HomeMy WebLinkAbout20052432.tiff DISTRICT COURT, WELD COUNTY, COLORADO
Court Address: 901 9th Avenue, P.O. Box 2038
Greeley, Colorado 80632
Telephone: (970) 351-7300
KAUFFMAN LAND AND DEVELOPMENT,LLC, a
Colorado limited liability company and wholly owned
subsidiary of K.P. KAUFFMAN COMPANY,INC., a
California corporation,
Plaintiffs,
A COURT USE ONLY A
v.
WELD COUNTY BOARD OF ADJUSTMENT, Case No. 05 CV
Weld County, Colorado,
Defendant.
Attorney for Plaintiffs:
Kim Robert Houtchens, #6379 Div.
Brandon B. Houtchens, #31991
HOUTCHENS, HOUTCHENS & GREENFIELD, LLC
822 7th Street, Suite 270
Greeley, CO 80631
Telephone: (970) 353-9195
Facsimile: (970) 353-0151
Denver Metro: (303) 571-0052
E-mail: kim@houtchens.com
COMPLAINT (C.R.C.P. 106(a)(4))
COME NOW, Plaintiffs above named, by and through their attorneys, HOUTCHENS,
HOUTCHENS & GREENFIELD, LLC, by Kim Robert Houtchens, Esq., who complain as
follows:
GENERAL ALLEGATIONS
1. Plaintiff, Kauffman Land and Development, LLC ("KL&D") is a wholly owned
subsidiary of Plaintiff K.P. Kauffman Company, Inc. ("KPK"). KL&D is a Colorado limited
liability company in good standing, and KPK is a California corporation in good standing doing
business in Colorado. Plaintiffs' principal place of businesses is 1675 Broadway, Suite 2800,
Denver, Colorado.
2. KL&D owns an approximately 5 acre parcel of real property located in an
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2005-2432
unincorporated area of Weld County and described as follows: Lot A of Recorded Exemption
No. 1311-09-4-RE1921, recorded October 3, 1996 in Book 1570 as Reception No. 2513889,
being part of the Southeast 1/4 of Section 9, Township 2 North, Range 67 West of the 6th P.M.,
County of Weld, State of Colorado, also known by street and number as 10137 WCR 19, Fort
Lupton, Colorado 80621.
3. Weld County, Colorado is a Colorado county, and is a political subdivision of the
state of Colorado, organized and existing under and pursuant to the laws of the state of Colorado.
4. The Weld County Department of Planning Services is a department of Weld
County, Colorado and is vested with authority over certain zoning matters in Weld County
pursuant to applicable Weld County zoning ordinances.
5. Defendant Weld County Board of Adjustment is also a separate entity of Weld
County, Colorado and it is vested with authority over certain zoning matters in Weld County,
including hearing appeals from zoning decisions made by the staff of the Weld County
Department of Planning Services.
6. Zoning for Plaintiffs' property is pursuant to a Second Amended Special Review
Permit#894 ("2"dAmUSR-894") duly and properly approved by the Board of County
Commissioners of Weld County, Colorado on September 10, 1997. A copy thereof is attached as
Exhibit A and is incorporated herein by reference.
7. Land uses for Plaintiffs' property are pursuant to the 2"dAmUSR-894, generally
described as an "oil and gas support and service operation."
8. KPK owns and operates approximately 1,000 oil and gas wells in Colorado,
approximately 750 of which are located between Denver and Greeley. At the property in
question KPK has an oil and gas support and service operation. The structures on the property
are comprised of an office building, a contractor's shop for vehicle and equipment maintenance,
an additional shop building, a septic system, and gas storage tanks that store gasoline used by
company vehicles.
9. KPK is seeking to use a helicopter to aid it in the closer management of its
scattered oil and gas production, transmission, and storage facilities. Additionally, KPK seeks to
utilize a helicopter in conjunction with a new laser to check gas pipelines in and around Weld
County for oil and gas leaks in its pipelines.
10. To facilitate use of a helicopter for the aforementioned purposes, KPK seeks to
place a permanent helipad on its property.
11. On December 6, 2004 Plaintiffs' undersigned attorney wrote the Weld County
Department of Planning Services regarding Plaintiffs' desire to place a permanent helipad on the
property. Plaintiffs provided facts and documents to show that the placement of a helipad on the
property would not constitute a major change to the existing approved uses for the property
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under the 2"dAmUSR-894 requiring any formal amendment thereto. Plaintiffs requested that
their letter and attached documents be placed in the file regarding Plaintiffs USR. A copy of the
December 6, 2004 letter and attachments is attached as Exhibit B and incorporated herein by
reference.
12. In subsequent written communications issued by the Weld County Department of
Planning Services, Plaintiffs were advised that planning staff took the position that Plaintiffs'
request to utilize a permanent helipad on the subject property did not comply with the existing
approved uses for the property, and Plaintiffs were advised that in order to utilize the property
for a permanent helipad Plaintiffs would be required to secure an amendment to the existing
2"dAmUSR-894.
13. The Weld County Department of Planning Services advised Plaintiffs that their
decision was based upon their interpretation of the Weld County Code, and specifically sections
23-2-200.C and 23-2-280 thereof.
14. Pursuant to the applicable provisions of Chapter 23 of the Weld County Code,
Plaintiffs appealed the decision of the planning staff to the Weld County Board of Adjustment.
A copy of the appeal letter from Plaintiffs' attorney to the Weld County Board of Adjustment
dated February 14, 2005, and the attachments to that letter, are attached as Exhibit C and
incorporated herein by reference.
15. A hearing on Plaintiffs' appeal was initially set before Defendant on April 14,
2005. The appeal was not heard at that time and was continued to April 28, 2005 at which time
the hearing on Plaintiffs' appeal took place.
