Special-use permit for gravel mine has lapsed

It’s been more than two decades since Boulder County approved a special-use permit, allowing a company to begin gravel mining on almost 900 acres in Hygiene, and hardly any work has occurred.

As a result, on Wednesday, county officials determined that the permit has lapsed.

Dale Case, director of Boulder County Community Planning & Permitting, has reversed the determination he made in 2018 when he said it had not lapsed despite no activity occurring on the property for some time, according to a Boulder County news release. Boulder County’s Land Use Code provides that such permits will lapse if there has been no activity under the permit for five or more years.

At the time, three of five Boulder County Board of Adjustment members sided with ecological activist coalition Save Our St. Vrain Valley in its original appeal, but a super-majority of four votes was required to reverse the land use director’s ruling.

The 2018 determination sparked a lawsuit from Save Our St. Vrain Valley which aimed to prevent land owner Martin Marietta Materials Inc. from resuming gravel mining on the property.

Case’s reversal also comes after the Colorado Court of Appeals in April 2021 ruled in favor of Save Our St. Vrain Valley, determining that the permit had lapsed since it was first approved by then the Boulder County Board of County Commissioners. This ruling also reversed an October 2020 Boulder District Court decision that held the permit had not lapsed.

After the Court of Appeals decision last April, Martin Marietta petitioned the Colorado Supreme Court to review the ruling.

In the petition, one of the arguments by attorneys representing the company was that the state’s high court should hear the case “to resolve lower court confusion” about the “standard of review” that applies to a lower governmental body’s “interpretation of its laws.”

James Silvestro, the attorney for the Save Our St. Vrain Valley wrote in that filing, “There is no need for further discretionary review by this (Supreme) Court, and the petition should be denied.”

Silvestro wrote, “The Court of Appeals concluded that Boulder County’s ‘use-it-or-loseit’ provision unambiguously requires a specialuse permit-holder to engage in its approved special use at least once every five years.

Here, it was undisputed that Martin Marietta’s special use permit for open pit gravel mining has not been used since at least 2006.”

Mining occurred on the site between 1998 and 2006, the news release said.

Since then, no work has occurred. Martin Marietta has previously argued that since it purchased the property in 2011 “it and its predecessors have undertaken many ground-moving, administrative and regulatory compliance activities over the years to comply with the 35 conditions imposed by the” specialuse permit, according to court documents.

Those activities included “reclamation of previously mined areas, obtaining all applicable permits, performing weed management and reseeding, submitting site and landscaping plans, and performing groundwater monitoring,” according to documents, but the Court of Appeals ruled those kinds of activities didn’t apply to the status of the company’s permit.

In order to begin mining, Martin Marietta must apply for a new special-use permit through the county.

Before voting on the permit request, the county must have a public hearing.

The public has until May 27 to appeal Case’s determination to the Boulder County Board of Adjustment.