On Thursday, March 4th, the Board of County Commissioners (BOCC) approved the staff recommendation to withdraw the special use review application for the proposed compost facility, in what many have seen as a victory for open space activists and locals. The request came after weeks of public backlash about potential impacts that the facility could have on the surrounding area and concern that a conservation easement protecting the property from development had been extinguished. The move will allow current commissioners to publicly engage with the project, something they weren’t allowed to do while it was under Special Review; it had entered the review phase under the prior board of commissioners, of which only Commissioner Matt Jones remains (no relation to former commissioner Elise Jones, who served at the same time).
Recently seated Commissioner Marta Loachamin states, “The status of a quasi-judicial case has been difficult for us as county commissioners, as it immediately limited our ability to speak freely, as a new Board in January 2021, with the community.”
Commissioner Matt Jones asserted that, “we absolutely need composting options” but that “we should not use open space for a composting facility.” He also labelled the actions of opponents of the project as “grandstanding” while acknowledging that the county “created the problem and it’s not going away.”
Commissioner Claire Levy said the county’s actions may have been in part due to “tunnel vision”, that she wanted to know “whether the compost will be usable by our Boulder County farmers”, and that “ending this application is the best way for us to get this information and be able to engage with the community.”
Information has continued to surface about the early stages of the project, the role of the Resource Conservation Advisory Board (RCAB) and various discrepancies in their meeting minutes, and an email chain acquired by Yellow Scene that was referred to by a CDOT employee as, on face value, “traffic study number manipulation to avoid building the acceleration lanes.”
Rainbow Nursery was an important property in the county because it had long held a Conservation Easement (CE) protecting it from development. In 2013, the prospect of purchasing the property was brought to the BOCC because the property was for sale and the CE allowed a Right of First Refusal. Staff did not recommend exercising this right to purchase the property and the commissioners voted to deny their right. The BOCC also authorized the Director of Parks and Open Space to decline such options in the future unless it was deemed in the best interest of the county to purchase.
On April 5th, 2018, Parks and Open Space (P&OS) staff recommended exercising the first right of purchase to acquire the Rainbow Nursery to BOCC, who opted to exercise their right. The property was purchased on April 12th, 2018. Presenting staff, Mel Stonebraker, acknowledged that the CE on the property is a ‘fairly simple document; compared to what we would do today, it’s quite crude,” and that if the county were to decide to sell the property in the future they would upgrade the CE to match today’s standards. Stonebraker also said at the time that, “the property will be used as open space unless the county later decides the property would be appropriate for a zero waste site.”
At the same April 5th, 2018 BOCC meeting P&OS staff recommended purchasing Rainbow Nursery, former Commissioner Deb Gardener said that, “I think it’s a great opportunity” and that “there is potential for different kinds of zero waste operations there, but then at the same time there are probably a lot of hurdles around that.” Former Commissioner Elise Jones added, “It’s a great opportunity both for the water and future potential uses like zero waste.” Former Commissioner Cindy Domenico chimed in with, “It’s an amazing opportunity right on [Highway] 287.”
In an email acquired by Yellow Scene, dated April 30th, 2018, Al Hardy, then and current Recreation and Facilities Manager for P&OS, wrote to various other county employees that the property had been purchased via Open Space funds and that there is a, “potential for the property to be utilized for county sustainability efforts (potential need for a site related to larger construction material recycling and also composting).” Hardy continued that if the location were to be used, “there would be a transfer (sale) from open space of the land to another county department” Hardy went on to say that they had attached, “2015 Phase 1 Environmental Site Assessment documents that provide there are no known significant environmental concerns at the time of the report.” It is unclear if the report suggests whether or not the County had been studying the property with the intention to use it in the future.
On May 1st, 2018 a closing memo was released which stated that the property had been purchased for $985,000, which included “$385,000 worth of water rights[,] certain mineral rights and one development right.” The memo also states that “administrative services is considering the possibility of using the site as part of the county’s zero waste initiative,” and ends the summary asserting that, “The county previously held a conservation easement over the property. That easement interest has merged with [the] fee title, and no longer exists.” A fee title is a full interest in a property.
Hardy also corresponded with Darla Arians, currently the Division Manager at Resource Conservation Division (RCD), on May 29th, 2018 about a meeting the next day to which Arians responded that the Resource Conservation Advisory Board (RCAB) Infrastructure Committee is “taking a preliminary look at the site to discuss potential use around C&D processing, EAB management, debris management, and potentially compost and/or anaerobic digestion.”
