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Save Our Saint Vrain Valley, Inc. v. Boulder County Board of Adjustment.

2021 COA 44. No. 19CA2251.  Special Use Permit—Boulder Land Use Code—Judicial Review.

April 1, 2021


Western Mobile Boulder, Inc. (Western Mobile) obtained approval from Boulder County (County) through an approval resolution to engage in open pit gravel mining as a special use. The mining was to commence on January 1, 2003 and take place in several phases over 30 years, plus an additional three years to complete all post-mining reclamation work. From 1998 to 2006, Western Mobile worked with its successor in interest Lafarge West, Inc. (Lafarge) to operate under the approval resolution at the mining site, and Lafarge eventually took over the site. Lafarge later requested and was granted a temporary cessation for the site. Its request stated that active mining had not occurred at the site since 2006. Lafarge then sold its interests in the site in 2010 to Martin Marietta Materials, Inc. (Marietta). After the purchase, Marietta maintained and paid for permits and annual reports; inspections and maintenance for air, water, and weeds; construction of buildings that would be needed for mining; and reclamation work. But it never performed any gravel mining.

In 2017 plaintiffs asked the County to determine whether the approved special use had lapsed due to inactivity for longer than five years pursuant to Boulder County Land Use Code article 4-604(C). The County’s land use director determined that the approved special use had not lapsed, and the Boulder County Board of Adjustment (BOA) affirmed the decision. Plaintiffs appealed to the district court, which affirmed the BOA’s decision.

On appeal, plaintiffs argued that the district court erred because any activity other than actual open pit gravel mining is unambiguously beyond the scope of what was contemplated by the Code. Article 4-604(C) of the Code provides that a special use permit lapses if it is inactive for five years. Here, even though accessory uses are allowed, the permitted special use was to mine gravel, and any permitted accessory use must comply with the same conditions for approval as the main use, which is open pit gravel mining. Because the County director did not form his determination under the correct definition of “special use permit,” his decision was an abuse of discretion. However, the Court of Appeals could not discern whether the County director would have reached a different conclusion under the correct construction of the law.

The judgment was reversed and the case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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