Court upholds Wellington’s rejection of asphalt plant

FORT COLLINS — The Larimer County District Court has upheld the Wellington Town Board of Trustees’ rejection of plans for relocating an asphalt hot-mixing plant to a site near a residential area on Wellington’s north side.

Windsor-based Connell Resources LLC had sued the Wellington trustees last September, asking the district court to force the panel to clear the way for it to close a plant it operates southeast of the interchange of Interstate 25 and Harmony Road in Timnath and relocate it to the 35-acre tract in Wellington so that an affiliated company, Connell LLC, could redevelop the Timnath site as part of its 240-acre Ladera residential and commercial project.

However, District Court Judge Stephen Jouard, in an order issued Tuesday, ruled that the trustees had not misread or misconstrued the town’s Land Use Code in voting to reverse the Planning Commission approval of Connell’s site plan.

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“The reversal is supported by competent evidence,” Jouard wrote. “Further, the court finds that code provisions at issue are neither unconstitutionally vague on their face nor are they vague as applied to Connell’s proposed hot-mix asphalt plant. The code overall and the plain text and meaning of the words and phrases … are sufficiently clear to meet-due process standards.”

The trustees, acting on an appeal filed by two Wellington residents living near the proposed site of the plant, voted 4-3 last Aug. 23 to reverse the town planning commission’s 6-1 vote on June 5, 2023 to approve Connell Resources’ plan.

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.

Connell Resources contended in its lawsuit that its plan met 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 asked 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.”

In an email to BizWest on Thursday, John Warren, president of Connell Resources, wrote that, “while we respect the court’s affirmation of the Wellington Board of Trustees’ strict interpretation of their Land Use Code, we disagree with the decision. In the end, this dispute is over the definition of a few words within the Land Use Code and not the impact of our operation on air quality, as our asphalt plant would have no greater impact than that of a gas station or fast-food restaurant. The board’s decision precludes our proposed use and effectively makes industrial property within the town undevelopable.”

Connell Resources had asked the court to rule on whether the trustees abused its discretion under Rule 106 review standards by overturning the Planning Commission’s approval with “no competent evidence” that the proposed hot-mix asphalt plant would produce, curate, and emit toxic chemicals. Under Rule 106, the public can challenge certain governmental decisions within a short time frame.

“Because we are not the fact finder,” Jouard wrote, “we cannot weigh the evidence or substitute our own judgment for that of the [administrative body].” However, he added, “the court finds and concludes that Connell has not carried its burden to demonstrate the Town Board erred in reversing the Planning Commission’s approval of the site plan and embedded variance conditionally granted by the Board of Adjustment. More specifically, the record contains competent evidence that the proposed hot-mix asphalt plant will produce and curate toxic chemicals that will be emitted or released within the town.”

Warren had 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. However, the trustees acknowledged at the appeal hearing that there’s also no argument that what the plant would emit into the air is toxic, with Trustee Jon Gaiter noting that the town’s land-use code makes no distinction between levels of emissions.

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 supported the asphalt plant. However, part of the appeal the trustees heard and supported said that variance violated land-use rules requiring setbacks to protect residents from toxic chemicals as well as for heavy industry and contractor storage.

In the court decision released Tuesday, Jouard affirmed that the town board “acted within its authority and possessed jurisdiction to review and make a final decision on appeal regarding the Planning Commission’s approval of Connell’s site plan” and that “the Planning Commission erred as a matter of law by not openly and fully considering the nature of the proposed use because it mistakenly believed the 800-foot variance grant was not reviewable, either directly or indirectly.”

Warren wrote in the email to BizWest that, “when we found this property, we intended to be a positive local business partner with Wellington, bringing jobs, road and water system improvements, and added tax revenue. Unfortunately, our goals didn’t align with the vision of the Town Board of Trustees.

“Right now, we are exploring our options of appealing this court decision and identifying other opportunities,” Warren wrote. “We appreciate the Wellington planning staff for working with us and thank the neighboring property owners who all supported us during the process.”

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.