The Nightmare Draws Closer to the End

by Dave Kisker, President, CLR-34 Neighborhoods Assn. Published in NoCo Today

It was on January 27, 2015 that we first heard about the plans that Martin Marietta Materials (MMM) had for the 131-acre parcel on Weld CR 13, just south of US 34.  The news of an extensive aggregate transloading, processing, and distribution facility had just hit our neighborhood, directly adjacent to the parcel under consideration.  For most of us, the idea that there would be an asphalt plant, a concrete plant, concrete and asphalt recycling, and, worst of all, a 1-mile long rail loop, capable of transloading 120 cars full of gravel from Wyoming was just too much to imagine, let alone believe.   Yet, there it was.  In several posters, MMM laid out the story that was to become our daily reality over the next 36 months.

Although there were no real details forthcoming (“oh, we don’t know that yet” was the common refrain to nearly all questions) it was clear that this was going to have an enormous, negative impact on the surrounding homes, farms, and businesses, if Weld County allowed it to occur.

Over the next few months, as we waited for the MMM application for a Use by Special Review (USR) permit to be filed, we studied the criteria and the procedures for submission of a USR application.  We attended Planning Commission hearings and Board of County Commissioner hearings.  We also learned about asphalt and concrete production—the risks, the impacts of noise, odor, dust, traffic, etc.  Some of us quite literally became experts to the point that we sometimes knew more about what to expect than the MMM staff did.

When the process finally got underway, we were optimistic that good sense would reign supreme and that Weld County would quickly reject the MMM USR application.  Our confidence was buoyed when the Planning Department and then the Planning Commission recommended denial of this proposal on the grounds of incompatibility—the same arguments against it that were made by Windsor, Johnstown, Greeley and Larimer County.

So, we were understandably stunned when on August 12, 2015, the Weld County Board of Commissioners voted unanimously, 5-0, to approve the application and let the project go forward.  This was in direct conflict with the numerous arguments that we had presented that showed the project was clearly unsuitable for this site:  it was incompatible with present and future surrounding uses; it didn’t have any connection to agriculture; MMM had made no effort to preserve what had been valuable PRIME farmland.  All of these criteria were requirements found in the Weld County Code, and we felt that none of them had been met.

One aspect of the incompatibility was particularly troubling—the noise that was projected to emanate from the site was going to be extreme.  MMM was seeking allowance to routinely undertake the 24-hour operation, 7 days a week.  The mile-long trains would arrive in the middle of the night because the daytime unloading required 10 hours, and then the train would have to leave to make way for the next one.  Their own noise study indicated that they would be unable to meet the residential noise limit at their property line, which, since they were surrounded by homes, seemed reasonable.  In the one significant concession that the Weld BOCC allowed, they agreed and imposed this requirement on MMM as a “development standard”—a requirement for operation.

Because of the likelihood that MMM would never be able to meet this requirement as well as the clear evidence that the Weld County Code criteria for approval had not been met, our neighborhood of homeowners, farmers and businesses decided to appeal the BOCC decision, as was our right.

In Colorado, the appeal process for land use decisions starts at the District Court.  Over the next 14 months, with several sets of submitted briefs, we made our case to Judge Todd Taylor of the District Court.  However, on January 27, 2017, Judge Taylor ruled against us, refusing to reverse the BOCC decision to approve the MMM permit.  In the meantime, MMM had proceeded with construction of their project at their own risk, ignoring the possibility that a group of citizens might be able to prevail against a Fortune 500 company.

Despite Judge Taylor’s ruling, we felt that our case was so strong that it was worth proceeding with an appeal to the Colorado Court of Appeals (COA).  While we narrowed our arguments, using only the strongest ones, we didn’t compromise our principles—the process was not followed fairly and the decision should be reversed.