Within a month of purchasing the property, county employees had begun actively considering using the Rainbow Nursery for zero waste initiatives, even though the property was purchased via Open Space funds. At the time of this writing, the Rainbow Nursery is still considered to be Open Space; the CE is still considered extinguished.
RCAB Bylaw Appearance of Discrepancies
“to advise the Board of County Commissioners in reducing the amount and toxicity of waste generated in the county; to research, review and recommend changes in policy related to waste reduction, reuse, recycling, and composting; to provide input on the development of facilities and programs; and as a result of these efforts to help Boulder County, its communities, and partners to conserve mineral, fossil fuel and forest resources, and to reduce environmental pollution.”
RCAB has discussed the project at several meetings, sent memo recommendations, such as for PEH Architects, and served as “key informants to the decision makers, acting as external stakeholders and representatives of the municipalities to make sure there are no fatal flaws as the reports come out.” Its members include local experts and leaders from various non-profits, organizations, municipalities, and other local government departments. All are volunteers.
In the RCAB bylaws it states that the cities and towns within the county and the county itself, as well as Resource Central, CU Recycling, Eco-Cycle, and Western Disposal Services, may appoint one representative each. The BOCC will also appoint one additional waste ‘hauler’ as well as five at-large members. It does not specify what roles these representatives may or may not have at their respective organizations or departments or whether members of the same organization or municipality may serve representing different entities.
YS has found various errors in the RCAB meeting minutes, some of which are not in line with the bylaws. It has also been noticed that employees of local organizations, such as local waste haulers, will represent other entities, such as municipalities or ‘At Large”. When asked whether the bylaws are meant to be followed exactly, Tim Broderick, RCAB staff Liaison and a Boulder County employee, explained that, “The bylaws are guiding principles that the advisory board agrees to follow.” Broderick provided clarification to each error.
The bylaws state that RCAB shall be limited to 21 members, but at all meetings in 2020, there have been 22 or 23 members. At the October 2019 and September 2019 meeting there were 24 and 22 members respectively. There have also been concerns that some members of the same organization or department are members of RCAB.
Broderick: “There are 21 members of RCAB. To date our staff member who takes the notes has been listing both the in attendance and not in attendance members from the same organization. This makes it appear as if there are more members then there are. I am working with the staff member to make this clearer in future note taking.”
At the February 2020 meeting, Neal Lurie representing “Center for ReSource Conservation,” and Brandon Hill representing Resource Central, were both listed as members. The Daily Camera reported in 2017 that the Center for ReSource Conservation had changed its name to Resource Central.
Broderick: “Neal Lurie represents Resource Central. It is common practice in RCAB when members have scheduling conflicts, they will send replacements to represent them. Brandon Hill is Neal Lurie’s replacement for the same organization.”
At the October 2019 meeting, Darla Arians representing Boulder County, and Cody Lillstrom representing RCD (assumed to be Resource Conservation Division), were both listed as attending members. Darla Arians is an employee of RCD and has spoken for RCD at RCAB meetings. Lillstrom has been at other meetings, such as the October 2020 meeting, listed under ‘Guests’ as ‘Cody Lillstrom – Boulder County’ and at the February 2019, also listed under ‘Guests’ as ‘Cody Lillstrom – Boulder County RCD’.
Broderick: “RCD is not a member of RCAB. If listed this is an error and they should be a guest. Darla Arians is a member of RCAB and represents Boulder County.”
Bridget Johnson represented the Town of Jamestown at five meetings in 2020 and all meetings in 2019. At the February 2020 and May 2020 meetings Johnson represented Green Girl Recycling, which she founded.
Broderick: “Bridget Johnson represent[s] Jamestown. She will often give updates on Green Girl Recycling events in Jamestown so sometimes in the notes there is cross over.”
Stephanie Walton and Tony Raeker have both been listed as members representing the City of Lafayette at every meeting since October 2019. They were both listed as “Present” at the October 2019 meeting.
Broderick: “Tony Raeker would represent Stephanie Walton. Tony Raeker, I believed recently stepped down from his position and Lafayette is actively working on a replacement.”
Tim Towndrow and Steve Derus were both listed as representing Republic Services at all 2020 meetings.
Broderick: “Correct, this is again because of how the staff member taking notes was listing both the in attendance and not in attendance members of the same organization in the minutes.”
Mircalla Wozniak was listed as representing At Large at the December 2020 meeting but, at the end of the minutes during the vote to support the proposed compost facility and a letter of support to BOCC, Wozniak was listed as representing the City of Louisville voting in favor. Mark Persichetti was also listed as voting in favor and representing the City of Louisville. Wozniak is an employee of Boulder County.
