Martin Marietta v. Boulder County

23CA2068 Martin Marietta v Boulder County 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2068
Boulder County District Court No. 22CV30754
Honorable J. Keith Collins, Judge

Martin Marietta Materials, Inc., a North Carolina corporation,

Plaintiff-Appellant,

v.

Boulder County Board of Adjustment, the duly authorized administrative body
of a political subdivision of the State of Colorado,

Defendant-Appellee,

and

Save Our Saint Vrain Valley, Inc., a Colorado non-profit corporation, Barbara
Cargill, Richard Cargill, and Matt Condon,

Intervenors-Appellees.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE KUHN
Harris and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Bill E. Kyriagis, Andrew L.W.
Peters, Denver, Colorado, for Plaintiff-Appellant

Ben Pearlman, County Attorney, David Hughes, Deputy County Attorney, Erica
Rogers, Assistant County Attorney, Boulder, Colorado, for Defendant-Appellee
Ireland Stapleton Pryor & Pascoe, PC, James R. Silvestro, Denver, Colorado, for
Intervenors-Appellees
¶1 Plaintiff, Martin Marietta Materials, Inc., appeals the district

court’s judgment upholding the determinations by defendant, the

Boulder County Board of Adjustment (Board), and the Boulder

County Land Use Director (Director) that Martin Marietta’s special

use permit had lapsed. We affirm in part and reverse in part, and

we remand for further proceedings consistent with this opinion.

I. Background

¶2 Roughly fifty years ago, Western Mobile Boulder, Inc., received

a special use permit to mine, process, and transport gravel and

sand on a large tract of land in Lyons, Colorado. The permit was

amended several times before the Boulder County Board of County

Commissioners passed “Resolution 98-32” in 1998. The resolution

conditionally approved the permit sought in docket “SU-96-18,”

which, in turn, incorporated all the prior permits. The resolution

authorized the mining special use, along with the various accessory

uses that Western Mobile and its successors could use the property

for in connection with the special use.

¶3 Western Mobile’s parent company, Lafarge West, Inc., took

over operations at the site and engaged in active mining until

approximately 2006. In November 2011, Lafarge asked the

1
Colorado Division of Reclamation, Mining, and Safety (DRMS) to put

Lafarge’s state permit into a temporary cessation status because

even though Lafarge’s records indicated that “[r]emoval of sand and

gravel stockpiled on site ha[d] occurred since 2006,” active mining

hadn’t. DRMS granted this request the following month.

¶4 Martin Marietta acquired Lafarge’s interests in the property a

few days later, and over the following five years, it engaged in

various activities directed toward restarting gravel and sand

extraction at the site. Then, in 2016 and 2017, the county

approved Martin Marietta’s requests to relocate certain structures

on the property and its site and landscaping plans.

¶5 In response to these approvals, intervenors, Save Our Saint

Vrain Valley, Inc., and surrounding landowners Barbara Cargill,

Richard Cargill, and Matt Condon (collectively, SOSVV), asked the

Director to determine whether Martin Marietta’s mining permit had

lapsed under the Boulder County Land Use Code (Land Use Code).1

Section 4-604 of the Land Use Code provides, in pertinent part, that

a permit lapses “if there has been no activity under any portion of

1 Amanda Dumenigo, another landowner who joined SOSVV’s

request, is not a party to this appeal.

2
the special use permit for a continuous period of five years or

more.” The Director determined that the permit hadn’t lapsed

under this provision, reasoning that “the approval [resolution]

governs not only the mining operations, but also the activities to

plan and prepare for mining as well as all necessary post-mining

reclamation activities.” The Director further explained that

“reclamation work, a type of mining-related activity contemplated by

the approval [resolution,] has continued without a consecutive

[five]-year lapse.”

¶6 SOSVV appealed, and while the Board and Boulder County

District Court both upheld the Director’s determination,2 a division

of this court reversed. See Save Our Saint Vrain, Inc. v. Boulder

Cnty. Bd. of Adjustment, 2021 COA 44, ¶ 57 (Marietta I). The

division observed that the term “special use permit” referred to the

permitted special use (i.e., open pit gravel mining) and not every

activity required under the approval resolution. Id. at ¶¶ 43-44.

For an activity to fall under any portion of the special use permit as

2 Of the five members of the Board, three voted to overturn the

Director’s determination. But because the Board lacked a
supermajority vote, it nonetheless upheld the decision.

3
contemplated by the lapse provision, the division further reasoned,

the activity must either be “directly related to the special use itself,

or any authorized accessory uses.” Id. at ¶ 5. And given that the

Director adopted a broader interpretation of the lapse provision

when sustaining Martin Marietta’s permit, the division concluded

that he misconstrued the Land Use Code. Id. at ¶ 55.

