Neighbors file appeal in Weld County commissioners’ Martin Marietta asphalt plant decision
May 28, 2017
The Johnstown Town Council will discuss whether to file an amicus brief in support of neighbors adjacent to a Weld County Commissioners-approved concrete and asphalt plant. Those neighbors have appealed a Weld District Court decision that held up the commissioners’ approval of the plant. The Town Council will meet at 7 p.m. June 5 at the Johnstown Town Hall, 450 South Parish Ave.
Neighbors and property owners surrounding a Board of Weld County commissioners-approved concrete and asphalt plant have appealed a Weld District Court decision that sided with commissioners.
Citing commissioner errors related to compatibility, the preservation of farmland, potential noise violations and zoning, as well as an objection to the district court's failure to reveal communications between commissioners and the plant, neighbors on Friday asked the Colorado Court of Appeals to reject the commissioners' decision.
"We believe our position is very strong," said Dave Kisker, one of eight plaintiffs in the case.
The lawsuit names the commissioners, as well as Martin Marietta Materials and other investors.
At issue is a proposed concrete and asphalt plant, including a railroad loop, near Weld County Road 13 and U.S. 34 that commissioners approved in August 2015.
Surrounding property owners filed a lawsuit in September 2015, and a Weld District Court judge ruled in favor of the commissioners in late January 2017.
Kisker is joined by four other individuals, as well as Motherlove Herbal Co., an organic farm specializing in food for pregnant and nursing mothers; Indianhead West Homeowner's Association, which represents an adjacent neighborhood of single-family homes; and Rockin S Ranch, a wedding venue.
The neighbors have boiled down their appeal to five main issues:
» Whether the commissioners erred in approving a use by special review application without competent evidence the proposed industrial use is consistent with existing surrounding uses. (Neighbors say there's no such evidence).
» Whether the commissioners erred in approving the USR application without competent evidence the applicants made diligent efforts to conserve prime farm land. (Neighbors say no such efforts were undertaken, despite alternate sites being available).
» Whether the commissioners erred in approving a USR application where the uncontroverted evidence demonstrated the proposed industrial use would violate the applicable noise standard. (Neighbors say it will, regardless of mitigating efforts).
» Whether the commissioners engaged in unlawful de facto spot zoning when they approved the USR application for a proposed industrial use that has no relationship to agriculture in the agricultural zone. (Neighbors say the commissioners did engage in spot zoning).
» Whether the district court erred in refusing to order the record to be supplemented with all ex parte communications between the commissioners and the applicants while the USR application was on remand before the commissioners. (Neighbors want the records related to these communications but have been refused, as Marietta and the county are engaged in mutual defense against the lawsuit, meaning it's privileged communication).
The neighbors take issue with the heavy industrial nature of the 131-acre, $20 million plant, which will reach more than 100 feet high and will include a 6,400-foot rail loop and on-site storage of tens of thousands of gallons of diesel fuel, 180 tons of coal fly ash and 40,000 pounds of chemical color additives.
They also take issue with what they say was commissioners' failure to follow county code in approving the project, saying in the appeal that commissioners cannot prove the proposed use is consistent with existing surrounding uses — mostly farmland and single-family homes.
The neighbors have some support, as Greeley, Windsor, Johnstown and Larimer County have sided in some capacity with neighbors against the proposed use.
Johnstown passed a resolution rejecting the plant, saying it did not conform to the town's future plans for the area. But Weld County commissioners went against those recommendations.
Now, Johnstown's Town Council soon will discuss whether to file an amicus brief in the appeal, according to court documents.
Johnstown Mayor Scott James said town council member Troy Mellon suggested a brief, and the council will discuss it during its June 5 meeting.
Although James said he was disappointed commissioners "pretty much blew off our resolution," he hasn't come around to supporting the town's involvement in the appeal.
"I believe the commissioners have spoken," James said. "So has the court. So I'm not overly warm to filing an amicus brief."
Mellon couldn't immediately be reached for comment.
Weld District Court Judge Todd Taylor said the initial case hinged on whether Weld commissioners provided proper evidence for their decision. On most points, the judge agreed they had.
Further, commissioners weren't required to prove the plant's relationship to agriculture, as asphalt plants and others like it are enshrined in county code as possible candidates for use by special review on land zoned for agriculture, provided there are mitigating factors.
Commissioners have cited more than 40, including requirements for noise reduction and landscaping.
"Vigorous opposition does not mean the board abused its discretion in rejecting that opposition," Taylor said in his ruling.
— Tyler Silvy covers city and county government for The Greeley Tribune. Reach him at firstname.lastname@example.org. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.