Asphalt-plant owner sues Wellington over site-plan denial

WELLINGTON — The operators of an asphalt-mixing plant in the Timnath area have sued the town of Wellington’s Board of Trustees, asking the Larimer County District Court to force the trustees to clear the way for the plant to be relocated to a 35-acre tract near a residential area on Wellington’s north side.

The trustees, acting on an appeal filed by two Wellington residents living near the proposed site of the plant, voted 4-3 on Aug. 23 to reverse 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 interchange of Interstate 25 and Harmony Road in Timnath. An affiliated company, Connell LLC, plans to redevelop that site as part of the proposed 240-acre Ladera residential and commercial project, the sketch plan for which was approved Aug. 22 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.

In the lawsuit filed Wednesday, Connell Resources contends that its plan meets the town code’s requirements and that the trustees’ decision upholding the appeal and overturning the planning commission’s approval of the site plan was “based on the mistaken premise that the plant would ‘produce and curate toxic chemicals.’ It asks the district court to vacate the trustees’ denial of the site plan and “remand [it] back to the board with instructions that the board must deny the appeal and uphold the Planning Commission’s decision.”

Reached Friday, Cullers told BizWest that “the Leistikows believe that the town properly denied the asphalt plant because it does emit air pollutants sufficient to trigger air-quality permitting.”

John Warren, president of Connell Resources, told BizWest in an email that “this legal action has been taken after careful consideration and in pursuit of protecting our rights. We look forward to presenting our case and having the District Court make the final determination.”

Warren and Connell Resources’ attorney, Carolynne C. White of the Denver law firm Brownstein Hyatt Farber Schreck, contended before both the planning board and the trustees that the plant does not produce or curate toxic chemicals, noting that the federal Environmental Protection Agency has removed asphalt plants from those types of warnings 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 during the trustees’ appeal hearing but said that 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 at that hearing, 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 the owner of 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 near the Buffalo Creek subdivision.

According to the Connell Resources lawsuit, the trustees, in supporting the appeal and denying the site plan, had “stated belief that because the emissions by the proposed asphalt mixing plant could become toxic to humans at a certain concentration, then the emissions were necessarily toxic and thus the plant would be ‘producing and curating toxic chemicals.’ … The Leistikows, though, did not point to any evidence before the board demonstrating that the proposed asphalt mixing plant would emit into the air anything that would have more than a de minimis impact on human health. The only ‘evidence’ before the board that supported the Leistikows’ claims were outdated and inapplicable studies, information on asphalt plants submitted by members of the public to the Planning Commission, and a page from the

report that indicates the plant’s emissions would include certain chemicals at low levels not

harmful to human health.”

At the trustees’ appeal hearing, 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.

The case is Connell Resources Inc. v. Board of Trustees of Wellington, Colorado, case number 2023cv30781 filed Sept. 20, 2023, in Larimer County District Court.

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