¶7 On remand, the Director reversed his initial determination,

reasoning that Martin Marietta’s permit had lapsed because no

active mining had occurred at the site since 2006, and the company

hadn’t engaged in any activities directly related to gravel mining.

The Director further reasoned that “[b]ecause no mining ha[d]

occurred for over fifteen years, it follows that accessory uses [had]

also not occurred.” Finally, the Director determined that equitable

considerations didn’t dictate a different outcome. Specifically, he

rejected Martin Marietta’s argument that the county was equitably

estopped from asserting lapse because the county’s previous

statements suggested that the permit had remained valid.

¶8 The Board unanimously affirmed the Director’s determination.

Then, in accordance with section 4-1201 of the Land Use Code,

Martin Marietta appealed the Board’s final decision to the district

4
court under C.R.C.P. 106(a)(4). The court upheld the Director’s

determination and the Board’s decision.

II. Analysis

¶9 Martin Marietta contends that the Board erred by upholding

the Director’s determination that Martin Marietta’s mining permit

had lapsed because the Director (1) misconstrued and misapplied

the division’s holding in Marietta I and (2) failed to conclude that the

county was equitably estopped from enforcing the lapse provision.

We address each contention in turn.

A. The Director and Board Erred in Their
Determinations that Martin Marietta’s Permit
Had Lapsed Under the Land Use Code

¶ 10 Martin Marietta contends that the Board “exceeded its

jurisdiction and abused its discretion when it affirmed the

[D]irector’s determination that the permit had lapsed.” We agree.

1. Standard of Review and Applicable Law

¶ 11 “Our review under C.R.C.P. 106(a)(4) is limited to ‘a

determination of whether the [governmental] body or officer has

exceeded its jurisdiction or abused its discretion, based on the

evidence in the record before the defendant body or officer.’” Langer

v. Bd. of Comm’rs, 2020 CO 31, ¶ 12 (quoting Ad Two, Inc. v. City &

5
Cnty. of Denver, 9 P.3d 373, 376 (Colo. 2000)); see C.R.C.P.

106(a)(4)(I). In doing so, we sit in the same position as the district

court and review de novo whether the agency has abused its

discretion. Khelik v. City & Cnty. of Denver, 2016 COA 55, ¶ 13; see

also Bd. of Cnty. Comm’rs v. O’Dell, 920 P.2d 48, 50 (Colo. 1996)

(“Review of a governmental body’s decision pursuant to Rule

106(a)(4) requires an appellate court to review the decision of the

governmental body itself rather than the district court’s

determination regarding the governmental body’s decision.”). An

administrative agency abuses its discretion only when its decision

isn’t supported by any competent evidence in the record or is based

on a misinterpretation or misapplication of the law. Khelik, ¶ 13.

¶ 12 No competent evidence means that the decision is “so devoid

of evidentiary support that it can only be explained as an arbitrary

and capricious exercise of authority.” Langer, ¶ 13 (quoting

Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dep’t, 196 P.3d

892, 900 (Colo. 2008)). Thus, “[a]n action by an administrative

agency is not arbitrary or an abuse of discretion when the

reasonableness of the agency’s action is open to a fair difference of

6
opinion, or when there is room for more than one opinion.” Khelik,

¶ 13.

¶ 13 Similarly, if the language of a municipal code, ordinance, or

statute is ambiguous or unclear, we generally give deference to an

agency’s interpretation of the provision it’s charged with enforcing.

Sierra Club v. Billingsley, 166 P.3d 309, 312 (Colo. App. 2007); see

also Giuliani v. Jefferson Cnty. Bd. of Cnty. Comm’rs, 2012 COA

190, ¶ 40. Accordingly, while not bound, we may accept the

agency’s construction of the law if it’s reasonable and warranted by

the record. See Sierra Club, 166 P.3d at 312; City of Commerce City

v. Enclave W., Inc., 185 P.3d 174, 178 (Colo. 2008); see also

Whitelaw v. Denver City Council, 2017 COA 47, ¶ 8 (“While

interpretation of a city code is reviewed de novo, interpretations of

the code by the governmental entity charged with administering it

deserve deference if they are consistent with the drafters’ overall

intent.”).

¶ 14 “In reviewing the agency’s construction [of a code], we rely on

the basic rules of statutory construction, affording the language of

the provisions at issue their ordinary and common sense meaning.”

Enclave W., Inc., 185 P.3d at 178; see also Land Use Code § 1-1000.

7
“Our primary task in interpreting statutes and municipal

enactments is to give effect to the intent of the drafters, which we

do by looking to the plain language.” Waste Mgmt. of Colo., Inc. v.

City of Commerce City, 250 P.3d 722, 725 (Colo. App. 2010). “If the

language of the provision at issue is clear and the intent of the

legislative body that enacted it may be discerned with certainty, we

may not resort to other rules of statutory interpretation.” Colo.

Health Consultants v. City & Cnty. of Denver, 2018 COA 135, ¶ 13.

