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AN191984
DISTRICT COURT, WELD COUNTY, COLORADO ', S � m —
Case No. 83-CV-908 Division II GRFFI FY, COLO. r
SUMMONS
THE TOWN OF MILLIKEN,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS,
Defendant.
THE PEOPLE OF THE STATE OF COLORADO TO THE DEFENDANT(S) NAMED
ABOVE:
You are summoned and required to file with the clerk of this court an answer
or other defense to the attached conplaint within twenty (20) days after this
summons is served on you in the State of Colorado, or within thirty (30) days
after this summons is served on you outside the State of colorado, or by pub-
lication.
If you fail to file your answer or other defense to the complaint in writing, as
required by Colorado Rules of Civil Procedure, within the applicable time period,
judgment by default may be entered against you by the court for the relief de-
manded in the complaint, without any further notice to you.
The following documents are also served with this summons:
AMF,N-DED VERIFIED COMPLAINT PURSUANT TO RULE 106 & 65 COLORADO
RULES OF CIVIL PROCEDURE/& MOT.O V FOR TRMPOR[ RY ESTRAINING
DAR A D PRFg MIJ3? LYIJUNOTION ANT T0_ U RC5 _ RCP
Race _ n /� } JJ Ic✓. l 4 /T/T l `ti��
E. Shapiro #11519
DONNA J. POWELL Attor ey for Plaintiff
CLERK OF THE DISTRICT COURT 822 inth Street, Suite B �'
Gre ey, Colorado 80631
Telephone: 356-4751
By:
Deputy
(seal)
This summons is issued pursuant to Rule 4, CRCP, as amended. A copy of the
complaint must be served with this summons. If served by publication, summons
shall briefly state sum of money or other relief demanded.
840685
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C4-if ii i l/ S I6/
DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO
Case NO. 83-CV-908
ORDER
THE TOWN OF MILLIKEN,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS,
Defendant.
THIS MATTER coming on to be heard on Plaintiffs' Verified Amended
Complaint which Complaint contains an application for an order to show cause,
and the Court having read said Complaint, and now being fully advised in the
premises finds that an order and citation as prayed for should be made and
issued:
WHEREFORE IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. That the Clerk of the Court issue a citation commanding the Defendants
The Board of County Commissioners of the County of Weld to certify fully to
this Court on or before the 1st day of February , 1984 , at the
hour of 8: n0 o'clock, A.M. , a full and complete transcript of any and
all records, exhibits, matters and proceedings of the Board of County Com-
missioners of the County of Weld relating to the decision of said Board
adopted December 12, 1983, and the hearing of the said Board which was held
on December 12, 1983, and the hearing held on November 16, 1983.
2. That the citation issued by the Clerk require Defendants The Board
of County Commissioners of the County of Weld, to show cause on or before
the aforesaid date why the decision, orders, and directions of the Board related
to that part of its decision approving the issuance of a special use review per-
mit to the Defendant, Arvin Martenson, aka E-Vap Park, set forth in its de-
cision adopted December 12, 1983 should not be reversed and held to be of
no force and effect.
DATED AND DONE this 28thday of December, 1983.
BY THE COU(RiT:�
414/(,/
' ' y y /
Oi J. Al {iAff
v. trictirt Judge
DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO
Case No. 83-CV-908
AMENDED VERIFIED COMPLAINT
PURSUANT TO RULE 106 & 65
COLORADO RULES OF CIVIL PROCEDURE
THE TOWN OF MILLIKEN,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS,
Defendant.
COMES NOW the Plaintiff by and through its attorney, Laura E. Shapiro and
states as its claim against Defendant as follows:
1. On November 16, 1983, after a lengthy hearing the Board
of County Commissioners for Weld County denied Arwin Martensen
aka E-Vap Park a Use By Special Review Permit and a Certificate
of Designation for construction and operation of a brine pond. Said
brine pond, operated pursuant to Colorado Revised Statutes 1973,
30-20-101 et seq., receives solid waste from oil and gas production.
2. The Board of County Commissioners of Weld denied said permit
and certificate based upon:
a. That the uses which would be permitted will not
be compatible with the existing surrounding land uses;
and
b. That there is not adequate provision for the protection
of the health, safety and welfare of the inhabitants of the
neighborhood and the County.
