HomeMy WebLinkAbout790497.tiff IN THE DISTRICT COURT IN AND FOR THE
COUNTY OF WELD AND STATE OF COLORADO
79-CV- 431
Division II
THE BOARD OF COUNTY COMMISSIONERS )
OF WELD COUNTY, COLORADO; THE )
TOWN OF FREDERICK, COLORADO; )
THE CITY OF FT. LUPTON, COLORADO; )
THE WEISNER SUBDIVISION PRESERVA- )
TION ASSOCIATION, ) COMPLAINT FOR
DECLARATORY AND
Plaintiffs , ) INJUNCTIVE RELIEF
vs . )
� c ,
THE CITY OF NORTHGLENN, COLORADO, )
Defendant. )
COME NOW the Plaintiffs , by and through their attor-
neys , Francis K. Culkin and Thomas O. David, Weld County
Attorney, and for their Complaint against the Defendant City
of Northglenn, Colorado allege as follows :
I . INTRODUCTION
This is a suit for declaratory relief and injunctive
relief brought by the Plaintiffs in order to determine
whether or not the City of Northglenn must receive a Special
Use Permit from Weld County for the construction and opera-
tion of a sewage treatment facility in the Southwestern
portion of Weld County.
II . PARTIES
1. Your Plaintiff Weld County, by and through the
Board of County Commissioners of Weld County,
Colorado, is a political subdivision of the State
of Colorado and is a Home Rule County pursuant to
the statutes of the State of Colorado.
2. That the Plaintiff City of Ft. Lupton is a poli-
tical subdivision located in Weld County, Colorado
___ 91.0019790497
and is organized and exists pursuant to the sta-
tutes of the State of Colorado.
3 . That the Plaintiff Town of Frederick is a poli-
tical subdivision located in Weld County, Colorado
and is organized and exists pursuant to the sta-
tutes of the State of Colorado.
4 . That the Plaintiff Weisner Subdivision Preserva-
tion Association is a non-profit association of
citizens living in Weld County and Adams County,
Colorado and are organized for the purpose of
protecting the health, safety and welfare of the
members of said organization as hereinafter set
forth in this Complaint.
5 : That the Defendant City of Northglenn, Colorado is
a Home Rule City duly organized and existing under
the statutes of the State of Colorado and located
in the County of Adams, State of Colorado.
III . GENERAL ALLEGATIONS
6 . That this is an action brought pursuant to Rule
57 , C.R.C.P. , and §13-51-101 et seq. , CRS 1973 ,
seeking a declaratory judgment for the purpose of
determining certain questions of actual contro-
versy which exist between the parties as herein-
after set forth and for injunctive relief pursuant
to Rule 65 , C.R.C.P.
7 . That the Defendant City of Northglenn has pur-
chased land located in Section 36 , Township 1
North of Range 68 West of the 6th P.M. in Weld
County, Colorado , for the purpose of constructing
a sewage treatment plant on said property to serve
the residents and inhabitants of the City of
Northglenn, Colorado and further to serve certain
residents and inhabitants of Thornton, County of
Adams , Colorado.
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8 . That the real estain described in paragraph 7
above is zoned A-Agricultural pursuant to the Weld
County Zoning Resolution.
9 . That the installation and operation of a sewage
treatment facility requires a Special Use Permit
pursuant to Section III, 3 . 3 E (4) (n) of the Weld
County Zoning Resolution.
10 . That the Defendant City of Northglenn did make
application to the Department of Planning Services
of Weld County, Colorado for a Special Use Permit
for the operation of a sewage treatment facility
pursuant to the above stated Section of the Weld
County Zoning Resolution. The Weld County Plan-
ning Commission, on February 20 , 1979 , voted
four (4) to one (1) with three (3) members of the
Weld County Planning Commission being disqualified
from the hearing and one (1) member of the Weld
County Planning Commission being absent on the
date of the hearing, on a motion to approve said
Special Use Permit.
11. That the Defendant City of Northglenn, pursuant to
the Weld County Zoning Resolution appeared before
the Board of County Commissioners of Weld County,
Colorado, who , by virtue of the Weld County Zoning
Resolution has the sole authority to approve
Special Use Permits in Weld County, Colorado.