But if we determine that the language “lends itself to alternative

constructions and its intended scope is ambiguous or unclear, we

then look to the statute’s context, legislative history, prior law, the

consequences of a given construction, and the goal of the statutory

scheme.” Hotsenpiller v. Morris, 2017 COA 95, ¶ 19.

2. Discussion

¶ 15 Subsection 4-604.C of the Land Use Code sets forth the lapse

provision:

Any approved use by Special Review . . . shall
lapse, and shall be of no further force and
effect, if the use is inactive for any continuous
five-year period or such shorter time as may be
prescribed elsewhere in this Code or in a
condition of a specific docket’s approval. If
this period of inactivity occurs, the use may

8
not be recommenced without a new
discretionary approval granted under this
Code. An approved special use shall be
deemed inactive under this Subsection
4-604.C. if there has been no activity under
any portion of the special use permit for a
continuous period of five years or more as a
result of causes within the control of the
special use permittee or agent.

(Emphasis added.) In Marietta I, ¶ 5, the division concluded that

this “provision unambiguously requires activity directly related to

the special use itself, or any authorized accessory uses, to prevent a

lapse.”

¶ 16 Martin Marietta argues that the Board abused its discretion

when it affirmed the Director’s determination that the company’s

special use permit had lapsed because (1) the property hadn’t been

mined since 2006 and (2) the absence of mining meant that no

qualifying accessory uses had occurred either. Specifically, Martin

Marietta contends that, on remand, the Director disregarded the

division’s decision because he ignored the evidence of the

company’s test mining activities in 2015. Additionally, Martin

Marietta argues that the Director “declined to consider the

numerous accessory uses that took place at the [site] since 1998”

9
and, instead, erroneously concluded that such uses couldn’t have

occurred without an operating principal use.

a. Whether the Director’s Determination
is Entitled to Deference

¶ 17 As an initial matter, Martin Marietta argues that we should

give no deference to the Director’s determination that the purported

accessory uses alone were insufficient to preclude a lapse. Among

other things, Martin Marietta asserts that the Director’s

determination constituted a reinterpretation of the lapse provision

that the division in Marietta I had already concluded was

unambiguous.

¶ 18 But while the division concluded that “authorized accessory

uses” may prevent a lapse, it didn’t address what that term meant

or how it applied to the circumstances of this case. On remand, the

Director was required to decide whether the uses Martin Marietta

claimed had occurred on the property were “authorized accessory

uses” within the meaning of that term under law. Answering that

question didn’t require the Director to reinterpret the lapse

provision itself. Instead, the Director had to interpret “authorized

accessory uses” under a separate provision in the Land Use Code

10
and decide under the facts whether Martin Marietta had engaged in

qualifying accessory uses.

¶ 19 Regardless, we extend no deference to the Director’s

interpretation of accessory uses because we conclude next that the

relevant provision is unambiguous. See Sierra Club, 166 P.3d at

312.

b. The Director Abused His Discretion When He Failed to
Examine Whether Martin Marietta’s Claimed
Accessory Uses Precluded the Permit’s Lapse

¶ 20 In challenging the Director’s determination regarding

accessory uses, Martin Marietta asserts, among other things, that

the division “specifically instructed the Director to consider

accessory uses as an independent basis to prevent lapse.” Despite

this instruction, Martin Marietta further contends, “[t]he Director

improperly disregarded as irrelevant evidence of all accessory

uses — even those expressly identified and authorized in the

Permit — because he . . . concluded that accessory uses could not

occur without an operating primary use.” We agree with Martin

Marietta that this was an error.

¶ 21 The Director acknowledged that, in Marietta I, the division had

instructed him to consider on remand whether Martin Marietta had

11
engaged in any authorized accessory uses sufficient to preclude the

permit’s lapse. The Director further acknowledged that the

resolution approved certain activities as accessory to the principal

gravel mining special use. But he also noted that those enumerated

uses must comply with section 4-516 of the Land Use Code to be

considered authorized accessory uses. Accordingly, the Director

reasoned that the activities Martin Marietta contended were

accessory must “be customary and incidental to the principal use of

the property, which is gravel mining.” And after the Director found

— with record support — that the property hadn’t been used for

gravel mining since 2006,3 he concluded that authorized accessory

uses also hadn’t occurred because such uses “cannot exist separate

and apart from the principal use.” But we think that this

conclusion draws too bright a line.

3 Contrary to Martin Marietta’s argument, competent evidence in

the record supports this factual finding. For example, the
communications and annual reports that Martin Marietta and its
predecessor submitted to the DRMS indicated that no excavations
had occurred since at least 2006. Similarly, the declaration Martin
Marietta submitted in support of its briefing to the Director stated
that “Lafarge physically extracted sand and gravel at the Lyons Pit
pursuant to the Entitlements until at least 2006.”