[See EXHIBIT A attached hereto]
3. On or about November 22, 1983, Kenneth Lind, attorney for the ap-
plicant, requested that the Board reconsider the initial denial based
upon new evidence. The new evidence, as stated in EXHIBIT B, con-
sisted of the planting of trees and the limitation to a 15 year permit
instead of a 20 year permit. Said request for reconsideration was
made pursuant to Roberts Rules of Order. [See EXHIBIT B attached]
4. On December 5, 1983 the Town of Milliken received notice that
the Board of County Commissioners had resolved to reconsider its
decision based on new evidence. That reconsideration occurred at
a meeting held on December 12, 1983.
5. At said meeting evidence was considered which was beyond the
four corners of the request for reconsideration. However, the new
evidence, to overcome concerns regarding incompatable land use and
health and safety hazards, consisted of:
a. A row of fast growing deciduous trees and a row of slower
growing coniferous trees.
b. An agreement to accept a 15 year permit rather than the
originally requested 20 year permit.
c. Aeration to alleviate odor problems.
6. The Board of County Commissioners then approved the Use by
Special Review Permit and granted the Certificate of Designation.
7. Plaintiff believes that the evidence presented did not warrant
reversal in that said reconsideration is limited to the issue of whether
or not the new evidence is sufficient to overcome the grounds for the
original denial.
FIRST CLAIM
8. Plaintiff reincorporates and realleges paragraphs 1 - 7 as though
fully set forth herein.
9. In that such evidence is insufficient and blatantly inadequate to
meet the applicant's burden , the Weld County Board of Commissioners
abused its discretion in granting the permit to the applicant.
SECOND CLAIM
10. Plaintiff reincorporates and realleges paragraphs 1 - 9 as though
fully set forth herein.
11. In considering evidence beyond the four corners of the
request for consideration, the Board of County Commissioners
abused its discretion and exceeded its jurisdiction.
WHEREFORE, Plaintiff prays that this Court enter judgment for Plaintiff;
an order to show cause to the Board of County Commissioners to answer as to
-2-
•
why the relief requested herein shall not be allowed, and such further
relief as this Court may deem appropriate.
RESPECTFULLY SUBMI TED,
Laur . Shapiro #1151
At rney for Plaintiff
82 Ninth Street, Suite B
Greeley, Colorado 80631
Telephone: 356-4751
VERIFICATION
STATE OF COLORADO )
SS.
COUNTY OF WELD )
The Town Manager for Plaintiff, Gayle Packard-Seeburger, being first duly
sworn upon oath, deposes and says that she has read the foregoing Amended
Verified Complaint Pursuant to Rule 106 and 65 of the Colorado Rules of Civil
Procedure and knows the contents are true ID e e.
Ga a Packwr-Seeburger
Town Manager for Plaintiff
SUBSCRIBED AND SWORN TO before me this 20th day of December, 1983,
by Gayle Packer-Seeburger, Town Mrager for Plaintiff.
Notary Public
822 Ninth Street, Suite B
Greeley, Colorado 80631
My Commission Expires July 6,1997
-3-
CERTIFICATE OF MAILING
I hereby certify that I placed copies of the foregoing AMENDED VERIFIED
COMPLAINT PURSUANT TO RULE 106 AND 65 OF THE COLORADO RULES
OF CIVIL PROCEDURE in the United States Mail this 21st day of December,
1983, addressed to the following:
Mr. Kenneth Lind
Lind and Ottenhoff
Attorneys at Law
1011 11th Avenue
Greeley, Colorado 80631
Mr. Russ Anson
Assistant County Attorney
P.O. Box 1948
Greeley, Colorado 80632
4O/A 127 .
DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO
Case No. 83-CV-908
MOTION FOR TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
PURSUANT TO RULE 65
COLORADO RULES OF CIVIL PROCEDURE
THE TOWN OF MILLIKEN,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, ARVIN MARTENSEN, aka E-Vap Park,
Defendant.
COMES NOW the Plaintiff by and through its attorney, Laura E.
Shapiro, and moves this Court for a Temporary Restraining Order and Pre-
liminary Injunction pursuant to Rule 65 of the Colorado Rules of Civil
Procedure, restraining and enjoining the Defendant, his agents, servants ,
employees and all those persons under his direction or authority or in
active concert or participation with him from commencing construction of
the waste disposal site approved on December 12, 1983 by the Board of
County Commissioners of the County of Weld.
Plaintiff prays for a Temporary Restraining Order on the grounds
that immediate and irreparable loss and harm will result to Plaintiff
before a hearing can be had on either his Motion for a Preliminary In-
junction or the merits of its complaint, if the Defendant is permitted to
proceed.