Said hearing before the Board of County Commis-
sioners of Weld County, Colorado was held on the
21st day of February, 1979 . Following the hearing,
the Board of County Commissioners of Weld County,
Colorado denied the application of the City of
Northglenn for a Special Use Permit by a two to
two vote. The Weld County Home Rule Charter,
Section 3-13 requires that three (3) members of
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the Board of County Commissioners must concur
before any official action of said Board of County
Commissioners shall be effective.
12 . That unless this Court declares that the City of
Northglenn must , prior to the construction of the
sewage treatment facility, obtain a Special Use
Permit pursuant to the Weld County Zoning Resolu-
tion, the Defendant City of Northglenn will con-
struct said sewage treatment facility all to the
detriment of the citizens and members of the
various Plaintiffs named in this Petition.
13 . That on or after the 22nd day of February, 1979 ,
the City of Northglenn by and through its City
Council , formally or informally and , without
notice to any of the Plaintiffs, did resolve that
it would go forward with plans to construct the
sewage treatment facility on the real estate
described in paragraph 7 of this Complaint , and,
in so doing purported to overrule the decision of
the Board of County Commissioners of Weld County,
Colorado in denying the application of the said
City of Northglenn for a Special Use Permit.
IV. FIRST CLAIM FOR RELIEF
14 . Paragraphs 1 though 13 of this Complaint are
incorporated herein by reference.
15. That Plaintiff Weld County is a Home Rule Charter
County pursuant to the Colorado Constitution,
Article XIV, Section 16 and Section 30-11-501 et
seq. , CRS 1973 and that under these provisions ,
the Board of County Commissioners of Weld County
is the governing Board of Weld County and, further ,
that the above referenced statute provides that
any power, function, service or facility vested by
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statute in a particular Weld County Board may be
exercised or performed by any other County Board
designated in the Home Rule Charter .
16. That Section 4-4 (A) (4) of the Weld County Home
Rule Charter provides that the Weld County Plan-
ning Commission is to perform all functions and
duties as directed by the Board of County Com-
missioners . Further , that all decisions of the
Weld County Planning Commission are subject to
appeal to, and review by, the Weld County Board of
County Commissioners in accordance with State law
and the rules and regulations established by the
Board of County Commissioners of Weld County.
17 . That Section 3 . 3 E (4) (n) of the Weld County Zoning
Resolution, adopted by the Board of County Commis-
sioners of Weld County, provides that installation
and operation of a sewage treatment facility
requires the grant of a Special Use Permit by the
Board of County Commissioners .
18 . That, therefore, the Board of County Commissioners
of Weld County has assumed the final authority to
approve or disapprove any public building, struc-
ture or utility, including a sewage treatment
facility located within Weld County, pursuant to
Section 30-28-110 , CRS 1973 , and that the Board of
County Commissioners of Weld County has exercised
that authority by its action of February 21 , 1979
which disapproved of the application by the City
of Northglenn for a Special Use Permit for a
sewage treatment facility.
V. SECOND CLAIM FOR RELIEF
19 . Paragraphs 1 through 18 of this Complaint are
incorporated herein by reference.
20 . That the By-Laws of the Weld County Planning
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Commission provides that all plans , reports , and
recommendations of Lhe Planning Commission must be
approved by a majority of the members of the
Commission.
21 . That the motion to recommend approval for the
Special Use Permit for the City of Northglenn
sewage treatment facility received less than a
majority of the votes of the members of the Weld
County Planning Commission at its meeting of
February 20 , 1979 , and therefore, said vote
constituted a disapproval of said Special Use Per-
mit or, in the alternative, said vote constituted
no action by the Weld County Planning Commission.
22 . That if the Board of County Commissioners of Weld
County is not vested with the final authority to
approve or disapprove the Special Use Permit for a
sewage treatment facility in Weld County, Colo-
rado, the Board of County Commissioners of Weld
County does possess the authority under Section
30-28-110, CRS 1973 to review the disapproval of
said Special Use Permit by the Weld County Planning
Commission and to overrule such disapproval or to
act where there has been no action by the Weld
County Planning Commission.
23 . That the Board of County Commissioners of Weld
County, at its meeting of February 21 , 1979 ,
failed to take any action to overrule the disap-
proval of the application for a Special Use Permit
by the City of Northglenn for a sewage treatment
facility or, in the alternative , failed to take
any action to approve said Special Use Permit .
