Section 106 Appeal -- Martin Marietta Materials USR (USR15-0027)
 

After the Weld County Board of County Commissioners approved the Martin Marietta Materials aggregate facility adjacent to the Indianhead Estates neighborhood and Motherlove Organic Farm, a representative group of nearby residents and businesses filed an appeal under what is known as Section 106. Generally, there are three steps to the appeal process:

 
1.  Plaintiffs Opening Brief is filed.
2.  Defendants (in this case, both Weld County and Martin Marietta Materials) file their Answer Briefs
3.  Plaintiffs file their Reply Brief

 

Please follow the links below to review the briefs in this appeal:

Plaintiffs' Opening Brief
Defendant Weld County Answer Brief
Defendants Martin Marietta Materials and Gerrard Construction Answer Brief
Plaintiffs' Reply Brief
Exhibit A (Original Gerrard Construction USR) 
 
On August 9, 2016, the judge issued an Order of Remand in which he ordered the Weld County Board of County Commissioners to make additional findings of fact within 63 days to support its approval of Martin Marietta Materials' USR application.
 
Weld County submitted an amended resolution on October 3, 2016. The plaintiffs requested an opportunity to submit supplemental brief. Weld County and Martin Marietta Materials filed responses to the plaintiffs' brief, and the plaintiffs submitted a final reply. Please follow the links below to read these briefs:
 
Weld County Amended Resolution
Plaintiffs' Supplemental Brief
Weld County's Response Brief
Martin Marietta Materials' Response Brief
Plaintiffs' Final Respons Brief
 
On January 27, 2017, the judge issued an Order ruling against the plaintiffs and for Weld County and Martin Marietta.
 

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 15th, 2018, the Colorado Court of Appeals DENIED the Petitions for Rehearing. 

Weld County and Martin Marietta decided not to file an appeal with the Colorado Supreme Court. On April 13, 2018, the deadline for filing an appeal passed. 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.

 

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