16. At the conclusion of the presentation of testimony and evidence on April 28,
2005, a duly made and seconded motion to grant Plaintiffs' administrative appeal failed by a 4
no to 3 yes vote.
17. Plaintiffs now appeal the decision of Defendant at the April 28, 2005 hearing
pursuant to C.R.C.P. 106(a)(4).
18. Venue of this action is appropriate under C.R.C.P. 98(a).
First Claim for Relief
(Certiorari Review Pursuant to Rule 106(a)(4))
19. Plaintiffs incorporate by reference the allegations in paragraphs 1 through 18
above.
20. Defendant has the power to hear and decide appeals from decisions concerning
zoning issues made by any official employed by the Board of County Commissioners of Weld
County, Colorado in the administration or enforcement of the Weld County Code, Chapter 23.
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21. When there is an appeal of an administrative decision, Defendant may, so long as
such action is in conformance with the terms of Chapter 23 of the Weld County Code reverse,
affirm, or modify the order, decision or determination appealed from.
22. In considering Plaintiffs' appeal of the decision of planning staff of the Weld
County Department of Planning Services to require Plaintiffs to seek and amendment to the
2"dAmUSR-894 for zoning approval of Plaintiffs' placement of a permanent helipad on the
property in question, Defendant acts in a quasi-judicial manner in accepting evidence, hearing
testimony and arguments, reviewing exhibits, making findings and conclusions, etc.
23. Defendant acted arbitrarily, capriciously, exceeded its jurisdiction, or abused its
discretion by improperly and unreasonably applying pertinent statutory provisions and applicable
Weld County zoning ordinances in denying Plaintiffs' proposed use of its land. Such improper
actions include, but are not limited to:
a. Defendant misconstrued and misapplied statutes and zoning ordinances
applicable to Plaintiffs' appeal. This included Defendant misconstruing and misapplying C.R.S.
§25-12-103, and specifically subsection (4)thereof which states "This article is not intended to
apply to the operation of aircraft or to other activities which are subject to federal law with
respect to noise control."
b. Defendant ignored the uncontroverted evidence produced at the hearing by
Plaintiffs which established that the helipad now located on the property was properly placed and
conformed in all respects with the rules and regulations of the Federal Aviation Administration,
which rules and regulations preempt and supercede Weld County zoning ordinances, including
the Weld County noise ordinance.
c. Defendant allowed and considered inadmissible and improper evidence
which was highly inflammatory and prejudicial to Plaintiffs, and which had no relevance to the
limited issue to be decided at the April 28, 2005 hearing. Such evidence included incompetent
and irrelevant evidence purporting to show the noise levels emitted by helicopters landing on the
temporary helipad located on Plaintiffs' property, and testimony and evidence produced by
witnesses Don Jones and Ed Pruss, including a videotape produced by Mr. Pruss which depicts a
number of persons giving statements regarding their fears pertaining to the effects of a helicopter
on horses they intended to ride on property located to the west of Plaintiffs' property.
d. There was no competent evidence produced at the April 28, 2005 hearing
to support Defendant's denial of Plaintiffs' appeal.
e. Plaintiffs reserve the right to assert additional specific arguments and
bases for the within appeal after the preparation of and certification to this Court of the record of
the proceedings which occurred at the April 28, 2005 hearing.
24. In the event Defendant's failure to grant Plaintiffs' appeal of the decision of
planning staff of the Weld County Department of Planning Services is not overturned by this
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Court, Plaintiffs' property rights and other valuable interests will be irreparably damaged
25. Plaintiffs have no other plain, speedy, and adequate remedy outside of these
proceedings.
26. Plaintiffs are entitled to relief in the nature of certiorari pursuant to C.R.C.P.
106(a)(4) reversing Defendant's failure to grant Plaintiffs' administrative appeal of the decision
of planning staff of the Weld County Department of Planning Services at its April 28, 2005
meeting.
WHEREFORE, Plaintiffs respectfully request that:
A. Defendant be ordered to certify to the Court a transcript of all proceedings had
before Defendant upon consideration of Plaintiffs' appeal of the decision of planning staff of the
Weld County Department of Planning Services on April 28, 2005, together with all documents,
exhibits, or other writings filed with, reported to, or prepared by or considered by Defendant or
any of its agents or employees with respect to this matter, specifically including but not limited
to: all communications, including any summaries, prepared by planning staff and submitted to
Defendant on April 28, 2005 or at any prior time; the minutes of Defendant's April 14 and April
28, 2005 meetings and all documents, exhibits or other writings considered by Defendant at
those meetings; and, the notebook of materials assembled by planning staff and given to
Defendant for its April 14 and 28, 2005 meetings;
B. The Court review the proceedings before Defendant with respect to this matter,
and enter an order and judgment directing Defendant to grant Plaintiffs administrative appeal and
order that Plaintiffs' placement of a permanent helipad on the property in question does not
constitute a major change to the existing approved uses for the property pursuant to Weld County
Ordinance 23-2-280, and therefore zoning for the helipad is proper and no amendment by
Plaintiffs to the existing 2"dAmUSR-894 is necessary or required;
C. And, that the Court enter all such other and further orders as are appropriate
herein, and grant Plaintiffs all further relief as may appear proper to this Court.
DATED: May I , 2005.
HOUTCHENS, HOUTCHENS & GREENFIELD, LLC
By /kin 4a4
Kim Robert Houtchens, #6379
Brandon B. Houtchens, #31991
Attorneys for Plaintiffs
Plaintiffs' Address:
1675 Broadway, Suite 2800
Denver, Colorado 80202-4628
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