VI . THIRD CLAIM FOR RELIEF
24 . Paragraphs 1 through 23 of this Complaint are
incorporated herein by reference.
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25. That the Defendant city of Northglenn voluntarily
made application to the Department of Planning
Services of Weld County, Colorado for a Special
Use Permit for the construction and operation of a
sewage treatment facility pursuant to Section 3 . 3
E (4) (n) of the Weld County Zoning Resolution.
26 . That following the vote of February 20 , 1979 , by
the Weld County Planning Commission, the Defendant
City of Northglenn voluntarily appeared before the
Board of County Commissioners of Weld County to
seek approval of said Special Use Permit .
27. That the action of Defendant City of Northglenn,
in voluntarily proceeding with the Special Use
Permit application process pursuant to the Weld
County Zoning Resolution, estops said Defendant
from denying the validity of said process .
28. That the action of Defendant City of Northglenn,
in voluntarily proceeding with Special Use Permit
application process pursuant to the Weld County
Zoning Resolution, constitutes a waiver of any
immunity from such a process said Defendant might
possess .
VII . FOURTH CLAIM FOR RELIEF
29 . Paragraphs 1 through 28 of this Complaint are
incorporated herein by reference.
30 . That the construction and operation of a sewage
treatment facility by Defendant City of Northglenn
is a proprietary function of said City.
31. That Defendant City of Northglenn cannot ignore
the Zoning Resolution of Weld County in construc-
ting and operating a project in the exercise of a
proprietary function of said City.
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VIII . FIFTH CLAIM FOR RELIEF
32 . Paragraphs 1 through 31 of this Complaint are
incorporated herein by reference.
33. That Defendant City of Northglenn has not , at any
time, sought judicial review purusant to Rule 106
(a) (4) , C.R.C.P. of the action taken by the Weld
County Board of County Commissioners in denying
Defendant City of Northglenn ' s application for a
•
Special Use Permit for a sewage treatment facility.
34 . That Defendant City of Northglenn is estopped from
asserting the invalidity of the action of the
Board of County Commissioners of Weld County in
denying the application for a Special Use Permit
for failure to file a Rule 106 (a) (4) , C .R.C.P.
action within the requisite thirty (30) days .
IX. SIXTH CLAIM FOR RELIEF
35. Paragraphs 1 through 34 of this Complaint are
incorporated herein by reference.
36 . That at no time did any of Plaintiffs receive
notice from Defendant City of Northglenn that,
acting through its City Council , Defendant City of
Northglenn intended to take action purporting to
overrule the decision of Plaintiff Weld County in
denying the Special Use Permit for the sewage treat-
ment facility to be constructed by Defendant City
of Northglenn.
37. That as a result of the failure of Defendant City
of Northglenn to notify Plaintiffs , Plaintiffs
have had no opportunity to provide public input
into the administrative process nor to seek
judicial review of Defendant City of Northglenn ' s
decision.
X. SEVENTH CLAIM FOR RELIEF
38. Paragraphs 1 through 37 of this Complaint are
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incorporated herein by reference.
39 . Plaintiff, Town of Frederick, will suffer irre-
parable harm if the City of Northglenn is allowed
to proceed with construction of the sewage treat-
ment facility for the following reasons :
a) The City of Frederick is located approxi-
mately five (5) miles downstream on the Bull
Ditch from the site of the proposed sewage
treatment facility . The facility will empty
secondarily treated sewage into the Bull
Ditch which passes uncovered through the Town
of Frederick close to the municipal school .
This will be dangerous to the health and
welfare of the citizens of Frederick.
b) Frederick is surrounded by fields which are
owned and irrigated by the Farmers Reservoir
and Irrigation Company (FRICO) members . The
partially treated effluent will be used by
FRICO members to irrigate their fields ,
causing health problems to the citizens of
Frederick.
c) The proposed sewage treatment facility is
either located on, or in, the immediate
vicinity of the fault. Given the close
proximity of Frederick to the proposed sewage
treatment facility, this constitutes an
extreme danger to the health and welfare of
the citizens of Frederick .
d) The water that will, be discharged from the
sewage treatment facility into the Bull Ditch
will be excessively high in Nitrates . Fred-
erick' s water supply will be irreparably
harmed by the high level of Nitration in this
water.