12
¶ 22 Section 4-516 of the Land Use Code governs accessory uses.

It provides that “[a]n accessory use must be a use customarily

incidental to and on the same parcel as the main use.” Land Use

Code § 4-516. Because the Land Use Code doesn’t define

“customarily” or “incidental,” we look to the plain meaning of these

words. See Enclave W., Inc., 185 P.3d at 178; see also Edwards v.

New Century Hospice, Inc., 2023 CO 49, ¶ 20. Merriam-Webster

defines “customary” as “commonly practiced, used, or observed.”

Merriam-Webster Dictionary, https://perma.cc/U7PD-LXDZ. And

the term “incidental” is defined in Black’s Law Dictionary as

“[s]ubordinate to something of greater importance[,] having a minor

role.” Black’s Law Dictionary 908 (12th ed. 2024). Considering the

plain and ordinary meaning of these terms, then, a use is deemed

accessory under the Land Use Code only if it supports the principal

use.

¶ 23 Other language in section 4-516 supports this interpretation.

For example, one provision defines an accessory structure as “[a]

subordinate structure detached from, but located on, the same lot

as the Principal Use, the use of which is incidental and accessory to

that of the Principal Use.” Land Use Code § 4-516.M.1. Similarly,

13
several other provisions state that an accessory use must be in the

service of an active principal use. For example, a provision allowing

accessory agricultural composting states that the location of the

composting must be a certain distance away from where the

agricultural operation is occurring. Land Use Code § 4-516.A.5.c.

And section 4-516.E.1 allows “accessory chicken keeping” for the

purpose of “[r]aising chicken hens primarily for the people living on

the parcel.” (Emphasis added.) These provisions — considered in

context with the definition of accessory uses — support the

Director’s conclusion that accessory uses can’t exist independently

from the principal use. See Land Use Code § 1-1000.A.1 (stating

that “[w]ords and phrases shall be read in context”).

¶ 24 However, we also view as too stark the Director’s conclusion

that “[b]ecause no mining ha[d] occurred for over fifteen years, it

follows that accessory uses have also not occurred.” This

conclusion implies that a use is no longer considered an accessory

use as soon as the principal special use stops, even if only briefly

so. But while an accessory use can’t exist independently from the

principal use, the two terms are also not coextensive. If that were

the case, the Marietta I division could have decided the issue of

14
lapse given that it was “undisputed that no ‘active mining’ ha[d]

occurred since at least 2006.” Marietta I, ¶ 15. Instead, the

division remanded the matter to the Director to consider whether

Martin Marietta had engaged in activities “directly related to the

special use itself, or any authorized accessory uses, to prevent a

lapse.” Id. at ¶ 5 (emphasis added). The Director’s conclusion that,

in essence, the accessory uses and principal use are coextensive

runs afoul of this instruction because it collapses two distinct

categories of activities into one.

¶ 25 Instead, the determination whether a particular activity

qualifies as an accessory use doesn’t solely hinge upon the status of

the principal use. The relevant inquiry is whether the purported

accessory use activity supports the principal use. Put differently,

an activity is no longer an accessory use when it stops supporting

the principal use, not when the principal use itself stops. For

example, the parties argue about the status of a gravel pile at the

mine site. It’s true that stockpiling may constitute an accessory use

if the operator paused active mining but continued processing and

hauling gravel from its stockpiled materials. But it’s also true that

the same pile of gravel wouldn’t qualify as an accessory use if it was

15
simply sitting abandoned on the property. At bottom, whether a

particular activity is an accessory use under the circumstances is a

question of fact that must be evaluated by considering whether the

activity was done in service of the principal use at the time it was

allegedly conducted. Here, the Director erred to the extent he

concluded that the absence of mining automatically meant that no

accessory use had occurred on the property.

¶ 26 And the record shows that this legal conclusion effectively

ended the Director’s inquiry. He did not go on to factually consider

whether the activities Martin Marietta claimed had occurred on the

site amounted to accessory uses under the circumstances of this

case.

¶ 27 In its briefing to the Director and on administrative appeal,

Martin Marietta asserted that, along with its predecessors, it had

engaged in the following accessory uses at the property:

(1) maintenance of outside storage and equipment; (2) stockpiling

and hauling of mined materials; (3) maintenance of a portable

office; (4) maintenance of a low-water crossing and conveyor bridge;

(5) groundwater monitoring; (6) “2015-16 facility upgrades and

additional storage”; and (7) “[g]rading, right-of-way construction,

16
[and] other ‘activities to plan and prepare for mining.’” The first

four activities are listed as accessory uses in the approval

resolution. The resolution also identifies as authorized accessory

uses, among other things, the (1) storage of fuel, oil, and grease;

(2) the “use of a portable crusher and screen”; (3) “processing of

sand and gravel including crushing, screening, [and] washing”; and

(4) the use of a railroad and state highway for the purpose of

hauling the extracted materials.

