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Martin Marietta loses appeal in Weld County land use case

JOHNSTOWN — When Dave Kisker sits down to enjoy turkey and all the trimmings on Thursday, there is little doubt who he will be most thankful for this Thanksgiving — a three-judge panel on the Colorado Court of Appeals.

The court ruled unanimously in favor of Kisker and seven other appellants in a controversial land use case by overturning the Board of Weld County Commissioners decision to allow Martin Marietta (MM) a use by special review permit for an asphalt plant.

The decision means MM will likely have to return 131 acres of agricultural land to the same condition it was in on Aug. 11, 2015, the day before the commissioners voted.

The decision is likely the last stop of a long two-year fight against the concrete giant and its use of prime farmland just east of Interstate 25 and US 34.

Weld’s planning department and the Weld County Planning Commission recommended against the plant, saying it would have no relationship to or dependence on agriculture, one of the needed reasons to allow heavy industry within prime farmland under Weld’s land use codes. They also cited inadequate roads and the impact on surrounding properties.

Additionally, the towns of Windsor and Johnstown, the cities of Greeley and Loveland, and Larimer County said the plant did not fit their long-term growth plans and was incompatible with surrounding land use.  But the commissioners ruled against the recommendations, saying there were more than three dozen mitigating factors that allowed its use under Weld’s code.

The residents initially appealed the case to a Weld District Court, and on Aug. 9, 2016, Judge Todd Taylor ordered the case remanded back to the commissioners to make further findings. On Jan. 27, 2017, Taylor upheld the commissioners’ decision.

The group then appealed to the Colorado Court of Appeals, who heard the case as a de novo hearing, meaning the court was not looking for errors from Taylor but, instead, with new eyes to determine if the commissioners abused its discretion.

Attorneys for the appellants identified four issues that they said required the court overturn the commissioners’ decision.

Those included that the plant did not meet residential noise standards, that the board improperly considered non-adjacent land uses in its compatibility analysis, that there was not competent evidence demonstrating a diligent effort to conserve prime farmland, and that the board engaged in illegal “spot zoning.”

They also raised concerns with what they said were ex parte communications between the commissioners and MM during remand from a lower court.

However, the court only needed to find one reason, and in its unpublished decision, ruled on just one, finding that MM did not supply the county with evidence its use of the land was compatible with the existing surrounding uses by meeting the residential noise standards required.

In its ruling, the court said because it found MM failed on the first issue, it would not address the other arguments.

Weld County issued a short news release that said: “This morning, the Board of Commissioners learned the Colorado Court of Appeals reversed and remanded with directions, the case of (Motherlove Herbal) v. Weld County Board of Commissioners (17CA0463). The Weld County Attorney’s Office is taking the Court of Appeals opinion under advisement. They will review options and advise the Board next week. The county will not be making any further comment on this case at this time.”

The court’s ruling instructed Weld District Court to issue a judgment in favor of the appellants.

Because it is an unpublished ruling, Complete Colorado cannot link to the ruling. However, an electronic copy of the ruling can be obtained here using the following information: 17CA0463 Motherlove Herbal v. Bd of Cty Commissioners of Weld Cty, date of announcement Nov. 22, 2017.

Weld County and Martin Marietta have two choices, they can ask for the entire court of appeals to hear the case, rather than the three-judge panel. They can also ask for the Colorado Supreme Court to hear the case. Both instances are not by right and can be denied. Additionally, if the case were remanded back to the court of appeals, the other issues brought by the appellants could be considered.

Kisker, who had not heard about the ruling when first contacted by Compete Colorado, was nearly speechless at first. Later, after speaking to attorneys, he said the decision spoke to the commitment by the group of appellants willing to fight the battle as long as necessary.

“Neighbors from the beginning felt this was a completely incompatible use of the land,” Kisker said. “Particularly given there were other nearby choices that would not have had a negative impact.”

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