Legal action mulled after Wellington trustees reverse planners’ OK of asphalt plant

Editor’s note: This story has been corrected to indicate that the Wellington board of trustees, responding to an appeal, reversed its planning commission’s — not its own — decision approving a plan for relocation of an asphalt-mixing plant. Also, Lisa Clay does not live on the property that had been proposed for relocation of the plant. BizWest regrets the errors.

WELLINGTON – The operators of an asphalt-mixing plant in Timnath are considering legal action in the wake of this week’s decision by Wellington’s board of trustees to overturn its planning commission’s approval of a plan to move the facility to a 35-acre tract near a residential area on the town’s north side.

The trustees, on a 4-3 vote Wednesday, reversed the town planning commission’s 6-1 vote on June 5 to approve the plan by Windsor-based Connell Resources to move its hot-mix asphalt operations to Wellington after closing its plant southeast of the intersection of Interstate 25 and Harmony Road in Timnath. An affiliated company, Connell LLC, planned to redevelop that site as part of the proposed 240-acre Ladera residential and commercial project, the sketch plan for which was approved Tuesday night by the Timnath Town Council.

Four days after the Wellington planners originally approved the plant, attorney Jeffrey B. Cullers of Fort Collins-based Herms & Cullers LLC filed an appeal on behalf of town residents Ayla and Benjamin Leistikow, alleging six violations of the town’s land-use code.

“We are exploring all of our legal options to move our project forward,” wrote John Warren, president of Connell Resources, in an email to BizWest. ”As a local company with a 75-year presence in Northern Colorado, we were looking forward to relocating a portion of our operation to the town of Wellington and being a part of solving some of the many infrastructure needs the town has. Unfortunately, the Board of Trustees’ decision has put that on hold.”

Warren alleged that the board of trustees “applied a stricter interpretation of the code to Connell’s site-plan application versus past projects brought in front of the town. This strict interpretation, if applied consistently, could eliminate any heavy and potential light industrial uses in the future.”

Connell Resources’ attorney, Carolynne C. White of the Denver law firm Brownstein Hyatt Farber Schreck had echoed that same point in June before trustees originally approved the plan, contending that an asphalt plant’s emissions were no higher than those emitted by gasoline stations and fast-food restaurants, and that those businesses should be required to follow the same setbacks that opponents were demanding — which they’re not.

At Wednesday’s meeting, she repeated her assertion that the plant does not produce or curate toxic chemicals, noting that the federal Environmental Protection Agency has removed asphalt plants after studies showed emissions of such toxins as toluene and benzene were far below levels set by the EPA and the Colorado Department of Public Health and Environment.

Cullers didn’t dispute that but said there’s also no argument that what the plant would emit into the air is toxic. And Trustee Jon Gaiter noted that the town’s land-use code makes no distinction between levels of emissions.

“The Leistikows didn’t say the levels were too high,” Gaiter said, adding that the couple was simply contending that the toxins “are being produced, and studies show items known to be toxic chemicals are byproducts of the plant.”

The town originally had granted Connell Resources a variance to reduce the required 1,000-foot separation setback from neighborhoods — and 2,640 feet for operations that produce toxic chemicals – to 800 feet, in part to accommodate Lisa Clay, who owns the property on which Connell wanted to build and who supports the asphalt plant.

However, Cullers’ appeal said that violated land-use rules requiring setbacks to protect residents from toxic chemicals as well as for heavy industry and contractor storage. His appeal contended that the site plan contained errors and didn’t include elevation data.

The site, at 3548 E. Larimer County Road 66, between North County Roads 7 and 9, is in an area that has been zoned industrial for more than two decades but also is adjacent to the Buffalo Creek subdivision.

When trustees originally approved the asphalt plant in June, some residents who opposed it had threatened either to pursue legal action of their own or take the issue to the ballot, as Timnath residents had when they voted June 29 to block construction of a Topgolf golf and entertainment complex in the Ladera development or as Fort Collins voters did when their petition forced the city council to repeal the revamped land-use code it had passed. One resident, Erin Ramler, had warned commissioners and Connell Resources representatives not to “underestimate the resolve of the concerned citizens of this community. We have legal recourse and are prepared to see this legal battle through.”

At Wednesday’s meeting, Ayla Leistikow said the plant should be located in a rural area instead, although Connell has said the Wellington site – like the Timnath site it wants to leave  – is “near critical infrastructure such as an I-25 interchange that allows us to direct all our truck traffic away from residential areas, schools and the Wellington Town Center.” It also wanted to place the hot-mix asphalt production closest to where it might be used, including in the town of Wellington and the nearby city of Fort Collins.

“We might be living in a small town,” Leistikow said, “but we will never give up.”