¶ 28 The resolution approved these accessory uses “provided that

all applicable regulations of [section] 4-516 of the [Land Use Code],

as amended, are met.” See also Marietta I, ¶ 48 (noting that the

quoted “language conditions the accessory use upon meeting the

regulations established by the County”). And section 4-516 of the

Land Use Code requires, among other things, that an accessory use

must be “customarily incidental to and on the same parcel as the

main use.”

¶ 29 The problem with the Director’s decision is that although he

discussed some of the uses that Martin Marietta claims were

authorized accessory uses under the Land Use Code, he failed to

17
make factual findings about them or conclude whether they in fact

met the standard. In his decision, the Director said that

[f]or example, the Code allows an accessory
structure on a property, so long as its use “is
incidental and accessory to that of the
Principal Use.” 4-516.L.l of the Code. The
mere fact that an additional structure exists
[on] a property does not make it an accessory
structure if it is not being used as an
accessory to the principal use.

The accessory uses approved by the Resolution
include “[o]utside storage, and the storage of
fuel, oil, and grease, as well as the repair of
equipment and machinery, and portable
offices” and “use of a portable crusher and
screen, and accessory processing of sand and
gravel including crushing, screening, washing,
and stockpiling.” In order to comply with the
Code, these uses must be customary and
incidental to the principal use of the property,
which is gravel mining. The mere fact that
items were stored on the site, or that these
uses may have occurred in some form, does
that [sic] make them authorized accessory
uses under the Resolution, absent them being
customary and incidental to the main use of
the property.

¶ 30 But the Director didn’t go on to address each of these claimed

activities, make findings about them, and conclude why each

activity was or wasn’t accessory to the principal special use. In

other words, the Director didn’t decide whether Martin Marietta’s

18
claimed activities were accessory uses under the circumstances of

this particular case.

¶ 31 For example, the Director stated that “[t]he mere fact that an

additional structure exists [on] a property does not make it an

accessory structure if it is not being used as an accessory to the

principal use.” We agree with this statement as far as it goes. But

the Director didn’t conclude whether this structure was being used

as an accessory to the principal use. And while we understand that

there was no active mining at the time, that doesn’t necessarily

mean that Martin Marietta wasn’t using the additional structures

as part of a mining operation. That is a factual finding that the

Director would have to make.

¶ 32 Likewise, the Director also noted that “[t]he mere fact that

items were stored on the site, or that these uses may have occurred

in some form, does [not] make them authorized accessory uses

under the [r]esolution, absent them being customary and incidental

to the main use of the property.” But the Director didn’t reach a

conclusion about why the items were stored on this site. The same

is true for the maintenance of a portable office and outside storage

and maintenance of equipment.

19
¶ 33 The Director also didn’t address, let alone make factual

findings about, other claimed activities. For example, Martin

Marietta argued that stockpiling and hauling of mined materials,

maintenance and use of the low-water crossing and conveyor

bridge, and the 2015-2016 facility upgrades were sufficient to

prevent lapse. The Director didn’t substantively address these

claims.

¶ 34 Finally, Martin Marietta argued that its work in dewatering

Pond 3 and “conducting excavations in ten different areas on-site”

in 2015 amounted to open pit mining, the special use allowed

under the permit.4 The Director determined that the test

excavations couldn’t preclude a lapse because they occurred more

than five years after mining last occurred on the site, and Martin

4 SOSVV argues that Martin Marietta should not be able to pursue

this argument on appeal because it conceded that there was no
“active mining” on the site in Marietta I. We disagree. It does
appear that it was “undisputed” at the time Marietta I issued that
active mining hadn’t occurred on the site since 2006. But that
concession in combination with the record in this case is not
enough to foreclose Martin Marietta’s argument on appeal. At
bottom, it is a factual question what the test excavations qualify as
under the Land Use Code. Even if they don’t represent “active
mining,” the Director will have to decide on remand whether the
test excavations are activity directly related to the special use,
evidence of an accessory use, or something else entirely.

20
Marietta didn’t offer any explanation for the almost decade-long gap

in mining operations. That may be true, but again it requires

factual findings that are missing from this record.

¶ 35 The Director’s determination on this point was tied to his

conclusion that no accessory uses could exist apart from the

permitted special use. After deciding that no accessory uses could

have occurred after the last mining in 2006, the Director then

concluded that the test excavations in 2015 couldn’t have prevented

a lapse. But that’s only true if there were no other activities

between 2006 and 2015 that would have also prevented a lapse. If,

for example, Martin Marietta had engaged in accessory uses in

2009 and 2013, then test excavations could well have prevented a

lapse after 2015. We therefore conclude that the Director will have

to reevaluate Martin Marietta’s claims about the test excavations

along with its claimed accessory uses.

