When the law calls for public hearings and the topic is controversial, how can that be done safely in this era of the coronavirus pandemic known as COVID-19? That is the dilemma faced by the Chaffee Board of County Commissioners as they attempt to structure the 1041 permit hearing on the Nestlé Waters North America Inc. application to renew the permit they have operated under in Chaffee County since 2009.
The commissioners remain committed to begin the public hearing process on Oct. 20, as planned, with Oct. 21 and 22 as contingency dates if public comment is lengthy, but the hearing location is in question. At that point, the process will have already been delayed one full year.
The original application was due to be heard in Oct. 2019, but the county failed to meet the 30-day notification requirements for a 1041 hearing. Then the first adjusted hearing date, and the second date, dropped in the middle of the pandemic. The company has been operating with a temporary permit extension which expires in Dec. 2020. The county must, by law, give public notice of the hearing, not more than 90 days and not less than 30 days prior to the 1041 hearing.
Fairgrounds to become COVID-19 compliant public hearing space
The Chaffee County Fairgrounds Main Building. Photo by Dan Smith
At issue now is where to hold a hearing that could draw large numbers of people. Even in 2009, at a time the county population was smaller and the country was deep in a recession, the initial permit public hearings drew close to 200 people and there were multiple meetings. The Chaffee County legal department said that hearings were held at the Salida Steamplant and that a couple of sessions were held at the VFW in Buena Vista.
The discussion earlier this week centered on spaces large enough to allow for social distancing to satisfy the six-foot distancing requirement. At this point, the only known sites are the south and north buildings at the Chaffee County Fairgrounds. The problem – the main building could perhaps hold 100 people, and the north building doesn’t yet have heat, and has no bathrooms.
“We’re getting questions about this application. Right now this [county administration] building is closed, and it’s not big enough,” said Chaffee County Attorney Jennie Davis. “We could use the fairgrounds. We’re told it could hold with social distancing guidelines – 100 people. But this raises due process issues because everyone who wants to attend and speak must be allowed to.”
Commissioners discussed issuing tickets for in-person attendance and putting the hearing on Zoom, or conducting the entire hearing on Zoom (the county has conducted all BoCC meetings on Zoom since last March due to the pandemic.)
Nestle bottling plant in California. Image USA Today
They asked whether there was any way the heating system approved and planned for the north building would be installed in time (It may or may not be completed.). They explored whether they could seat people outside in an overflow setup and project Zoom outside, bringing people in to speak in person in the south building in small groups. (October weather can be iffy.)
“The whole situation we’re in is ridiculous,” said Commissioner Greg Felt. “It’s been postponed a year. It was brought up at the meeting at the [BV Heritage Museum] courthouse a year ago! If we plan this as a two-night event, I’d say that the first night we cover the reports, and the second night [we do public] comments.”
Other ideas were raised during their ideation session, including; recording the Oct. 20 formal presentation and doing all public comments on Zoom, or putting the formal presentation on YouTube.
Commissioners agreed that their objectives for this hearing are twofold:
- To educate themselves and the public to the best extent possible as to what this program is that has been going on for 10 years.
- To determine how well the applicant has complied with the 1041 requirements.
Commissioners have just approved hiring a water expert consultant to advise them on the permit law and the applicant’s adherence to the requirements. The public hearing requires that they take comments from the public on compliance and other concerns.
“It seems to me we could do that presentation virtually and it might make sense to take a pause [after the staff reports, water expert comments, and applicant presentations] to allow the public to digest it, rather than the very next day,” said Felt. “I’d rather do public comment in person … a lot of people are struggling with [online] and we heard again today that not everyone has broadband.”
“I’m fine with beginning the hearing on Oct. 20 – I wouldn’t go ahead and notice everything yet, but I’d commit to that,” said Commissioner Keith Baker. “We could do that one in the evening Oct. 20 at the fairgrounds. We still have the 21st or 22nd contingency dates – or even later than that if need be. We could maximize our use of Zoom as an option. I think we need to make a commitment to set the first meeting for Oct. 20 and then refine our solution of what continuances we are going to do and what features we need. We know we want adequate time for the public to be heard, and that we have to do this in a manner that doesn’t compromise public health.”
Commissioners discussed the time needed for the initial presentations. “I’m not aware that they [Nestlé] are bringing in any experts on this,” said Davis. “My gut feeling is their presentation is an hour.”
Commissioners agreed that their schedule for the first night will include a staff presentation about what this project is, what a Colorado 1041 permit is, and what constituted the county’s 1041 powers. The public will also hear from the county’s water consultant. Upper Arkansas Water Conservancy District CEO Terry Skanga has also been invited as an outside source, to explain water augmentation. This could be followed by the applicant’s presentation.
Davis pointed out to commissioners that any questions the public has about land-use code and 1041 impacts should be referred to county staff and legal. “Regarding impact on the local water table, the question they look at is – is there satisfactory augmentation/mitigation of those impacts. Refer any questions you get to staff or county legal. You can’t comment on it.”
Commissioners moved to continue the discussion to Tues. Sept. 8 to finalize the details at the next BoCC meeting.
Larks Perch Public Hearing a test of Fairgrounds/Zoom Public Hearing Setup
The Larks Perch Major Subdivision Appeal came before the commissioners during their Sept. 1 regular meeting, postponed from the Aug. 4 BoCC meeting. Once again the applicant asked for the appeal to be continued until the appeal could be heard in person.
Commissioners discussed setting this appeal public hearing at the Chaffee Fairgrounds and using it as a test to refine their COVID-19 processes prior to the large Nestlé 1041 permit hearing. The applicant agreed to this approach.
The motion to continue the hearing to 2 p.m. Oct. 13 at the fairgrounds was made by Commissioner Baker and passed unanimously.
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