HomeMy WebLinkAbout920975.tiff RESOLUTION
RE: ACTION OF BOARD CONCERNING APPEAL OF HEALTH BOARD DECISION - JOHN
UNDERHILL
WHEREAS, the Board of County Commissioners of Weld County, Colorado,
pursuant to Colorado statute and the Weld County Home Rule Charter, is vested
with the authority of administering the affairs of Weld County, Colorado, and
WHEREAS, on August 25, 1992, the Weld County Board of Health held a hearing
concerning a Nuisance Abatement for stockpiling chicken manure, property owner
being John Underhill, and
WHEREAS, said hearing was continued to September 1, 1992, at which time the
Board of Health decided to order the implementation of the Manure Handling Plan
to prevent the recurrence of nuisance conditions, and
WHEREAS, said property is described as follows:
All portions of Sections 16 and 17, Township 1 North,
Range 67 West of the 6th P.M. , Weld County, Colorado
WHEREAS, Mr. Underhill filed an appeal concerning said decision to the
Board of County Commissioners, with the appeal being heard on October 7, 1992,
and
WHEREAS, after hearing the testimony presented at said hearing, a motion
was made, seconded, and carried unanimously to accept the findings of the Weld
County Board of Health, but to amend the Manure Handling Plan.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that the Manure Handling Plan, relative to the appeal of John
Underhill to the Board of Health decision regarding a Nuisance Abatement for
stockpiling chicken manure, be, and hereby is, amended.
BE IT FURTHER RESOLVED by the Board that the following conditions of the
Amended Manure Handling Plan be, and hereby are, ordered to be met:
1. No manure, of any type, is allowed to be brought on the property
until the present supply is gone, and until the Weld County Board of
County Commissioners aproves of the same.
2. All practices of future dispersal are to be reviewed by the Weld
County Department of Health's staff and the Weld County Board of
County Commissioners.
3. Fly control is required at the stockpiles of manure, including, but
not limited to, use of larvacide.
4. If old manure is applied to the pasture, it is to be harrowed and
irrigated after application of manure.
5. The stockpile of manure closest to the neighbor is to be removed
first.
920975
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RE: APPEAL BOARD OF HEALTH DECISION - UNDERHILL
PAGE 2
The above and foregoing Resolution was, on motion duly made and seconded,
adopted by the following vote on the 7th day of October, A.D. , 1992 .
(� / ' i tY ' / e BOARD OF COUNTY COMMISSIONERS
ATTEST: ? w WELD COUNTY, COLORADO
%
Weld County Clerk to the Board
e rge Ke edy, Oman
BY: �1Y ,C A /771”--7- EXCUSED
Deputy Clerk to the Board-,_ \ Constance
/�L. Harbert, Pro--Tem
/APPROVED AS TO FORM: /j X-
C. W. Ki by
County Attorney a
W. H. eb ter
920975
HEARING CERTIFICATION
DOCKET NO. 92-58
RE: APPEAL OF WELD COUNTY BOARD OF HEALTH DECISION ON NUISANCE ABATEMENT
FOR STOCKPILING CHICKEN MANURE - JOHN UNDERHILL
A public hearing was conducted on October 7, 1992, at 10:00 A.M. , with the
following present:
Commissioner George Kennedy, Chairman
Commissioner Constance L. Harbert, Pro-Tem - Excused
Commissioner C. W. Kirby
Commissioner Gordon E. Lacy
Commissioner W. H. Webster
Also present:.