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e) The Town of Frederick will be deprived of an
adequate water supply for recently annexed
land if the sewage treatment facility is
constructed. The water supply of Frederick
is drawn, at least in part, from the Arapahoe
Aquifer. The location of the projected
facility is on the recharge area of the
Aquifer. If the facility is constructed, it
will cause irreparable damage to the water
supply of Frederick.
40 . Plaintiff, City of Ft. Lupton, is located down-
stream from the proposed sewage treatment facility .
Although Ft. Lupton is not located on the Bull
Ditch, a cross connection exists between Ft.
Lupton' s water supply and the Bull Ditch . The
combination of Ft. Lupton ' s water supply with the
nitrate laden water being discharged into the Bull
Ditch and the sewage treatment facility will cause
irreparable harm to the City of Ft. Lupton.
41 . Weisner 's Subdivision Preservation Association
consists of the inhabitants of Weisner Subdivi-
sion. Weisner Subdivision is located a short
distance from the proposed sewage treatment
facility. The members of the Weisner Subdivision
Preservation Association will be irreparably
harmed in the following fashion by the construction
of the proposed sewage treatment facility :
a) The wells of the inhabitants of Weisner
Subdivision will become contaminated by
sewage from the sewage treatment facility.
b) The Aquifer which supplies the members of the
Association 's wells , will be damaged by the
sewage treatment facility which is to be
constructed on the replenishment area of the
aquifer.
c) The members of the Association will be sub-
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jected to a foul odor from the sewage treat-
ment facility .
d) The members of the Association will suffer
aesthetically from being forced to live in
close proximity to this 55 foot high re-
taining wall constructed as part of the
facility.
e) The property value of the members of the
Association will drop drastically.
f) The members of the Association will be
plagued by mosquitoes and other noxious
insects as a result of proximity to the
facility.
g) The members of the Association will be sub-
ject to severe health problems as a result of
the use of treated sewage to irrigate the
farms that surround their homes .
h) The proposed sewage treatment facility will
be constructed on, or in close proximity to a
fault. This will endanger the health and
safety of the members of the Association.
42 . Plaintiff, Weld County, is charged by statute with
the maintenance of the health and welfare of the
citizens of Weld County, Colorado , living in
unincorporated areas of Weld County. Inhabitants
living in unincorporated areas of Weld County will
be irreparably harmed in the following fashion by
the construction of the proposed sewage treatment
facility:
a) The inhabitants of the unincorporated areas
of Weld County will become contaminated by
sewage from the sewage treatment facility .
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b) The Aquifer which supplies the inhabitants of
the unincorporated areas of Weld County will
be damaged by the sewage treatment facility
which is to be constructed on the replenish-
ment area of the Aquifer.
c) The inhabitants of the unincorporated areas
of Weld County will be subjected to a foul
odor from the sewage treatment facility.
d) The inhabitants of the unincorporated areas
of Weld County will be subjected to a foul
odor from the sewage treatment facility.
e) The property value of the inhabitants of the
unincorporated areas of Weld County will drop
drastically.
f) The inhabitants of the unincorporated areas
of Weld County will be plagued by mosquitoes
and other noxious insects as a result of
proximity to the facility.
g) The inhabitants of the unincorporated areas
of Weld County will be subject to severe
health problems as a result of the use of
treated sewage to irrigate 'the farms that
surround their homes .
h) The proposed sewage treatment facility will
be constructed on, or in close proximity to,
a fault. This will endanger the health and
safety of the inhabitants of the unincorpor-
ated areas of Weld County.
i) The water supply of unincorporated areas of
Weld County will be endangered by the construc-
tion of said sewage treatment facility.
43. None of the Plaintiffs to this action have an
adequate remedy at law.
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WHEREFORE, YOUR PLAINTIFFS PRAY AS FOLLOWS :
1. For a judgment declaring that prior to construc-
tion of a sewage treatment facility by Defendant
City of Northglenn within the boundaries of the
County of Weld, State of Colorado, Defendant City
of Northglenn must obtain a Special Use Permit
from the Board of County Commissioners of Weld
County.
2 . For a judgment declaring that the Defendant City
of Northglenn has not yet obtained valid permis-
sion from the County of Weld to construct a sewage
treatment facility within the boundaries of Weld
County.
