The neighbors filed an appeal of the District Court’s decision with the Colorado Court of Appeals. This is also an appeal by right.
The appeal was based on five issues: (1) incompatibility with surrounding uses; (2) this was a de facto “spot rezoning” to heavy industrial, because it was done for the benefit of one landowner; (3) there was no evidence that any effort had been made to preserve PRIME farmland; (4) MMM’s own evidence demonstrated that they would not be able to meet the noise limits that were imposed; and (5) there was improper ex parte communication between MMM and Weld County during the process that precluded the plaintiffs from receiving fair consideration.
The Colorado Court of Appeals ruled that the approval of MMM’s USR by Weld County was arbitrary and capricious based on issue (4) above (lack of evidence that MMM could meet the noise limits). Because the Court of Appeals considered this issue “dispository,” they specifically declined to consider the four other issues.
MMM petitioned the CO Court of Appeals to rehear the case. Their petition was denied.
The Colorado Court of Appeals issued a mandate to the Weld County District Court to “reverse” its previous decision to uphold the BOCC approval of MMM’s USR. This was followed by a District Court Order to the BOCC to deny the USR application.
The neighbors then filed a Motion asking the District Court to also require MMM to vacate the site, since they no longer had a valid permit. MMM filed a Motion asking the District Court to reverse the order to deny the application and to instead remand it back to the BOCC for consideration of how to respond to the Court of Appeals mandate. Judge Todd Taylor denied the neighbors’ motion and allowed the MMM motion.
Read about the neighbors’ second appeal to the CO Court of Appeals