Weld County commissioners will ask for re-hearing after Colorado Appeals Court loss in Martin Marietta case | MyWindsorNow.com

Weld County commissioners will ask for re-hearing after Colorado Appeals Court loss in Martin Marietta case

Tyler Silvy
tsilvy@greeleytribune.com

The Board of Weld County Commissioners will appeal the Colorado Court of Appeals decision that ruled against them in a land-use case involving a concrete and asphalt plant near a residential neighborhood in Johnstown.

Commissioners during a Monday morning work session instructed Weld County attorneys to file for a re-hearing in the Martin Marietta Materials case by Wednesday. Commissioner Sean Conway was noncommittal. Conway and his fellow commissioners voted unanimously to approve the plant in August 2015, and construction is almost complete.

At issue, for the commissioners who supported the appeal, is what the Court of Appeals' decision will mean to future land-use cases that come before county commissioners.

Most thought it would fundamentally alter the land-use process by impacting the way commissioners deal with development standards to help projects fit in with surrounding land uses. In this case, the appeals court said Martin Marietta was never able to prove it could meet the noise standard commissioners put in place. Typically, commissioners have simply required a promise from the company it will meet the standards.

The court didn't take up any objections from surrounding property owners south of U.S. 34 in what is technically Johnstown, as the one issue proved enough to overturn the commissioners' August 2015 decision to allow the plant.

That's one concern Conway brought up, saying the county, by appealing, might risk the other issues coming up and just getting the case overturned in a different way.

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The case has been in one court or another since a month after that decision, and the residents' appeal was granted Nov. 22.

Today, the $20 million plant is nearly complete, as Martin Marietta went forward with construction at the company's own risk despite the ongoing legal dispute.

Weld County had two options, attorney Bruce Barker explained Monday: file for a re-hearing by the entire Colorado Court of Appeals or appeal the case to the Colorado Supreme Court.

The benefit of filing for the re-hearing, Barker said, is it will allow the county to organize its arguments for the higher court should the court of appeals reject a re-hearing.

The commissioners went with Barker's recommendation, but the decision didn't come easily.

Commissioners Steve Moreno and Mike Freeman said they were supportive of the appeal. Then Commissioner Chairwoman Julie Cozad asked Conway to weigh in.

Conway tried to pass to Commissioner Barbara Kirkmeyer, who instead urged Conway to give his thoughts. Neither, it seemed, wanted to cast the tie-breaking vote, as it were. Commissioners aren't actually allowed to vote during work sessions, instead giving direction via consensus. It's a gray area.

So Kirkmeyer and Conway stared at each other for 10 seconds, drawing a remark from Cozad about the "standoff."

Cozad came to the rescue, also supporting the appeal before board members turned to Conway again.

"I'm thinking," Conway said. "It sounds like it's already been decided."

—Tyler Silvy covers government and politics for The Greeley Tribune. Reach him at tsilvy@greeleytribune.com. Connect with him at Facebook.com/TylerSilvy or @TylerSilvy on Twitter.

Up next

The Board of Weld County Commissioners have until Wednesday to file for a re-hearing before the Colorado Court of Appeals after a three-judge panel from that court overturned commissioners’ ruling to allow an asphalt and concrete plant in Johnstown. Commissioners have until Jan. 3 to attempt to take the case to the Colorado Supreme Court. Typically, the appeals court moves quickly to accept, dismiss or partially dismiss re-hearing requests so parties know whether to try for the supreme court.

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Topic of discussion

Weld County Commissioner Barbara Kirkmeyer on Monday requested a work session to discuss creating a charter review committee to review the Weld County Charter.

Kirkmeyer’s suggestion comes on the heels of commissioners’ attempt to drastically alter the charter by putting the fate of the Weld County Council on the Nov. 7 ballot. Voters soundly rejected the measure, sparing the elected board and its watchdog role in the county. But Kirkmeyer said she thinks it’s a gray area, pointing to the two charter-related questions on the ballot. One asked whether to keep the county council, the other moved some of the council’s authority to the state.

Commissioner Sean Conway smiled during Kirkmeyer’s discussion, then said he would be fine with a charter review committee as long as it was inclusive.

“I think we’re actually agreeing with you,” Commissioner Chairwoman Julie Cozad said after several minutes of discussion.