Acting Clerk to the Board, Shelly Miller
Assistant County Attorney, Lee Morrison
Health Department representative, John Pickle
The following business was transacted:
I hereby certify that pursuant to a notice dated September 23, 1992, and
duly published September 24, 1992, in the Windsor Beacon, a public hearing
was conducted to consider the appeal of John Underhill of the Weld county
Board of Health's decision on September 1, 1992, concerning the Nuisance
Abatement for stockpiling chicken manure. Lee Morrison, Assistant County
Attorney, made this a matter of record. He explained that pursuant to
Ordinance #56 and the Administrative Manual, nuisance actions are heard by
the Board of Health, and then may be appealed to the Board. Mr. Morrison
noted the Board of Health issued a Cease and Desist Order on September 15,
which this Board may dismiss, modify, or stay. He explained the
proceedings of the hearing. John Pickle and Jeff Stoll, Health Department
representatives, said there were numerous complaints received in June from
residents. Mr. Stoll read the violation background information and the
manure handling plan, which is incorporated into the Cease and Desist
Order, into the record. After discussion, Commissioner Lacy said he has
concerns with the manure not being incorporated into the soil or covered;
the amount of dead chickens being brought into Weld County; and what the
testing entails. (Changed to Tape #92-30. ) In response to a question from
Commissioner Webster, Commissioner Lacy said it is not standard practice
to dump dead chickens into the manure, which cannot be controlled since
the manure is coming from Boulder County; however, they can be stopped
from coming into Weld County. He said they are most likely incinerated at
facilities such as Morning Fresh Farms. Mr. Pickle explained the testing
procedure acceptable for most small dairy farms. Mr. Morrison said the
Feedlot Containment Regulations do not address the party off-site using
the product. John Underhill was present and stated there are 500 acres on
which manure is applied. He said there was only one delivery with
chickens in it, which was reported to Boulder Poultry and spread within
one or two days. He said all deliveries received since June have been
incorporated within a week. Mr. Underhill spread the stockpile closest to
a neighbor after his third hay cutting. There are two remaining
stockpiles, which are crusted over, that will last for two or three years.
He questioned whether there were any odor readings taken which violated
regulations, and he said there is very little odor three to five days
after delivery. Mr. Underhill said most of his land is in grass, with
some alfalfa, on which he will continue to use the manure which is
stockpiled. Any new manure will be incorporated immediately. He said
this is free fertilizer, which enhances his crops, and most will be spread
before spring. Chairman Kennedy questioned the incident with the dead
chickens on July 13. Mr. Underhill said the delivery was disced in within
two or three days. Mr. Stoll said at the follow-up visit. on July 23,
there were still dead chickens on site. They were no longer bloated and
were spread on the fields. Mr. Underhill said the last load was delivered
920975
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RE: HEARING CERTIFICATION - UNDERHILL
PAGE 2
on July 7, 1992. Mr. Underhill said the entire farm can be flood
irrigated. There are 10 acres of primary alfalfa, with the remaining
being mostly grass. He said there are fewer flies after the third day of
application. In response to questions from Mr. Morrison and Commissioner
Webster, Mr. Underhill confirmed all new material will be spread
immediately, and the stockpiling occurred because the fields are not
always ready for spreading. Commissioner Lacy confirmed that the time
when the chicken houses are cleaned may not be the same time needed for
the fields. Commissioner Webster explained that feedlots store the manure
on site until the ground is ready. Mr. Underhill said the stockpile on
Road 10 is about one mile from the nearest neighbor, with the stockpile on
Section 16 being about one-half mile. He said there is no odor right now,
and the reason he did not attend the Board of Health hearings was because
he had the problem alleviated, and he had to work hay. In response to
Chairman Kennedy's questions, Mr. Underhill reiterated that all deliveries
will be disced or harrowed in immediately, and there will be no more
stockpiling. He said the odor will be less potent when used from the
stockpiles. In response to a question from Mr. Morrison, Mr. Underhill
said all manure will be disced and plowed on the fallow ground and
harrowed on the pasture land. He confirmed all future deliveries will be
with a spreader. Jerry Ford, surrounding property owner, said this has
been an on-going problem for over a year. He submitted three letters from
Ron Pumphrey, Bill Matlock and Randy Beineke, and Canine Medina, all
surrounding property owners, which were marked as Exhibits A, B, and C,
respectively. Mr. Ford said there is no problem with the flies or odor
right now; however, at one time there were trucks delivering every two
hours, seven days a week. Mr. Ford said he would not have a problem if
the manure was plowed under, but the spreading and harrowing are still a
problem. He also noted the pile on Section 16 has been there a year.
There was discussion concerning the types of incorporation. Claude
Stevens, Kelly Auker, Ann Blackford, and Molly Scott, all surrounding
property owners, commented on the fly and odor problems. Mr. Underhill
said the flies are no longer a problem around the piles, the odor is less
than it was, and he is not getting paid for the manure. He said the piles
have been treated to control flies, and the pile closest to the
Blackford's residence has been spread. He confirmed that all new
deliveries will be spread with a manure spreader. He noted the loads came
approximately three days per week, with three loads per day; however, he
does not have control on delivery times.