Broderick: “This is a staff error that will be corrected.”
Brian Tewey was listed under “Guests” at the September 2020 meeting as, ‘Brian Tewey – PEH Architects’. In an email, Tewey explained he is “a part-time project architect with the Building Services Division of Public Works.” He is also the listed applicant on behalf of the county on the Planning Application form for the proposed facility. YS reached out to PEH Architects, Tewey, and Andrew Barth; all verified this was a staff error and that Tewey is only employed by the county.
Although the bylaws allow for five At Large members, there have been six At Large members at the December, October, September, July, June, and May of 2020 meetings, and at the October, September, and April of 2019 meetings.
One of the “At Large” members is Lisa Speermont to which Broderick clarified that, “Lisa Speermont is not an at large member. This is a staff error.” This would explain some of the meetings, but it doesn’t explain the April 2019 meeting which also has six and Speermont wasn’t one of them.
Russ Callas has also been an “At Large” member; Callas is also the President of Haul Away Recycling. YS reached out to Tim Broderick for clarification as to what ‘At Large’ means, but no comment was provided at the time of publication.
While none of this is specifically illegal, the de facto impression left on the community and other outside observers is of a poorly run, improperly managed advisory board that has been serving as “key informants to the decision makers”. In regards to the errors, Broderick explained that, “[w]e do our absolute best to maintain accuracy and integrity with the minutes but as you can imagine over 2 years of minutes there are bound to be errors.” Per their bylaws, meeting minutes are open for public inspection for transparency. Although the occasional spelling mistake is understandable, this series of “staff errors” certainly leaves a bad taste in the mouths of activists speaking out against this project.
RCAB Meeting Minutes Changed
YS discovered that the meeting minutes for the December 9th, 2020, meeting in which Tyler Kesler had initially been depicted as representing the Town of Erie were changed sometime in February. Tim Broderick, Senior Sustainability Strategist for RCD and the County Liaison to RCAB, explained via email that the change was due to a “staff error in how it referenced Tyler Kesler and his role in RCAB.”
Although not an official member, Kesler has joined RCAB meetings listed either under ‘Guests’ or under ‘RCAB Staff Liaison’ as Tyler Kesler – Commissioners’ Office/Sustainability since at least January 2017. Kesler is currently the Sustainability & Water Conservation Specialist at the Town of Erie. According to his Linkedin, Kesler worked for Boulder County since April 2016 and moved to his role at the Town of Erie in December 2019.
Kesler’s name first came into the spotlight at the February 9th, 2021, Erie Board of Trustees meeting, where there was outcry specifically from Trustee Brandon Bell that a town employee had endorsed the composting facility project without the Board’s consent. At the meeting, Bell stated, “[We need] to figure out why we have people going out and endorsing this facility, staff members, when this board never voted one time to accept this facility.”
After the Erie BOT meeting, the minutes for the December 9th, 2020 RCAB meeting, in which Kesler endorsed the project on behalf of Erie, were changed and a new set of minutes were uploaded. In the original minutes Kesler is “representing the Town of Erie,” and “would like to endorse RCAB’s letter of support with conditions.” The updated version states, “Tyler Kesler, Boulder County citizen and Town of Erie Sustainability Coordinator, recognizes the positive impact this proposed facility would have on waste diversion.” The two versions of minutes can be seen here:
Furthermore, the original minutes listed three distinct concerns that residents have voiced including, “potential noxious fugitive odors, contamination debris, and increased traffic in the surrounding areas.” In the minutes uploaded after the Erie BOT meeting, the specific concerns were removed and were replaced with, “The Town of Erie submitted a Development Review on 12/11/2020 that provides the definition to how the Town defines Open Space as well as conditions to which we would like to be recognized as potential issues, some of which Erie residents have expressed concerns.”
Via email, Broderick explained that, “[w]e misstated that he was representing the town of Erie, which we know is not correct. This error was brought to light at the Erie BOT meeting hence the change so close to the occurrence of that meeting. We updated this staff error, to reflect his correct title as it relates to RCAB. There is no reason the concerns were updated and Tyler is happy to stand behind either statement from the December or January version of the notes BESIDES (emphasis his) the staff error.”
It’s not clear what Broderick meant by “January version of the notes” as the change was uploaded after the February 9th Erie BOT meeting.
In a public records request acquired by YS, Kesler sent an email on December 9, 2020, to Deandra Croissant and Tim Broderick asking for his comments to be included in the minutes. Broderick responded asking Kesler to, “clarify which specific comments you would like to see included in the notes? I know you expressed wanting concerns to be included in the letter specific to traffic, smell, and hauler cost?” Kesler then provided the following to Croissant and Broderick asking them to copy and paste it into the minutes.