¶ 36 The Board’s decision likewise doesn’t contain findings on

Martin Marietta’s claimed uses. The Board upheld the Director’s

determination on administrative appeal without examining each of

the claimed accessory uses and without making an independent

factual record. It concluded that Martin Marietta’s alleged activities

21
on the site weren’t sufficient to sustain the permit “based on the

entirety of the record presented to [it].” While this isn’t in any way

inappropriate, it means that the Board’s decision doesn’t provide a

basis to change our conclusion.

¶ 37 We reject the Director’s legal conclusion that an accessory use

automatically cannot exist when the permitted special use is

dormant. As we have explained, whether an accessory use is

nonetheless incidental to the dormant special use is a fact-intensive

inquiry that requires examination of all the circumstances. And

because the Director didn’t analyze the claimed accessory uses on

the merits or make any findings in support of his determination

that Martin Marietta’s permit had lapsed, we’re unable to discern a

factual basis for that determination and decide whether it rises to

an abuse of discretion. See People in Interest of J.L., 121 P.3d 315,

318 (Colo. App. 2005) (we have no basis for conducting a

meaningful review when the trial court doesn’t make factual

findings). The Board’s decision necessarily meets the same fate.

Accordingly, we reverse the Director’s determination — and the

Board’s decision upholding it on administrative appeal — and

remand the case to the Director so that he may make factual

22
findings and reach a conclusion on the merits about whether

Martin Marietta’s activities constituted authorized accessory uses

(or a continued special use in the case of test excavations) barring

the lapse. By doing so, we express no opinion as to the merits of

Martin Marietta’s claim.5

B. Equitable Estoppel

¶ 38 Martin Marietta next contends that the Director erred when he

concluded that equitable considerations didn’t preclude the permit’s

lapse. We disagree.

1. Applicable Law and Standard of Review

¶ 39 “The doctrine of equitable estoppel is premised upon principles

of fair dealing and is designed to prevent manifest injustice.” Ward

v. Dep’t of Nat. Res., 216 P.3d 84, 93 (Colo. App. 2008) (citation

5 Martin Marietta also asserts that the Director “misinterpreted and

misapplied the Code when considered against the four factors set
forth in [section] 4-1202.A.1.” Specifically, it contends that the
Director’s interpretation of the lapse provision conflicts with (1) the
provision’s technical meaning; (2) the evidence regarding the
provision’s past interpretation; (3) the rules of interpretation; and
(4) “both the intent of the Code and the Boulder County
Comprehensive Plan to guide future growth, development, and
distribution of land uses within Boulder County.” But as we have
already noted, the Director’s role on remand was limited to the
application, and not interpretation, of the lapse provision. This
argument thus misses the mark.

23
omitted). While this doctrine may be invoked against a

municipality, such an invocation isn’t as free as it would be against

an individual. See Colo. Health Consultants, ¶ 39. “In the context

of municipalities, the doctrine of equitable estoppel bars a city from

enforcing some obligation by taking a position contrary to a

previous representation reasonably relied upon by the party dealing

with the city to [the party’s] detriment.” P-W Invs., Inc. v. City of

Westminster, 655 P.2d 1365, 1372 (Colo. 1982).

¶ 40 Accordingly, a party alleging equitable estoppel must show

that

the party against whom the estoppel is
asserted must know the [relevant] facts; that
party must also intend that its conduct be
acted upon or must lead the other party to
believe that its conduct is so intended; the
party claiming estoppel must be ignorant of
the true facts; and the party asserting the
estoppel must detrimentally rely on the other
party’s conduct.

Jefferson Cnty. Sch. Dist. No. R-1 v. Shorey, 826 P.2d 830, 841

(Colo. 1992); see also Colo. Health Consultants, ¶ 40.

¶ 41 “Whether the circumstances in a given case reveal a

representation and reasonable reliance so as to give rise to

24
equitable estoppel is a question of fact.”6 P-W Invs., 655 P.2d at

1372; see also Kruse v. Town of Castle Rock, 192 P.3d 591, 603

(Colo. App. 2008). We accept findings of fact on review unless they

are so clearly erroneous as not to find support in the record. Colo.

Health Consultants, ¶ 38.

2. Discussion

¶ 42 Martin Marietta contends that it “reasonably relied on the

[c]ounty’s representations regarding the ongoing validity of the

6 SOSVV and Martin Marietta dispute the applicable standard of

review. Relying on the quoted language from P-W Investments, Inc.
v. City of Westminster, 655 P.2d 1365, 1372 (Colo. 1982), SOSVV
asserts that “[w]ithin the context of a C.R.C.P. 106 appeal, a
government body’s findings of fact and determination regarding
equitable estoppel must be upheld so long as it was not an abuse of
discretion.” Martin Marietta argues that because “P-W treats a
review of equitable reliance as an application of law to fact,” the
proper standard of review is whether the Director’s decision
rejecting the equitable estoppel claim has reasonable basis in law.
We need not resolve this dispute because we conclude below that
the Director didn’t err regardless of which standard applies.