Let the record reflect a recess was taken at this time.
Upon reconvening, Mr. Underhill stated there were no pits dug for the
manure, and part of the fly problem could be created from surrounding
farms. He reiterated that no new stockpiling will take place, and all
manure will be spread and plowed, with none to be put on grassland. He
estimated he has 1000 to 1500 yards of manure stockpiled, which will
probably last two years. He said there are approximately 35 to 45 acres
which are not pasture, and he may rip out another piece. He estimated ten
ton of manure can be spread to the acre, and he said he does 90Z of the
work himself. He confirmed for Commissioner Webster that no new manure
will be delivered until the stockpiles are gone. Mr. Stoll said most of
Mr. Underhill's comments he cannot confirm or deny. All inspections since
August 25 have shown minimal flies; however, there is a concern after
hauling resumes. Mr. Stoll said there were no readings taken with the
scentometer, but he did smell odors in July. In response to a question
from Commissioner Webster, Mr. Pickle said the Morning Fresh Farms does
use a spray to control flies. Mr. Stoll said that if the additional fresh
piles are deceased and the existing piles are crusted over, that will
minimize the fly problem; however, it may be necessary to spray when
spreading. Commissioner Webster said if all the manure was spread now,
that would solve the problem. Commissioner Lacy moved to amend the plan
to allow no manure, of any type, to be brought onto the property until the
920975
RE: HEARING CERTIFICATION - UNDERHILL
PAGE 3
present supply is gone; and all practices of dispersal are to be reviewed
by the Health staff and the Board of Commissioners. Commissioner Kirby
seconded and amended the motion by requiring fly control at the piles; the
pasture to be harrowed and irrigated after application of manure; and the
pile closest to the neighbor to be removed first. Commissioner Lacy
agreed to the amendment. Commissioner Kirby said the nuisance of the odor
and flies, the large quantity of manure, the length of the storage time,
and the dead poultry are unacceptable. Mr. Morrison clarified the Manure
Handling Plan on the Cease and Desist Order will be stricken, and the
motion will replace said plan. Commissioner Lacy said the Order will be
available for any interested parties. He also noted the fly problem will
be back in the spring when spreading begins, if it is not done properly
and quickly. Chairman Kennedy stated there will be no stockpile in the
future. Commissioner Lacy said the practices will be open for review by
the Health staff and the Board of Commissioners to decide what can he
done. Commissioner Webster said he would hope all stockpiles would be
gone by the fall of 1993. (Changed to Tape #92-31. ) After further
discussion, on roll-call vote, the motion carried unanimously.
This Certification was approved on the 12th day of October, 1992.
/ f //1 APPROVED:
ATTEST Jii' �� / I/ 1/:/4-4-":. BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Weld County Clerk to the Board
By: %GLS r-a-t 4,,,,e,- Ge rge Ke de y, Chairman
Deputy Clerk to the Board
EXCUSED
Constance L. Harbert, Pro-Tem
TAPE #92-29, #92-30, & #92-31
-717/e-11:ck
C. W. ' r y
DOCKET #92-58
Go . a
HL00 I
7.7 1 )... r )1 u
W. H. Webster
920975
ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 7th DAY OF October 1992:
DOCKET 11 92-48 - USR for Haberkon, William and Mary
DOCKET 0 92-56 - USR for Bernhardt, LeRoy
DOCKET 0 92-57 - USR for Wolfe, Wayne and Marianne
DOCKET 0 92-58 - Appeal from Board of Health Decision - Underhill, John
PLEASE write or print your name legibly, your address and the DOCKET U (as listed
above) or the name of the applicant of the hearing you are attending.
NAFjE' ADDRESS HEARING ATTENDING
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920375
NOTICE
Pursuant, to the CRS 25-1-613, as amended, and Weld County Ordinance #56, a public
hearing will be held in the Chambers of the Board of County Commissioners of Weld
County, Colorado, Weld County Centennial Center, 915 10th Street, First Floor,
Greeley, Colorado, at the time specified. All persons in any manner interested
in the following Appeal from the Board of Health Decision are requested to attend
and may be heard.
Should the applicant or any interested party desire the presence of a court
reporter to make a record of the proceedings, in addition to the taped record
which will be kept during the hearing, the Clerk to the Board's Office shall be
advised in writing of such action at least five days prior to the hearing. The
cost of engaging a court reporter shall be borne by the requesting party.