“The Town of Erie would like to endorse RCAB’s letter of support with conditions expressed in our Development Review submitted 12/11. Erie would like it to be recognized that residents have concerns with potential noxious fugitive odors, contamination debris, and increased traffic in the surrounding areas. Erie recognizes Boulder County as an exemplary environmental leader and neighbor with a track record of going above and beyond environment standards at every opportunity possible and are excited about this composting facility at the Rainbow Nursery site.”
YS reached out to Broderick and Darla Arians (RCAB) for comment on when and if the changes were approved by the board; no comment was provided by the time of publication. In a separate email on March 2nd, 2020, Arians explained that she, “was unaware of any changes made to the December minutes, as this was not discussed in our January meeting that I recall.”
Residents have also questioned what future plans RCAB may have for itself, what plans it may have for the composting facility if it were to be built, and what role former commissioners played in regards to RCAB. At the May 27th, 2020, meeting, Tim Broderick explained in regards to the Policy, Planning, and Programs (P3) Subcommittee that, “if the group wants to have substantial influence in policy, RCAB must edit its bylaws, as they currently do not allow this.” The meeting minutes continue to explain that, “possible conflicts, such as if RCAB takes a different stance than Boulder County” could exist. “Boulder County’s political representatives, Mark Ruzzin and George Twigg, recommended that RCAB may want to emphasize municipal representatives putting recommendations forward, such as Erie or Lafayette. However, the group does recognize RCAB has notoriety as a unity (sic).” Whether or not Ruzzin or Twigg were at the May 27 RCAB meeting is unclear, as they are not listed on the meeting minutes as attending. YS asked Broderick to explain what ‘political representatives’ refers to, he stated it was a staff error and that Ruzzin and Twigg are part of the Commissioners’ Policy Team
Former commissioner Deb Gardener has been involved with RCAB according to the October 23rd, 2019, RCAB meeting minutes, which include that “DG [Deb Gardener] explained the BOCC gave direction to staff to continue to pursue rainbow nursery(sic),” and that “SJ [Suzanne Jones] asked DG [Deb Gardener] to keep us posted on how RCAB can be useful to this process (e.g. building public support and passing public regulation).”
Residents have also questioned Suzanne Jones, who is the Executive Director of Eco-Cycle and represents Eco-Cycle at RCAB. Jones also served on RCAB representing Eco-Cycle while Mayor of Boulder and while her sister, Elise Jones was a county commissioner. Current Mayor of Boulder, Sam Weaver, has also served on RCAB but stopped attending some time between the October 2019 and February 2020 meetings, the same timeframe during which he was elected. YS reached out to Weaver for comment on whether his election and leaving RCAB were correlated but no comment was provided. Local residents have also pointed out to YS that Dan Matsch works for Eco-Cycle but represents the Town of Lyons at RCAB. During an interview, Matsch confirmed that he represents Lyons at RCAB.
The traffic study is important because it determines whether or not deceleration and acceleration lanes would be needed for the proposed facility. Highway 287 goes along the Western edge of the property and if the new facility produces significant traffic it could create a variety of concerns, from congestion to accidents.
In an email acquired by YS between Darla Arians (Division Manager – RCD) and Cody Lillstrom (Zero Waste Program Manager – RCD), Arians asks, “Did you also complete the traffic analysis on how many of the Boulder County haulers are already traveling down Highway 287? We need this to show that the facility is not going to create a burdensome excess of new traffic.” This email was dated October 21, 2020.
Two other email chains acquired by YS provide context to the development of the initial traffic report not submitted to the Colorado Department of Transportation (CDOT). One of the emails, dated January 4th, 2021, is from Tim Bilobran, Region 4 Permits Manager for CDOT. The email is to several Boulder County employees, in which he refers to another email chain, saying, “on face value the content looks to be traffic study number manipulation to avoid building the acceleration lanes warranted in what looks to be the first September version of that study not provided to CDOT.” Bilobran continues with, “I’d associate those tactics with a 3rd party developer and not a local municipality partner as safety conscious as Boulder. I’ll hold off on reviewing the issue further until we talk.”
To ensure that YS had acquired the same email chain, Bilobran was contacted to verify. Jared Field, Communications Manager for CDOT for Northeast Colorado, responded and confirmed that, “Mr. Bilobran sent his email because he was informed about the other email.”
