invest in northern Colorado, bringing world-class freight logistics that benefit the Rocky Mountain region’s economy. We look forward to a continued partnership with both Lochbuie and Hudson.”

At Wednesday’s hearing, however, Hudson council member Candace Nolf, reading a letter from the Town Council, suggested that BNSF and Lochbuie might have had prior knowledge of the board’s expected action on the vacation request.

The letter, obtained by BizWest, states, “ … What is more troubling is that BNSF developed a plat that presupposes the vacation of the portion of WCR 41 at issue today, and Lochbuie has accepted it in on Monday without any acknowledgement of the creation of an additional conflicting annexation with MSLCAT — seemingly also presupposing the vacation of that portion of WCR 41 and the dismissal of Hudson’s annexation of MSLCAT.

“Unless Lochbuie and BNSF can read the (Board of County Commissioners’) minds or see into the future, it seems that Lochbuie and BNSF already know what the BOCC is going to do today before the BOCC has even met. We hope that the County has not already decided on the vacation of WCR 41 to pave a path forward for Lochbuie by destroying the one laid by Hudson.”

Hudson asked the commissioners to delay a decision on the vacation until an annexation election occurs.

“Hudson requests that the county not vacate right away at County Road 41 because doing so would not only short circuit Hudson’s ability to pursue the conflicting annexation, but more importantly, it would eliminate the possibility that citizens adjacent to the conflicting right away could have a voice in resolving this matter.”

Nolf reiterated concern that the board had already decided to vacate the road.

“As a council member standing up here, it already looks like a decision has been made,” Nolf said.

That prompted Commissioner Lori Saine to say that she was “particularly alarmed when I hear things like, ‘it sounds like we’ve already made a decision.’ I hope that that’s not the case. I hope that there wasn’t a thumb on the scale type of effect from anyone at Weld County government because we should be neutral between two towns. That’s fair to both towns. 

“Any type of appearance of collusion would be really bad,” Saine added.

Weld County board chair Kevin Ross objected to Saine’s reference to collusion.

“I do take exception to saying there was collusion with this board or myself,” Ross said. “I have not contacted the town of Hudson, or been contacted by you (Hudson). I have not contacted nor been contacted by the town of Lochbuie, nor have I contacted BNSF or had BNSF contact me. I take those comments extremely seriously, as it takes a hit at my character, just as I’m sure all board members would do the same.”

Commissioner Perry Buck agreed.

“It just infuriates me, though, that the commissioner is impugning the motives of the board,” Buck said. “And let that be on record that that is such an insult. So I’ll leave it there.”

“There should be no reason for offense, unless you’re actively taken … I said, ‘the appearance of,’ ma’am,” Saine said.

“Ms. Saine, you’re done,” Ross interjected.

Saine: “Thank you, Mr. Chair. I said ‘the appearance of’ …”

Ross: “Ms. Saine, I have not given you the floor to speak.”

Saine was the lone “no” vote on vacation of the right of way, with other board members stating that BNSF had met all requirements for vacation of rights of way as outlined in the Weld County Code.

Hudson and Lochbuie have locked horns over multiple annexations, with both communities vying to annex land around BNSF’s multi-billion-dollar project.

Hudson annexations around BNSF include:

• MSLCAT, 120 acres owned by Don Sack at the southwest corner of Weld County Roads 4 and 45. The property would provide a new facility for Mountain States Line Constructors Joint Apprenticeship & Training, which serves the electrical construction industry. The MSLCAT annexation also includes rights of way along the Interstate 76 frontage road southwest from Hudson to the Lochbuie town limits, along with rights of way along Weld County Roads 4, 41 and 45.
• Hudson in February approved the Long annexation, including 323 acres between BNSF’s intermodal development and new logistics park. The property is near the northwest and southwest corners of Weld County Roads 8 and 45.
• Ranchos East Annexation No. 1, encompassing 80 acres, not counting rights of way. The properties are owned by Shawn and Susan Wiant, and Rancho De Los Tiempos Buenos Partnership LLC. The parties applied to the town for annexation on March 29.

Lochbuie annexations include:

• South Weld Annexation Nos. 1, 2 and 3. South Weld Annexation No. 1 includes 194 acres immediately south of the planned BNSF facility, at the northeast corner of I-76 and Weld County Road 4. The property is part of 700 acres owned by South Weld Holdings LLC, an affiliate of Bromley Cos. South Weld Annexation No. 1 does not  conflict with planned Hudson annexations, but South Weld Annexations 2 and 3 would include rights of way that overlap with Hudson’s annexation.
• Burlington Northern Santa Fe Annexation Nos. 1, 2 and 3, including 2,367 acres.

Ongoing litigation

Hudson and Lochbuie have been embroiled in litigation over the MSLCAT annexation and South Weld Annexation Nos. 2 and 3. Lochbuie filed a petition for an annexation election in Weld County District Court on Feb. 1, noting overlapping annexations undertaken by the two towns for rights of way along WCRs 4, 41 and 45.

The two parties dispute who could actually vote in an annexation election involving rights of way, with Lochbuie arguing that Weld County itself, as owner of the rights of way, should be the only elector, and Hudson arguing that adjacent property owners should be allowed to vote.

A Weld County District Court judge extended a mediation deadline for that dispute to May 29.

Lochbuie on Tuesday filed similar petitions for annexation elections over the Ranchos East annexation into Hudson, arguing that the annexations overlap with BNSF annexations to Lochbuie.

Hudson has not yet filed responses.

Hudson on Tuesday filed a motion with Weld County District Court, seeking a declaration that Lochbuie violated a court order on staying annexation proceedings when it gave initial approval to annexation of 2,367 acres owned by BNSF on Monday.

Lochbuie has not yet filed a response.

Additional exchange between Saine and Ross

Exchanges between Saine and Ross were heated throughout Wednesday’s meeting. Here is another:

Saine: “I do believe our constituents in Hudson have pointed out this will adversely affect our constituents in the county should we take this vote. And we do have to absorb that into our decision-making. … But as far as this goes, when there’s an appearance of collusion here, sir, and I might just ask for some records to be brought to light, if that’s the case …”

Ross: “Your assertions that there has been collusion — and if you’re indicating this board — is gross misrepresentation and false.”

Saine: “So when people tend to talk back quickly, there’s something going on there.”

Ross: “Ms. Saine, you can stop right now.”

Saine: “I will also start asking for records to take a look at this because I’m very concerned even hearing that, even if our decision is a ‘no’ today.”

Weld County Code on vacations of rights of way

Section 8-16-40 of the Weld County Code delineates the following requirements for vacation of rights of way.

• Petitioner shall pay an application fee.
• The Board of County Commissioners may approve or deny any request to vacate public road right-of-way as it determines to be in the best interests of the county. The Board may consider any information or evidence it determines appropriate, including, but not limited to, the following, to be provided by the Department of Public Works:
• Existing and future access, and
• Whether the right-of-way is a maintained or non-maintained public road, and
• What the road classification is as identified on the County’s current Functional Classification Map, and
• Whether there is enough information to determine if the public needs this right-of-way in the future for items such as utility easements, etc. A title commitment or land survey plat may be required.
• No public road right-of-way that borders another county or the boundaries of an incorporated municipality may be vacated without the Resolution of the Board of County Commissioners and the consent of the governing body of the other county or municipality.
• No public road right-of-way may be vacated if any adjoining property would be without access (landlocked) by either public road or private easement.
• The Resolution vacating the public road right-of-way shall reserve rights-of-way or easements for existing sewer, gas, water or similar appurtenances, for ditches or canals and appurtenances and for electric, telephone and similar lines and appurtenances.

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