Why Do We Make Policies If We Don’t Consistently Enforce Them?

Op-Ed by Sarah Lorang

A Rollercoaster Ride in Boulder County

If you haven’t been following along on all the twists and turns of CEMEX’s application for an additional 15 years of mining at Dowe Flats, near the Town of Lyons, you are missing out. As I’ve followed along, I’ve been taken aback by Boulder County’s disregard for the policies that should dictate how our beloved community is governed, especially because these are the people we pay to enforce them. 

I first sought to understand the on-going legal battle between Boulder County Land Use, Martin Marietta Materials, and Save Our St. Vrain Valley (SOSVV). My understanding of it is this: Martin Marietta obtained a Special Use Permit to gravel mine in the St. Vrain Valley in 1998, but neglected to do any mining for 16+ years. The area has changed a lot in that time; Hygiene and Lyons have grown, and outdoor recreation and tourism in the area have flourished.

What Are The Rules And Procedures For Special Use?

There are a lot of rules surrounding a Special Use permit; the applicant must inform the local community of their intent, and the community must be allowed to publicly speak about the impacts of the intended Special Use and its compatibility with the surrounding area’s existing use. To regulate this compatibility, BoCo adopted a “5 year lapse provision” to the Code in 1996. For example, if the applicant hasn’t commenced its Special Use within 5 years, the permit expires; they must then reapply for a NEW Special Use. This makes sense because the community, the impact, and the compatibility of the intense use have likely changed in 5 years.

When Martin Marietta was getting ready to engage in deep-pit gravel mining in 2017 using a Special Use permit from 1998, SOSVV said ‘Hey, Boulder County, this Special Use is in cessation status with the state. It’s certainly been more than 5 years since Martin Marietta has mined. This permit has lapsed, and they need to apply for a NEW Special Use permit - see here 4-604 in the Code, the Five year lapse provision!” Boulder County fought SOSVV and would not enforce their own code. After lengthy court battles that went up to the Colorado Supreme Court, Boulder County finally reversed their decision and said SOSVV was right. And now Martin Marietta is appealing the Director’s decision to the Board of Adjustment, at an October 5th hearing. This has been locked in the courts for 6 years. Why didn’t Boulder County just enforce it from the beginning? Why had Boulder County never applied the Lapse provision, or deemed that any special use had expired – ever?

Non-Conforming Use Never Reviewed, Despite Triggers

Back to CEMEX, their Special Use permit for Dowe Flats expires on September 30, 2022, the cement plant is a “legal nonconforming use” per the Land Use Code. Per Article 4-1001.A, the County has a duty to eliminate nonconformity “as speedily as justice will permit”. There are a number of policies in the Code to trigger a review and removal of these grandfathered structures and uses from the County. 

It’s hard to believe, that in the 28 years since this Code was adopted, that CEMEX has not done anything to trigger reviews of their nonconforming status. Specifically, Article 4-1003.C.1.d, which provides for termination based on "Any other enlargement or alteration of the nonconforming use which has the effect or threatened effect of creation a hazard or nuisance on or off the property, of adversely affecting the character of the neighborhood, or of intensifying the use of the land or its need for services."

BoCo’s Willful Non-Enforcement Over The Years

Have you seen what locals nicknamed “the brown worm”? It’s the conveyor that connects Dowe Flats to CEMEX’s plant across Highway 66, and was constructed after the Code was adopted in 1994. That feels like “an enlargement or alteration”, doesn’t it? I can name at least 16 other changes that likely needed to have triggered a review of the #1 polluter in Boulder County’s nonconforming status over the past 28 years. Do you know how many reviews have been done? None are in the public record.

Back to current events, if the application for additional mining is denied, CEMEX will have to change the source of its material and truck it in. This would trigger two different reviews of the plant’s nonconforming status. However, instead of recommending rejection of the application

and upholding its Code (which would have the effect of shutting down the plant imminently), Boulder County wants to let CEMEX hang around for an additional 15 years. What am I missing? Why do we have these policies if the County is incapable of, or refuses, to enforce them?

The Board of County Commissioners must uphold the expiration of special uses and reject CEMEX’s new mining special use at Dowe Flats.