25
[p]ermit since” it acquired the mine in 2011.7 Specifically, Martin

Marietta argues that the county is equitably estopped from

enforcing the lapse provision because Martin Marietta spent over

$750,000 in reasonable reliance on

• a November 2011 letter, in which the county informed

Martin Marietta that, among other things, “[t]here [didn’t]

appear to be any outstanding/open zoning or building code

violations that appl[ied] to the subject property” at that

time;

• a provision in the assignment agreement through which

Martin Marietta acquired Lafarge’s lease interest in the

7 Martin Marietta also argues that its permit hasn’t lapsed because

circumstances outside of Martin Marietta’s control prevented it from
restarting mining operations. Specifically, Martin Marietta
contends that “[l]arge-scale mining would have begun shortly after
Martin Marietta’s acquisition if not for: (1) the 2013 floods, which
significantly delayed mine preparation activities . . . , and
(2) [Boulder County’s] decision to defer its processing of the final
applications since 2017.” While Martin Marietta presents this issue
in the part of the opening brief discussing equitable considerations,
it seeks relief under the language of section 4-604 providing that
the qualifying period of inactivity must be “a result of causes within
the control of the special use permittee or agent.” But this
argument implicates whether Martin Marietta’s permit should be
sustained under the lapse provision, under which we reverse for
reconsideration above, not under the equitable estoppel doctrine.

26
property that provided the county consented to the

assignment and that certain agreements between the

county and Martin Marietta’s predecessors remained in full

force and effect;

• an August 2016 letter approving Martin Marietta’s request

for relocation of certain buildings and processing equipment

on the property; and

• a January 2017 letter, in which the county approved Martin

Marietta’s site plan and landscaping plan that it submitted

in connection with the previously approved relocation

request.

We’re not persuaded.

¶ 43 As an initial matter, we note that Martin Marietta argues for

the first time in this appeal that the county’s consent to the

assignment agreement amounted to a representation regarding the

permit’s ongoing validity. But as the Board and SOSVV both point

out, Martin Marietta didn’t raise this argument in the

administrative proceedings or the district court. In support of

preservation, Martin Marietta contends that this issue constitutes

27
“additional record evidence” “as part of its larger estoppel

argument,” not a new argument. But this misses the point.

¶ 44 By merely asserting an equitable estoppel claim, Martin

Marietta didn’t preserve for our review every possible estoppel

argument that may have some record support and regardless of

whether that argument was presented during the administrative

proceedings. Instead, Martin Marietta was still required to identify

the “additional record evidence” supporting its equitable estoppel

claim and give the Director and the Board an opportunity to

address that issue. See Cuevas v. Pub. Serv. Co. of Colo., 2023 COA

64M, ¶ 35 n.3 (noting that although parties are not required to use

“talismanic language” to preserve issues for appeal, the district

court must be presented with an adequate opportunity to make

findings of fact and conclusions of law on the issue (quoting People

v. Melendez, 102 P.3d 315, 322 (Colo. 2004))) (cert. granted in part

July 1, 2024). Because Martin Marietta failed to do that, this

argument is waived, and we decline to address it further. See

Abromeit v. Denver Career Serv. Bd., 140 P.3d 44, 53 (Colo. App.

2005) (concluding that the district court properly declined to

address a party’s equitable estoppel claim in the C.R.C.P. 106

28
action where that claim wasn’t raised in the administrative

proceedings).

¶ 45 And like the Director, we also conclude that the remaining

communications don’t satisfy the elements of equitable estoppel.

Specifically, none of the communications included representations

from the county that, at the time they were made, Martin Marietta’s

permit hadn’t expired. Rather, they concerned issues unrelated to

the potential lapse.

¶ 46 The November 2011 letter informed Martin Marietta that there

were no zoning or building violations on the property at the time; it

didn’t contain any statements regarding the permit’s validity. We’re

unpersuaded by Martin Marietta’s argument that “the [c]ounty’s

representation concerning zoning violations . . . directly addresses

the [p]ermit’s validity” because if the permit had lapsed by the time

of the letter, all operations on the property would have necessarily

constituted a violation of the Land Use Code. As the Director noted,

“The lapse of a special use permit is not a zoning violation. A

zoning violation is an activity or use on a property that violates the

terms and conditions of the [Land Use] Code.” Accordingly, the

November 2011 correspondence was limited to the status of any

29
zoning or building violations on the property, regardless of whether

the permit had already lapsed by that time.

¶ 47 The August 2016 and January 2017 letters were similarly

limited in scope. The county merely communicated in the first that

Martin Marietta’s relocation request had been approved and in the

second that its site plan and landscaping plan had been approved.