BE IT ALSO KNOWN that the case file of the Board of Health may be examined in the
office of the Clerk to the Board of County Commissioners, located in the Weld
County Centennial Center, 915 10th Street, Third Floor, Greeley, Colorado.
APPLICANT
DOCKET NO. 92-58 John Underhill
8206 Weld County Road 118
Brighton, Colorado 80601
DATE: October 7, 1992
TIME: 10:00 A. M.
REQUEST: Appeal from Board of Health Decision on September 1, 1992
Nuisance Abatement - Stockpiling chicken manure
LEGAL DESCRIPTION: All portions of Sections 16 and 17, Township 1 North,
Range 67 West of the 6th P.M. , Weld County, Colorado
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
BY: DONALD D. WARDEN
WELD COUNTY
CLERK TO THE BOARD
BY: Carol A. Harding, Deputy
DATED: September 23, 1992
PUBLISHED: September 24, 1992, in the Windsor Beacon
920975
I..
AFFIDAVIT OF PUBLICATION
STATE OF COLORADO
ss
COUNTY OF WELD
I, KEITH HANSEN, of said County of Weld, being duly
sworn,say that I am publisher of
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ONOS/a'121' __ WINDSOR BEACON
mein, aNI NO learn]
Olen.IM•pine hooky w
b.Ind kite Okinnts sioniewu» a newspaper havin a general circulation in said
InIJ d Oey Awa.tseIn weeklyg E>
Wen County, Cole nd.. Wad County and State, published in the town of WINDSOR,
every Dna1Wa Can,/tl 1M
Sent, nrw neer, Penry in said County and State; and that the notice, of which
�.flIIt in ti the annexed is a true copy, has been published in said
Mllentr Iona tem In led weekly for/ successive weeks, that the notice
at Haan Join re np.ed le
MSS end rrIo be heat was published in the regular and entire issue of every
Should the applicant at anynumber of the paper during the period and time of
Mewed pnb d.In Mpr..s publication, and in the newspaper proper and not in a
el.earl acorn lemkt•reed
alike pen ant In ante e tit supplement, and that the first publication of said notice
tend mend tenets all be kept was in said M Co to
P Pbearing paper a the date of the
dung M MS IS to
Bend'.Ono Ste M&weal In `/,
flea et rear=Well w lane day of �Q .I-[�
anpinnhherpm.aa p �K �t•� , A.D., 19 �1- and
engaging•°ourtmo"•r she M the last publication bearing the date of the
Mow Iota nnang ty.
BE IT ALBC KNOWN tor Mew dayof A.D., 19 and
a Ile en Earn a Near In
may
.nnn.entoelle.alto Clot a that the said WINDSOR BEACON has been published
tolocyd ated t the W.I Coon D`Id`C� continuously and uninterruptedly for the period of 5
Coniamiel
'Mid Floes iy N:COWS.Lew consecutive weeks,in said County and State, prior to the
date of first publication of said notice, and the same is a
DOCKET NO. newspaper within the meaning of an Act to regulate
APPfltANT:AM Daft Ma printing of legal notices an advertisements, approved
WW
I soles ~'�°k�• May 18, 1931,and all prior is r as in force.
DATE:Oetelor n
11ME:10aGA.M
REQUEST:Ian to..Benda P LISTER
Keen Donlan Bepen n,1,
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Bledviene
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"`e"` Subscri d and sworn to before me this •'1% day
LEGAL DE1cRW1gN:Aparka of 19 1-1
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BOARD OF COUNTY •
BNQrARY PUBLIC
COMMsllONERB, WELD r,
COUNTY,OxORADO
BY:DONALD a WARDEN,WELD
My commission expires �- ' '_!^
COUNTY.a.9n TOTNE BOARD
BY:CAl10tA.NARDWO.DEPUTY
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•
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920375
LEGAL ACTION NO: 036-92
JOHN UNDERHILL
APPEAL HEARING BEFORE THE
BOARD OF COUNTY COMMISSIONERS
VIOLATION: Colorado Revised Statute Section 25-1-613. "Removal of nuisances.
The board of health shall examine all nuisances, sources of filth, and causes of
sickness, which, in its opinion, may be injurious to the health of the
inhabitants, within its town, city or county , and it shall destroy, remove,
or prevent the same as the case may require."
