Wellington wins lawsuit vs. Connell, which wanted to bring asphalt plant to town

A Larimer County judge ruled the Wellington Town Board was justified in denying plans for an asphalt mixing plant on the edge of town.

Connell Resources Inc. filed the lawsuit in Larimer County District Court last fall, saying the town board erred when it overturned the previous decisions of the town's planning commission and board of adjustment.

The plant's proposed location is in an industrial zone south of Larimer County Road 66 between county roads 7 and 9, adjacent to Wellington's undeveloped Sundance subdivision. It would replace Connell's existing plant near Interstate 25 and Harmony Road.

The Wellington planning commission had OK'd the site plan, which included a variance allowing an 800-foot buffer from the residential development, previously approved by the board of adjustment. But the town board, in overturning that decision, said a 2,640-foot setback was required because Connell's use was for heavy manufacturing that produces toxic chemicals.

Connell has argued no toxic chemicals would be produced on site and said the larger setback would make it impossible for an asphalt plant to be located on that site due to its size.

In the lawsuit, the company said:

• The town board didn't have the authority to overturn the decision granting the original variance because it was a final decision that was not subject to further modification.
• The town board shouldn't have overturned the site plan because the planning commission did not commit a clear error and had supporting evidence for its conclusion. The company argued the town board had no credible evidence that the plant would produce toxic chemicals.
• The town code is unconstitutionally vague because it didn't define "toxic chemicals" or what "producing" or "curating" them means.

But Judge Stephen Jouard's ruling said the town board did not exceed its jurisdiction. He said it was the planning commission that made an error when it didn't fully consider the nature of the proposed use.

He said Connell did not meet its burden to show the town board erred in overturning the planning commission, and his ruling said the record contained "competent evidence" that the plant would produce toxic chemicals that would be emitted.

Jouard also wrote that the provisions of the land use code are not vague, and the town board did not misread or misconstrue the land use code when it reversed the planning commission's decision.

Steel Tailings was also a plaintiff in the lawsuit because it owns the land and had a contract to sell it to Connell.

John Warren, president of Connell Resources, said in a statement the company is exploring the possibility of appealing the decision and identifying other opportunities.

"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," Warren said in the statement. "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."

Wellington Mayor Calar Chaussee issued a statement, saying: “We are happy the court ruled that the Town of Wellington’s Board of Trustees acted within its authority and jurisdiction when deciding on the appeal of the approval of Connell’s site plan. We now look forward to moving on to other Town business.”