¶ 48 In arguing otherwise, Martin Marietta asserts that the 2016

correspondence was a representation that the permit was valid

because by stating that the county planner’s determination was

“[b]ased on [her] research of the docket,” she suggested that she

had reviewed all aspects of the permit before granting the request.

But as the Director observed, the planner’s review of the docket was

clearly limited to Martin Marietta’s relocation proposal and didn’t

entail a consideration of “the history of mining activity on the parcel

to determine whether the Permit had lapsed.”

¶ 49 We’re likewise not persuaded by Martin Marietta’s contention

that the January 2017 “approval was necessarily a representation

that the [site] plan was consistent” with the lapse provision given

that the plan proposal had to comply with all provisions of the Land

Use Code. While section 4-806 of the Land Use Code states that a

30
site plan proposal must be consistent with its provisions, we don’t

see approval of that proposal as a confirmation that the special use

permit itself is valid. Whether or not Martin Marietta’s permit had

lapsed wasn’t at issue in the site plan application. Accordingly, an

argument that the county asserted a position on this issue solely by

approving the application unduly stretches the bounds of the

equitable estoppel doctrine that is generally disfavored and applied

only in limited circumstances. See Santich v. VCG Holding Corp.,

2019 CO 67, ¶ 7.

¶ 50 In sum, the record shows that Martin Marietta didn’t ask for

— and the county didn’t make — a determination about whether

the permit had remained valid under the lapse provision. Indeed,

the Director addressed this specific question later in response to

31
SOSVV’s request.8 Before that, the county only referred to the lapse

provision in a 2006 letter it sent to Lafarge:

Please note that Subsection 4-604.C. requires
that a special use permit expires if the use is
inactive for any continuous five-year period.
While we do not now have information that
such a lapse has occurred, it could occur in
the future. Lafarge and any subsequent owner
should be aware of this limitation.

¶ 51 The above record shows that, in the communications Martin

Marietta directs us to, the county didn’t consider the applicability of

the five-year lapse provision to the circumstances of this case. And

when the county addressed that provision in the 2006 letter, it

didn’t tell Martin Marietta’s predecessor that the permit hadn’t

lapsed. To the contrary, it warned the predecessor that, while the

county had no information that the permit had lapsed, such a lapse

8 To the extent Martin Marietta argues that equitable estoppel

applies because the Director’s determination on remand conflicts
with his initial determination and the county’s position in the
letters, we disagree. The Director was required to reconsider the
issue of lapse in light of the Marietta I division’s decision to reverse
his initial determination and remand the matter for further
proceedings. Then, on remand, the Director reached a different
conclusion in reliance on the standard articulated in Marietta I.
Thus, even if Martin Marietta believes that the county flip-flopped
on its previous position in connection to the lapse provision, this
record undercuts that argument.

32
could occur in the future. The county then reaffirmed this position

in the January 2017 correspondence by enclosing the 2006 letter

and stating that its contents remained in effect.

¶ 52 Thus, contrary to Martin Marietta’s assertion, this is not a

case where the county said that the permit hadn’t lapsed and then

reversed course. Cf. Hargreaves v. Skrbina, 662 P.2d 1078,

1079-81 (Colo. 1983) (concluding that a city was equitably estopped

from enforcing a setback requirement under a zoning code against a

party who wasn’t aware of the requirement and who acted “in

reliance on their building permit and the [c]ity’s failure to revoke it

after the violation became known”); Eason v. Bd. of Cnty. Comm’rs,

70 P.3d 600, 605-06 (Colo. App. 2003) (concluding that a county

deprived a party of “a protected interest in property within the

meaning of the Due Process Clause” where the county contradicted

its prior express representation that a particular use of the property

was permitted under the zoning ordinance). And while, in Martin

Marietta’s words, the county may have “acted to foster, not oppose,

commercial mineral extraction” by approving the improvement

requests, that conduct likewise didn’t equate to a representation

that the permit wasn’t subject to a potential lapse. After all, it was

33
incumbent upon Martin Marietta as the operator of the mine to

ensure that its operations complied with all aspects of the Land Use

Code, including section 4-604.

¶ 53 Considering this record, we agree with the Director that Martin

Marietta can’t establish “that it changed its position, to its

detriment, in justifiable reliance on the county’s conduct.” And

because Martin Marietta can’t establish one of the elements of

equitable estoppel, this claim fails. See Santich, ¶ 7 (noting that the

doctrine of equitable estoppel applies only when all elements

constituting an estoppel are clearly shown).

III. Disposition

¶ 54 The district court’s judgment is affirmed in part and reversed

in part, and the case is remanded for further administrative

proceedings consistent with this opinion. Specifically, the Director

and the Board must consider on the merits whether Martin

Marietta’s claimed activities since 2006 prevented a lapse of the

special use permit.

JUDGE HARRIS and JUDGE YUN concur.

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