LOCATION: Sections 16 & 17, T1N, R67W; WCR 8 & WCR 17
CHRONOLOGY OF EVENTS
June 23 , 1992 Received complaint concerning odors and flies .
June 25 , 1992 Inspection found thousands of flies and intense odors.
July 7, 1992 A Notice of Violation of CRS 25-1-613 was sent to Mr.
Underhil:.
July 9, 1992 Spoke with Bruce Vaughn of Boulder Valley Poultry Farms
about the problem. He said that Larvadex was being
added to the feed for the last four months.
July 10, 1992 Sent a letter requesting that Boulder Valley Poultry
stop hauling manure to Mr. Underhill.
July 13, 1992 After a phone call from Mr. Underhill indicating that
the problem was under control, an inspection found
numerous dead, bloated chickens at one site. Odors and
flies were still found to be a problem at the newer
piles.
July 14, 1992 Sent a letter informing Mr. Underhill that conditions
were still unacceptable and that the Department was
still pursuing Legal Action. He was also reminded to
spray and cover.
July 23, 1992 An inspection found flies and odors to be a problem.
Dead chickens were still lying on the ground although
they had since popped.
August 7, 1992 Sent letter notifying Mr. Underhill about the Board of
Health hearing.
August 19, 1992 Follow-up inspection found that the remaining piles had
crusted over with few flies observed. There were no
odors detected at the property line.
August 25, 1992 Board of Health Hearing was held. Mr. Underhill did not
appear. Manure Handling Plan was discussed. The
9211375
hearing was continued until September 1, 1992.
August 25, 1992 Follow-up inspection was conducted. No flies or odors
were observed due to high winds and cold temperatures.
However, some ponding of rain water runoff was observed.
August 31, 1992 Follow-up inspection showed small amounts of flies at
the piles.
September 1, 1992 Board of Health Hearing continued. The Board decided to
order the implementation of the manure handling plan to
prevent the recurrence of nuisance conditions. Mr.
Underhill was not in attendance.
September 11, 1992 The pile north of the Blackford residence was observed
to have been removed.
September 15, 1992 The Cease and Desist Order was delivered.
9Z0975
LEGAL ACTION NO: 036-92
JOHN UNDERHILL
APPEAL HEARING BEFORE
THE BOARD OF COUNTY COMMISSIONERS
VIOLATION: Colorado Revised Statute Section 25-1-613. "Removal of
nuisances. The board of health shall examine all nuisances,
sources of filth, and causes of sickness, which, in its
opinion, may be injurious to the health of the inhabitants,
within its town, city or county. . . . , and it shall destroy,
remove, or prevent the same as the case may require."
BACKGROUND: Throughout the early Spring of this year the Department
received calls from residents neighboring Mr. Underhill's properties located at
Sections 16 and 17, Township 1 North, Range 67 West. The residents were
concerned about the amounts of manure being brought in to the Underhill
properties and potential for problems with odors and flies . Mr. Underhill was
informed that the Department had been receiving complaints. His response was
that he could not apply the manure because the crop was too small and had not
germinated. It was noted at the time that large amounts of manure had been
stockpiled across the road from the Underhill residence for an entire year
without any attempt to spread the manure. However, the Department continued to
advise the complainants that as long as nuisance conditions had not developed,
Mr. Underhill was within his rights to stockpile agricultural waste on his
property. After the Department contacted John Underhill concerning the
complaints, he continued to receive additional loads of manure. Finally, on June
25, 1992, in response to a complaint received by the Department, an investigation
was completed which found large piles of chicken manure with the presence of
thousands of flies. Odors in the area were also prevalent. Subsequent to the
investigation a Notice of Violation of the previously mentioned statute was sent
on July 7, 1992. In the notice the Department recommended that the piles be
sprayed with pesticide and covered with plastic until they could be incorporated
into the soil. According to the manure source, Boulder Valley Poultry Farms, an
additive had been used in the feed which is designed to pass through the chickens
and kill hatching maggots. However, the flies and odors continued to persist at
the piles and no spraying or covering had been completed at either of the sites.