3. For a judgment declaring that the Defendant City
of Northglenn is estopped from asserting the
invalidity of the action of the Board of County
Commissioners of Weld County in denying the
application for a Special Use Permit for a sewage
treatment facility, located on the real estate
described in paragraph 7 of this Complaint, for
failure to file a Rule 106 (a) (4) , C.R.C.P, action
within the requisite thirty (30) days .
4 . For a judgment declaring that any action taken by
Defendant City of Northglenn purporting to over-
rule the decision of the Board of County Commis-
sioners of Weld County in denying the Special Use
Permit for the sewage treatment facility located
on the real estate described in paragraph 7 of
this Complaint is null and void and that such
action by Defendant City of Northglenn does not
constitute an overruling of the decision of the
Board of County Commissioners of Weld County.
5 . For a Preliminary Injunction enjoining Defendant
City of Northglenn, their servants , agents and
employees from the construction of a sewage treat-
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ment facility on the real estate described in
paragraph 7 of this Complaint pending final
hearing and judgment in this action.
6 . On final hearing, for an Order permanently en-
joining Defendant City of Northglenn, their agents ,
their servants and employees from constructing and
operating a sewage treatment facility on the real
estate described in paragraph 7 of this Complaint.
7 . For an Order directing the Defendant to appear, on
a date certain to be fixed by the Court, and then
and there show cause, if any, said Defendant has
why Preliminary Injunction should not be issued
restraining the Defendant, its agents , servants
and employees from the construction of a sewage
treatment facility located on the real estate
described in paragraph 7 of this Complaint pending
the final judgment in this action.
8 . For any such additional relief as may seem just ,
proper and equitable to the Court.
ADDRESS OF PLAINTIFFS : WELD COUNTY ATTORNEY
The Board of County Commis-
sioners
of Weld County, Colo- By
rado E D. MO RISON #8067
915 10th Street Assistant Weld County Attorney
Greeley, Colorado 80631 915 10th Street
Greeley, Colorado 80631
The Town of Frederick, Colorado (303) 356-4000 ext. 369
City Hall
Frederick, Colorado 80530
ATTORNEY FOR PLAINTIFFS, THE
The City of Ft. Lupton, TOWN OF FREDERICK, COLORADO;
Colorado THE CITY OF FT. LUPTON, COLO-
City Hall RADO; THE WEISNER SUBDIVISION
Ft. Lupton, Colorado 80621 PRESERVATION ASSOCIATION
The Weisner Subdivision
Preservation Association
Route 2 Box 16480 BY:
Brighton, Colorado 80601 FRANCIS K. CULKIN #2969
720 South Colorado Blvd .
Denver, Colorado 80222
( 303) 759-3495
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County of Weld
ss. VERIFICATION
State of Colorado )
I, the undersigned, Chairman of the Board of County Commis-
sioners of the County of Weld, Plaintiff herein, being sworn
states : That the facts set forth in the foregoing COMPLAINT are
true to the best of my knowledge, information and belief .
Norman Carlson
Chairman of the Board of County
Commissioners
of
Subscribed and sworn to before me this 62 day of June, 1979 .
WITNESS my hand and official seal .
My commission expires: o / -) / ti , A
L -
Notary Public a
County of Adams )
ss . VERIFICATION
State of Colorado )
I, the undersigned, President of the Weisner Subdivision
Preservation Association, Plaintiff herein, being sworn states :
That the facts set forth in the foregoing COMPLAINT are true to
the best of my knowledge, information and belief.
oe 24
�ard 'L.Quiblan, President
Weisner Subdivision Preservation
Association
/9,79
�r ,J
7t,z,
,
My Gpmmasion expires November 15, 1980 /L,
- e.et-el2
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.
CERTIFICATE OF MAILING
The undersigned hereby certifies that a true and correct
copy of the foregoing Complaint for Declaratory and Injunctive
Relief was placed in the U.S . mail , postage prepaid to :
Alan E. Schwartz
Musick, Williamson, Schwartz ,
Leavenworth & Cope, P.C .
Attorney at Law
75 Manhattan Drive - Suite 1
P. 0. Box 4579
Boulder, Colorado 80306
Dated this 2,%;` lLday of June, 1979 .
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Sandy Shi1�
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