The email chain in question is between Chris Mirto (PEH Architects, the firm contracted to design the compost facility), Cody Lillstrom (RCD), Bob Yost (A1 Organics, who consulted with a clear eye toward running the facility on behalf of the county), and Darla Ariens(RCD); cc’d are Brian Tewey (Public Works), and Peter Heinz (PEH Architects). On August 25th, 2020, Mirto initially asked Lillstrom for more information regarding residential and commercial traffic use for the site, which Lillstrom subsequently provided.
Roughly three weeks later, Mirto stated that he had attached the, “trip generation estimate for the site” and clarifies that it is “a combination of input received from Boulder County, A1 Organics, and adjustments per our recent meeting with CDOT.” He then asked the other members to scrutinize the data so that they may, “see if any adjustments need to be made. After approval of this estimate, Fox Tuttle can get moving with the traffic report.”
Yost (A1 Organics) voiced his concern that the traffic numbers seemed far too high for the proposed facility and that, “189 trips per day on a 5 day schedule is 49,140 trips annually…. that is several times more than we see at our 2 composting sites (Keenesburg and Eaton) at which we manage 6 times the tonnage that this site is designed for.”
Lillstrom sent an email to “echo” Yost’s and explained certain contributing factors. He also provided certain options such as, “if site employees aren’t all leaving at the same time at the end of the day, we could reduce that ‘100% Outbound’ calculation down to something more realistic (75%).” And, “if there are staggered arrivals for employees, we could reduce the AM Peak Hour percentage.” Lillstrom adds that, “[w]e could do the same for General Public Access (reduce down from 25% for PM Peak Hour), in addition to reducing that number of vehicles per day of 20 down to 15 or even 10.”
PEH Architects responded in that email thread that, “Peak Hour Trips are currently calling for both an acceleration lane and a deceleration lane along the east shoulder of northbound US-287. If some of our suggested edits below can be used to modify the estimate, then there’s a potential for reducing the need for one or both of the acceleration/deceleration lanes.”
“To synthesize, we see our available modifications as:”
- Reduce number of Landscapers estimated to access the site down from 75.
- Reduce number of Residential Compost Pickup/Dropoff vehicles per day down from 25.
- Reduce the number of General Public Access vehicles per day down from 20 (we suggest 10).
- Reduce 100% figure for AM Peak Hour/PM Peak Hour trips for Site Employees if staggered arrivals/departures are anticipated.
- Reduce the 20% figure for AM Peak Hour/PM Peak Hour trips for Residential Compost Pickup/Dropoff (we suggest 15%), assuming that people will access the site more regularly throughout the day rather than all toward the end of the day.
- Reduce the 25% figure for AM Peak/PM Peak Hour trips for General Public Access (we suggest 15%), assuming that general/event access won’t all last all day and won’t have a high percentage of people trying to leave at the same time at the end of the day.
Lilstrom responded to these suggestions with, “I just spoke with Darla and we both agree that all 6 of the items on your list should be adjusted.” Lillstrom added that he was waiting to hear back from Western Disposal on their experience with landscapers and public drops of organics. He also added the following to option 1. “a. We likely will be able to greatly reduce this as many landscapers in the Boulder/foothills area of the county will likely continue to use the Western Disposal drop-off because of location.” It’s unclear what credentials are required to make such decisions or assumptions about traffic.
CDOT Communications Manager, Fiel, told YS that the numbers in the current traffic report that was eventually submitted to CDOT are accurate and that CDOT, “added a provision to the permit that the actual numbers will be reviewed after the first year to ensure the traffic is where it was expected to be.”
When asked why Bilobran referred to the email chain as potential manipulation and whether Fiel had an explanation, he said, “the explanation was that the internal communication between the architectural design and the traffic design was confused and not worded well. When he [Bilobran] looked into it, he [Bilobran] realized there was no manipulation.”
After weeks of both backlash and support, in an area that values its open space, values composting, and seeks to hold power accountable to residents, the project has been withdrawn so that the county can reassess. It certainly does not mean that a composting facility won’t and shouldn’t happen sometime in the future; it just means that the county has recognized that there are errors that need to be addressed.
It is ‘to be determined’ as to what the county will do next, but with Commissioner Matt Jones speaking against the use of Open Space land for this facility, it seems that the Rainbow Nursery may be spared from development. The next step would be to reinstate the Conservation Easement (CE) or to establish a new, more robust one for the property, as was mentioned. The new CE could potentially provide the Rainbow Open Space more protections than ever before and could even specify that a future merger will not extinguish the CE.
For a project that has seen its fair share of rollout hiccups, “staff errors”, and several questionable maneuvers by those involved, it will be up to the county to reassure its citizens that the proper checks and balances exist when the County is the applicant, the developer, and the reviewer.