AS GROUNDS THEREFORE, the Plaintiff states as follows:
1. Plaintiff is filing along with the motion
herein a complaint, pursuant to Rule 106 of the
Colorado Rules of Civil Procedure, to review the
action of the Board of County Commissioners for
the County of Weld, taken December 12, 1983. In
their action, a use by Special Review Permit and
a Certificate of Designation was issued to Arvin
Martensen enabling him to construct an oil and gas
LAURA E. EHAPIRO
ATTORNEY AT LAW
1403 10TH AVE.,SUITE II
D REELEY. COLORADO 50531
production dump site (brine pond) 1.25 miles from
the town of Milliken.
2. Originally on November 16, 1983, Martensen's
application was denied based upon the County Com-
missioner' s finding that:
a. That the uses which would be per-
mitted would not be compatible with the
existing surrounding land uses; and
b. That there was inadequate provision for
the protection of the health, safety and
welfare of the inhabitants of the neigh-
borhood and the County.
3. On December 5, 1983, Milliken received notice from
the Weld County Board of County Commissioners that a
resolution had been passed to reconsider new evidence
submitted by Arvin Martensen and notifying the Town
that a hearing would be held to determine whether
or not this new evidence warranted a reversal of their
prior denial . A hearing was held on December 12, 1983,
wherein the Board of County Commissioners held that the
evidence warranted reversal of the original denial . Al-
though the Town of Milliken had retained counsel on
December 7, 1983, it was not prepared to present expert
testimony at the December 12, 1983, hearing based upon
the following:
a. One week' s notice was inadequate to contact
and retain experts.
b. The Town did not know what new evidence was
to be presented.
4. The new evidence presented at the hearing was that:
a. Coniferous and deciduous trees would be
planted to provide a visual shield.
b. The special permit would be reviewed in 15
years instead of 20 years.
[See EXHIBIT B attached hereto]
5. At the meeting Mr. Martensen also indicated that
an aeration system would be provided. That was not pre-
sented as evidence in Mr. Lind 's reconsideration.
LAURA E. SHAPIRO -2-
ATTORNEY AT LAW
1403 10TH AVE..SUITE S
OREELEY. COLORADO OJI
6. The Town believes that if a Temporary Restraining
Order is not issued to prevent Arvin Martensen from
commencing his dump project it will suffer immediate
and irreparable injury as set forth below and more
fully through testimony.
7. The Town has plans to develop the area in question.
The Town' s growth plans for residential development will
be condemmed if the proposed dump site is constructed.
8. The Plaintiff believes that there is a strong liklihood
of success on the merits in that Plaintiff believes the
Board of County Commissioners abused its discretion in
reversing its original denial . It abused its discretion
in that:
a. Two rows of trees do not conform the dump
site to existing and future land use.
b, A 15 year review date does not help to con-
form the dump site to future land uses.
c. After the November 16, 1983 denial the Town
of Milliken commenced annexation proceedings to
provide for future development.
d. Once the dump site is permitted, land values
will diminish thus opening the door for uses which
would permanently damage Milliken's plans for any
future development.
9. The threatened injury to Milliken outweighs what-
ever damage the proposed injunction may cause the op-
posing party. If the Court does not issue a Temporary
Restraining Order and Preliminary Injunction, Plaintiff
risks permanent damage. The harm to Defendant, in main-
taining the status quo until the Rule 106 Complaint is
adjudicated is minimal in that if Plaintiff succeeds ,
Defednant will not suffer the economic loss involved
in starting a project and having to abandon it. De-
fendant would also limit his liability to the Town if
the Town were to succeed on the merits.
10. Issuance of a Temporary Restraining Order and Pre-
liminary Injunction would serve the public interest.
The public has a right to expect that the environment
will be protected pending the outcome of litigation
which directly affects it.
LAURA E. SHAPIRO -3-
ATTORNEY AT LAW
1403 1OTN AVE.,EOITE E
GREELEY.COLORADO •0031
•
WHEREFORE for the reasons set forth above and in the accompanying
Exhibits and Pleadings , Plaintiff prays that this Court enter an Order as
follows:
1. As and for a Temporary Restraining Order, Restraining
Defendant from utilizing the Use by Special Review Permit
and Certificate of Designation and restraining construction
of the dump site.
2. As and for a Preliminary Injunction, permanently en-
joining construction of the brine disposal site.
RESPECTFULLY SUBMITTED,
Laura E. Shapiro #11519
Attorney for Plaintiff
1403 10th Avenue, Suite 2
Greeley, Colorado 80631
Telephone: 356-4751
-4-
LAURA E. SHAPIRO
ATTORNEY AT LAW
'a 1OTN AVG.SMITE 2
GREELEY.COLORADO 50521
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