Larimer County will appeal a judge’s decision to overturn a permit for a gravel pit amidst a large neighborhood in Johnstown — a decision that two county commissioners said they fear could have far-reaching consequences for local governments.
Judge Juan Villaseñor recently sent a decision on a special review permit for the Stroh gravel mine back to the commissioners based on the fact that the owners of the business, the Coulson family, had made $10,000 in campaign contributions to Commissioner Tom Donnelly, one of two commissioners to vote in favor of the permit.
The judge stressed that he was not ruling that Donnelly was biased but that the contributions could have led to bias and prevented the neighbors from a fair hearing on the issue.
Commissioner Steve Johnson called any hint of bias on Donnelly’s part “ludicrous” and “insulting,” saying Donnelly is a man of character and integrity who based all of his decisions over his past 10 years in office on what was best for the county.
But, for Johnson, the decision to appeal was more about the judge’s flawed decision and how it will affect citizens’ rights to support the candidates they choose and the ability of elected boards to make sound decisions now and in the future.
“This decision to appeal the ruling of our local district court judge has absolutely nothing to do with the land use case before us,” Johnson said. “In fact, I voted against that. This has to do with whether or not campaign contributions, in effect, create a conflict of interest. I believe the decision is flawed legally. I believe Colorado law is very clear.”
“That would have a very chilling effect on anyone who wants to make political contributions and the American right to support candidates they choose.” — Steve Johnson
That law, Johnson said, specifies that for there to be a conflict, the elected official must have “a direct financial interest” in the business on which he or she is making a decision.
Both Donnelly and county attorneys made that same argument when neighbors first brought up the contributions, and then when they appealed the permit decision to 8th Judicial District Court, naming the commissioners and Coulson Excavating in the appeals lawsuit. Donnelly will not directly profit from the mine, the county repeatedly stressed.
The Loveland company asked for a permit for a gravel mine on its property, which is in Johnstown south of U.S. 34 and east of Interstate 25. Neighborhoods of more than a thousand homes developed around the property while the request, in an early form, was pending, and homeowners of Thompson River Ranch and Thompson Crossing vehemently oppose the mine for its potential effect of their quality of life, property values and health, as well as for environmental reasons.
After several hearings and hours of testimony, the Board of Commissioners approved the permit 2-1 in February of 2018 with Johnson voting against it, and Donnelly and then-commissioner Lew Gaiter in favor.
An appeal based on the process and decision failed, but the judge did agree with the neighbors who alleged a conflict of interest based on the campaign contributions.
An attorney for Coulson previously said the company would appeal to the Colorado Court of Appeals, and the county commissioners voted Tuesday, after a 30-minute executive session, also to appeal the decision. Bill Ressue, deputy county attorney, advised the commissioners to appeal based on the judge’s decisions of law, adding, “We think some of those decisions are in error and need to be appealed.”
Both Johnson and Donnelly, who voted to appeal, said they worry about the precedent that would be set by Villaseñor’s decision and about how it would affect local government and noted that it ignores previous, sound court decisions.
“That would have a very chilling effect on anyone who wants to make political contributions and the American right to support candidates they choose,” Johnson said, later adding, “It creates an untenable and impossible situation for individuals to support candidates — a basic American right.”
Donnelly stressed again that the contributions had nothing to do with his decision, that he has a history of putting the community first and voting for what is right for the people over political ambitions. He agreed with Johnson’s assessment on the ripple effects of this decision.
“There are wide-reaching implications to this decision beyond just me,” Donnelly said. “Maybe you hate me, maybe you hate the Stroh quarry, there are wide- reaching implications beyond that.”
The vote to appeal was 2-0. The third commissioner, John Kefalas, abstained from voting because he was not on the board when the decision was made to approve the permit.