On November 22, 2017, a three-judge COA panel unanimously agreed with us and issued an order to the District Court to reverse the BOCC decision and deny the USR application from MMM.  The decision was based on the argument that MMM would not be able to meet the noise requirement, as their own study confirmed.  This ruling was temporarily delayed, pending MMM and Weld County exercising their right to petition the COA to re-hear the case, or to petition the Colorado Supreme Court to hear the case.  On 12/3/17, both the County and MMM submitted a petition asking the COA to re-hear the case.

Following some procedural requirements, the same three-judge panel of the COA issued a one-word order on 3/15/2018 in which they simply said “DENIED” to the petitions to re-hear the case.  Thus, the citizens surrounding this project are now a major step closer to the end of the nightmare to which they have been subjected over the last 3 years.  While MMM and Weld County have the right to petition the Supreme Court to consider the case, it’s unlikely that this will occur because there do not seem to be any Constitutional issues at stake.  If these petitions are not filed by April 13, 2018, or if the Supreme Court denies the petitions, it will finally end.  The USR permit will be invalidated and MMM will be occupying the site illegally, at which point Weld County will be obligated to force the land to be returned to the state in which it was found on August 11, 2015.  Although this will be costly, MMM accepted all risk when they convinced the County to issue the permits for construction despite our appeal.

Things are changing in Weld County.  It’s no longer appropriate for land use decisions to be made without full consideration of the external impacts of these types of heavy industrial operations.  In addition, while the deck often seems stacked against the ordinary citizens, when sufficiently organized and committed, our experience shows it’s possible to prevail, even in the ultimate “David vs. Goliath” situation.

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One thought on “The Nightmare Draws Closer to the End

  1. Dear Dale,

    I want to ensure that you saw these recent articles pertaining to the CLR-34 Neighborhoods Assn. and Martin Marietta Material’s reporting that CO Court of Appeals denied MMM’s appeal. I emailed you and Commissioners the article on the original decision by the CO Court of Appeals ruling in favor of this Weld County non-profit, citizen’s group.

    This article is particularly poignant because it is written by Dave Kisker, the Chairperson for the HWY 34 Group and conveys what communities are forced to endure under these SU Permits and what they will accomplish.

    The citizens won because “This [project] was in direct conflict with the numerous arguments…presented that showed the project was clearly unsuitable for this site: it was incompatible with present and future surrounding uses; it didn’t have any connection to agriculture”; As I understand it, all these criteria are requirements found in the Boulder County Code as well, and SOSVV has presented the County compelling arguments and supporting evidence against MMM’s SU 96-18 mining in the Lyons Pits.

    Among these compelling arguments is that MMM’s project in the St Vrain is outdated, unsuitable for the site, incompatible with present and future surrounding uses, population increase, wildlife, public health and safety. It would be a defecto rezoning of agricultural land, rare riparian habitat, and wetlands for an industrial wasteland. We have provided Land Use with chronological and consistent Annual Reports from DRMS from 1997-2016 at the State level evidencing that there has been no mining under this permit for two decades by the Operators’ own admissions to the State. We have quoted Eric Lane, BCPOS Director, in his letter to US Fish & Wildlife from June 2017 ascertaining that any work under this permit has yet to begin.

    “Things are changing in Weld County. It’s no longer appropriate for land use decisions to be made without full consideration of the external impacts of these types of heavy industrial operations. In addition, while the deck often seems stacked against the ordinary citizens, when sufficiently organized and committed, our experience shows it’s possible to prevail, even in the ultimate “David vs. Goliath” situation”. Dave Kisker

    I refuse to believe that things are changing for the worst in Boulder County and Land Use decisions may be made without full consideration of external impacts. This permit was approved in the 20th century, clearly there’s been changes in conditions and information. The project area was devastated and completely altered by a historic natural disaster in 2013 Flood and is situated in a Geological Hazard Zone where all intensive uses are discouraged.

    Please render your decision upholding the five year of inactivity lapse provision.

    Please file in Docket SU 96-18.

    Sincerely,

    Amanda Dumenigo
    Chairperson, SOSVV

    Like

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