At the invitation of Mr. Underhill via telephone, an inspection was conducted on
July 13, 1992 co confirm improved conditions of which he had boasted. The
inspection found a new delivery had been made and although it appeared that an
attempt had beer, made to disc the pile, numerous bloated dead chickens were found
intermixed and lying on the surface. BVPF was asked to cease hauling to the
sites. They complied with the Department's request immediately.
After hauling to the area ceased, the piles eventually crusted over. Subsequent
inspections since August 19, 1992 have found that the number of flies have been
minimal. However, since Mr. Underhill has indicated that he intends to resume
hauling in the future the Department elected to continue its action on the case.
Mr. Underhill was notified of the hearing scheduled before the Weld County Board
of Health on August 25th. I informed Mr. Underhill in a phone conversation prior
to the hearing that, regardless of the current conditions of the manure piles,
the Board would be considering a Cease and Desist Order with conditional approval
1
920975
of future applications. Mr. Underhill failed to attend the hearing. The August
25th hearing was continued to September 1, 1992 to allow the opportunity for
additional testimony and further evaluation of the Order. Mr. Underhill was
notified of the second hearing and, once again, failed to attend. His failure
to attend occurred even after the Department strongly urged Mr. Underhill to come
and provide input into the manure handling plan which was being considered by the
Board of Health.
At the September hearing, the Department recommended that the Board order the
abatement of recurring nuisance conditions at the Underhill properties with the
implementation of a manure handling plan. The Department made this
recommendation understanding the following:
1. Mr. Underhill intends to continue to use manure for fertilization of his
crops in the future and such use is an agricultural use by right. The
Department felt that although it had a responsibility to prevent the
recurrence of nuisance conditions, it would be inappropriate to prohibit
Mr. Underhill from using manure entirely. Therefore, the Department felt
that an appropriate compromise would be to order the use of accepted
agricultural manure handling practices.
2. Overstocking and over application of manure can lead to nuisance
conditions as well as a negative impact, on ground water quality. It can
also ultimately lead to decreased crop production due to increased
salinity in the soil.
3. Current control procedures employed by Mr. Underhill will not be effective
if fresh loads of manure are continually brought to the properties and
stockpiled.
4. Continued hauling under the present conditions will only resume ongoing
nuisance conditions especially in the spring and summer month.
5. The Board of Health has the responsibility as written in the statutes to
"prevent (nuisance conditions) as the case may require."
Based on the previously mentioned observations and testimony given by local
residents, the Board of Health elected to issue the Cease and Desist Order which
was distributed to you in your packets. The order requires that a manure
handling plan be followed on all land owned, occupied or farmed by John
Underhill. Due to the amount and nature of public testimony provided, the Board
of Health decided to incorporate, into the Order, a more stringent version of the
plan proposed by the Department. The plan reads as follows:
1. Land application of manure will be for soil enhancement and plant
fertilization purposes only. To ascertain that the application continues
to enhance the soil composition and crop production, the following will be
required of the user of the chicken manure:
a. The soil at each application site will be tested annually to assess
the nitrogen needs.
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9F_0975
b. The manure will be tested annually for nitrogen, potassium,
phosphorus content, and heavy metals, by a certified laboratory at
the cost of the landowner/applicant.
c. Irrigation water will be tested annually for nitrate nitrogen in
order to be credited to the overall nitrogen demand of the crops.
d. A maximum application rate will be determined annually based on the
above mentioned tests and crop requirements and provided for review
by the Department.
e. All manure must be incorporated immediately into the soil to achieve
maximum control of nuisance conditions and benefit to crop
production.
2. No manure will be stored on the site. Existing manure piles will be
incorporated or removed before January 1, 1993.
3. Odors from the site will be maintained at levels less than 7: 1
dilutions per threshold as measured by the Barneby Cheney
scentometer at the property line.
4. Records will be kept tracking the application of manure. The
records will indicate the date and quantity of manure incorporated
and the specific site to which the manure was applied and
incorporated.
5. In the event that any nuisance conditions develop, with the existing
stockpiles, the following measures will be implemented upon order of
the Weld County Health Department to abate the nuisance:
a. Hauling of manure to the Underhill properties will cease
immediately.
b. Within 24 hours, existing stock piles will be removed , sprayed
with pesticide and covered with plastic, or incorporated into
the soil.
