GREELEY — The Colorado Court of Appeals had just one word for officials from Martin Marietta Materials and Weld County: Denied.
That was the extent of the ruling that was released by the court Thursday concerning a multimillion dollar asphalt plant that has been tied up in litigation for nearly three years.
The court was considering whether to rehear an appeal they had ruled on just before Thanksgiving 2017. In that ruling, a three-judge panel ruled Weld County Commissioners violated Weld’s land use codes when they granted a use by special review to Martin Marietta to construct a massive asphalt plant.
The decision is one step closer to ending the neighbor’s fight against the concrete giant and its use of prime farmland just east of Interstate 25 and US 34.
The only option left for Martin Marietta or Weld is to appeal to the Colorado Supreme Court. The appeal must be on a constitutional issue. It is due by April 13.
Weld County Attorney Bruce Barker said he is not sure what the intent of the county or Martin Marietta is.
“At this point, I do not know if the Board of County Commissioners or Martin Marietta will wish to file a petition for certiorari to the Colorado Supreme Court,” Barker said.
Because Barker has been litigating on behalf of the county, the case has not cost Weld County any additional money for legal fees. However, it is not clear if the group that initially brought the suit will ask for legal expenses reimbursed or if Martin Marietta will sue the county for its expenses, which the company says is around $70 million.
The initial cost of the project was estimated at $20 million, and Martin Marietta has not pinpointed where the additional $50 million was spent.
The fight started in August 2015 when the Board of Weld County Commissioners approved the use by special review on 131-acres of land classified as prime farmland.
Neighbors and businesses in the area argued successfully to Weld’s planning department and the Weld County Planning Commission that it was not compatible with the surrounding area, saying it had 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.
Additionally, the towns of Windsor and Johnstown, the cities of Greeley and Loveland, and Larimer County all said the plant did not fit their long-term growth plans. But the commissioners permitted the use.
The residents initially appealed the case to a Weld District Court. On Jan. 27, 2017, Judge Todd Taylor upheld the commissioners’ decision. The group then appealed to the Colorado Court of Appeals to determine if the commissioners abused their discretion.
Attorneys for the plaintiffs identified four components they said were missing from the nine required to make the USR valid. The absence of just one required the court to overturn the decision.
The court did not look at three of the components after overturning the commissioners based on the first one they looked at dealing with noise levels.
Recently, Weld Commissioners approved another asphalt plant near Severance. Two separate lawsuits have been filed against Weld County in that case as well, citing many of the same reasons.
Dave Kisker, President of CLR-34 Neighborhoods Association, a non-profit formed to organize the appeal, said in a news release that his group was thrilled with the outcome.
“We are obviously pleased that the Colorado Court of Appeals has rejected the petition to rehear this case” Kisker said in the release. “It’s been an ongoing issue for (more than three) years, so we are thrilled that we are now a critical step closer to the resolution that we believe should have been the result on August 12, 2015.”
Mark Lacis, an attorney from Denver-based Ireland Stapleton Pryor & Pascoe, who represented the plaintiffs was also happy with the outcome.
“I am thankful for the careful and thoughtful rulings from the Court of Appeals and expect Weld County to abide by them by taking all necessary steps to require Martin Marietta to return the site to its previous use — as farmland.”
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