Connell Resources sues Wellington Town Board over asphalt plant denial - Coloradoan
Thomas Clayton
Connell Resources sues Wellington Town Board over asphalt plant denial
Pat Ferrier
Windsor-based Connell Resources, Inc., filed a civil lawsuit against the Wellington Board of Trustees Wednesday for overturning the town planning commission's approval of its proposed asphalt mixing plant site plan on Aug. 24.
The complaint, filed in Larimer County District Court, alleges Wellington trustees made an "erroneous decision" when they overturned the approval "based on the mistaken premise the plant would produce and curate toxic chemicals." Connell asks the court to vacate the board of trustees' decision and send the case back to the board with instructions to deny the appeal and uphold the planning commission's affirming decision.
Connell alleges the board of trustees exceeded its jurisdiction and acted "arbitrarily and capriciously" by:
- Considering whether a 2,640-foot setback for "a heavy use producing and curating toxic chemicals" applied to the proposed use of an asphalt mixing plant, even though a variance had already been granted from the 1,000-foot setback for uses that did not; and
- Determining the planning commission committed a clear error by approving Connell Resources' site plan application without a 2,640-foot setback.
"Even if the board had not exceeded its jurisdiction or abused it discretion, the code provision at issue is unconstitutionally void for vagueness," the complaint reads. "No matter how adjudicated, the board's decision must be vacated."
Wellington's planning commission approved Connell's site plan in June, but residents Ayla and Ben Leistikow appealed the decision to the town board, which heard the case Aug. 24.
Trustees debated for more than three hours the nuances of whether the code meant to impose the setback for uses that "produce or curate" any toxic chemicals, or for those that produce and curate toxic chemicals at significant levels.
Connell representatives told trustees and reiterated in the lawsuit that asphalt is made by mixing sand and gravel with asphalt cement. The materials are produced offsite and trucked to the site for mixing. "As a result, Connell Resources' proposed asphalt mixing plant will not produce toxic chemicals, as only asphalt is manufactured."
In a 4-3 vote, trustees ruled the planning commission erred when it approved an 800-foot setback from the plant to the adjacent residential development rather than its more stringent 2,640-foot setback required for heavy manufacturing and industrial companies that produce toxic chemicals.
Connell attorney Carolynne White argued the plant does not produce or curate toxic chemicals. "There is a mountain of evidence" that points to the fact that there are no toxic chemicals to be concerned about, she told trustees. "Any emissions from the plant are well below levels that might potentially pose a threat to human health."
The decision upended Connell's plans to move its Timnath plant to an industrial zone south of Larimer County Road 66 between county roads 7 and 9, adjacent to Wellington's undeveloped Sundance subdivision.
Connell is under contract to buy the land zoned heavy industrial on East County Road 66. The complaint said the company set aside earnest money and paid a nonrefundable first extension to the purchase contract. If the trustees' decision is allowed to stand, Connell said the 2,640-foot setback "would effectively render the property unusable as industrial as the dimensions of the property are approximately 1,250 feet by 1,250 feet. As a result, a 2,640-foot setback would prevent use of the property as an asphalt mixing plant."
Company president John Warren said in a statement the legal action was filed "after careful consideration and in pursuit of protecting our rights."
The lawsuit alleges the town's land use code is vague and that the Board of Adjustment has the final authority over variances. According to the town's land use code, appeals of Board of Adjustment decisions shall be made to District Court. No appeal was filed in court.
 | Tom Clayton Communication and Media Specialist, Public Affairs |
| Commissioners' Office 200 W Oak St, Fort Collins, 80522 | 2nd Floor W: (970) 498-7005 tcla...@larimer.org | www.larimer.org |