The Order was delivered on September 15, 1992 by the Weld County Sheriff's
Office. The plan was based on guidelines outlined in Service In Action Sheets
No. 549 and 514 issued by the CSU Cooperative Extension Office and a management
plan which was implemented to control similar nuisance conditions in another case
in Weld County in 1987. Also, similar conditions have been incorporated in the
new Feedlot Containment Regulations promulgated by the State.
Since the Hearing on September 1, 1992, Mr. Underhill has been quoted in the
Times Call, September 2, 1992 as saying that he could not put the manure on when
the hay is high or when he's harvesting. This comment seems inconsistent with
comments to Staff earlier this spring suggesting that the crop was too small to
accommodate the application of manure. These types of inconsistencies coupled
with the fact that large amounts of manure are left setting for at least two
growing seasons while additional semi loads are delivered, bring into doubt the
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90375
fact that Mr. Underhill intends to apply manure in a timely and responsible
fashion consistent with accepted agricultural practices.
Based on the aforementioned testimony and observations, the Department recommends
that the Board of County Commissioners uphold the Order of the Board of Health.
4
92'0975
October 7, 1992
Ron Pumphrey
2990 Weld County Road 17
Brighton, CO 80601
Board of Health,
Weld County, Colorado
Re : Underhill Waste Management Plan
Dear Boardmembers :
This is to express my support for the board ' s actions in
helping to control the dumping of animal waste on the
Underhill property, located near County Roads 8 and 17. While
the media has tried to portray this matter as the whining
"city slickers" versus the honest farmer , nothing could be
further from the truth.
The Underhills ' , in their attempt to establish a commercial
dumping operation, have negatively impacted every neighbor
with whom I have spoken within a two-mile radius of their
property , most of whom are full-time farmers . To my
knowledge , none of the area residents has ever expressed
concern about waste generated by the Underhills ' own
livestock (which sometimes number up to 200 head) , or the
many dairy operations in the vicinity.
Additionally, many of the farmers in the area use manure or
sludge brought from elsewhere as a soil supplement . These
farmers , however , incorporate it into the soil in a timely
manner and do not stockpile more than they can utilize .
I urge to board to deny the Underhills ' appeal , and take
action to insure compliance with the plan as it stands .
Sincer
yours ,
Ro Pumphrey
EX IBIT
October 6, 1992
TO: WELD COUNTY HEALTH DEPARTMENT
SUBJECT: .JOHN UNDERHILL DUMPING NEAR WCR 8 BETWEEN WCR .'7 & 19
During the last year, John Underhill has been dumping 1a: ge
truckloads of chicken manure between WCR 17 & 19 near WC.i2 8. rhe
manure is not spread nor is it tilled into the ground, but is only
left in large piles.
We live at the property adjacent on the east side of where the
manure is being dumped. As you know, the prevalent windG are to
the southeast and t;he stench after the manure is dumped or after a
rain is repulsive. Additionally, in five years of li7ing here, the
flies are worse than at any time before.
The land here has a gradual slope to the east. Whenever there is ca
major rain (usually two or three times per summer) , the -unoff tron
Mr. Underhill ' s property is across this property and int•) North tar
Reservoir, which we use as drinking water for our animal's.
There certainly appears to be a health hazard when a person :has to
smell the putrid odors and fight the flies on a cons;ant basis. We
request that the Health Department order Mr. Underhi 1l teat hi
manure piles in an acceptable manner by spreading and t.i :.1 in4 it
into the soil or moving the manure elsewhere.
Thank you for your attention to this matter.
Sincerely,
Bill Matlock
000"
Rand Be ineke
8601 WCR #8
Brighton, CO 80801
(303) 659-232g
EXHIBIT
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Aug . 25 , 1992
Weld County Health Dept .
Greeley , CO 80631
As a concerned Weld County resident , I am writing about the health
hazards created by the stockpiling of chicken manure on property
in our area .
I know this is a farming area , which I am not , but I grew up on a
farm and I know the only benefit from manure of any kind is only
when it is put i ❑ the soil . Why would anyone have it imcorted and
then leave it in piles?
T do know the fly population has increased by 400 % and this can
only create disease h health problems , not to mention the odor we
live with .
Why does he continually get away with ignoring notices by Weld C::uo_•
to cl.oan this mese ap > n a specified time? He has had a loader and
manure spreader parsed near one of the piles for some time but that
is as far as he has gone or intends to go .
I think this a health concern for all and something needs to be done
about it .
incerely ,
Jack & