Martin Marietta Materials Aggregate Processing Facility (USR15-0027)


STATUS: Approval reversed by the Colorado Court of Appeals. Martin Marietta must return the land to the state it was in prior to their land use application. Martin Marietta filed a motion changing the wording of the judge's order to invalidate rather than deny approval, and the judge agreed. The Plaintiff's are appealing this decision, and the Colorado Court of Appeals did not deny the appeal. 

Martin Marietta Materials (MMM) submitted and Weld County approved an application for a Use by Special Review (USR) permit to build a major aggregate processing facility on WCR13 just south of US34. On November 22, 2017, the Colorado Court of Appeals reversed the decision.

This facility would include:

  1. A continuous operation asphalt drum plant that will produce as much as 475,000 tons per year
  2. A concrete batch plant that will produce as much as 800,000 tons per year
  3. A concrete crusher for concrete recycling
  4. Asphalt recycling
  5. Up to 2 million tons per year of aggregate product and 1 million tons per year of additional aggregate distribution from the site
  6. A rail spur for delivery of aggregate to the site by 150 trains per year

The USR application and other associated documents can be found here on the Weld County Planning Department website, and the hearing resolution can be found at the Weld County Commissioners website (click here).


CLR-34 CONCERNS

CLR-34 has numerous serious concerns about this facility:

Incompatibility with surrounding land uses (read CLR-34's analysis)

Traffic congestion and safety hazards (read CLR-34's traffic study assessment)

Health and safety hazards (read CLR-34's assessment of the health impacts of particulates)

Adverse impacts on farming and water quality  (read CLR-34's analysis of the impacts on farming and water quality)

Noise

Odor

Visual impact

Substantial reductions in nearby residential property values (read CLR-34's analysis of the impacts on property values)

In approving USR15-0027, Weld County Commissioners ignored the recommendations of the Weld County Planning Department, the vote for denial by the Weld County Planning Commission, and the referrals of all nearby municipalities. They also failed to apply the criteria required by law for making such decisions. Eight neighbors filed an appeal (read the press release and the complaint). You can read the briefs here. In August 2016, the judge issued an Order of Remand requiring the Commissioners to provide findings of fact in support of their decision. On January 27, 2017, the judge issued an Order ruling against the plantiffs

The plaintiffs filed a Notice of Appeal with the Colorado Court of Appeals on March 15, 2017, and filed the Court of Appeals Opening Brief on May 26, 2017. At the same time, the Town of Johnstown filed a request for later filing of an Amicus Brief supporting the plaintiffs. Johnstown ultimately decided against filing the Amicus Brief due to legal costs. Weld County filed their response brief on June 29, 2017. Martin Marietta filed an answer brief on June 30, 2017. The plaintiffs filed a final reply brief on July 20, 2017. Oral argument was scheduled for November 7, 2017 at 1:30 PM in the Court of Appeals Courtroom (2 E. 14th Avenue, 3rd Floor, Denver).

The Colorado Court of Appeals issued an opinion on November 22, 2017 reversing approval of the USR to allow Martin Marietta to operate the aggregate processing facility. Weld County filed a Petition for Rehearing on December 6, 2017. Martin Marietta also filed a Petition for RehearingThe plaintiffs submitted a response brief on January 23, 2018.

On March 15, 2018, the Colorado Court of Appeals DENIED the Petitions for Rehearing. Weld County and Martin Marietta decided not to appeal to the Colorado Supreme Court. The Colorado Court of Appeals issued a mandate to the District Court to reverse its judgment, and the District Court issued an order vacating its previous judgment and ordering the Weld County Board of County Commissioners to reverse its approval of the USR by denying the permit.

While the case was proceeding, Martin Marietta proceeded to build the concrete plant, rail loop, and other portions of the facility. As documented in their acceptance of risk letter to the County, Martin Marietta acknowledged that it would have to cease activities and remove improvements that have been installed if litigation resulted in invalidation of the approval of their USR. CLR-34 will be monitoring the process.

In early May 2018, concerned that Martin Marietta and the County did not intend to remove the installed improvements, the Plaintiffs filed motion requesting an amended final judgment that clarifies the actions that Martin Marietta and the County must take in response to the final judgment. Martin Marietta also filed a motion requesting a change in wording of the judgment so that the order simply invalidates the approval of the USR and makes it possible for the County Commissioners to continue considering Martin Marietta's original USR application. The County Commissioners filed a similar motion requesting a change in wording of the judgment. Martin Marietta filed a  response to the Plaintiffs' motion, and the Plaintiffs filed a response to Martin Marietta's and the County Commissioners' motionsThe Plaintiffs' reply to Martin Marietta's response can be found here.

In early June 2018, the district court judge denied the plaintiffs's motion and approved Martin Marietta's motionThe Plaintiffs have filed a notice of appeal. This motion was NOT granted by the Court of Appeals, and instead the decision about the Appeal of the District Court order was instead DEFERRED.

 

ACTION NEEDED

Please support CLR-34's efforts to defend the successful appeal by helping to defray legal costs.


Contact Us

Email: clr34na@gmail.com

Mail: CLR-34

c/o Dave Kisker, President

6681 Apache Road

Johnstown, CO  80534

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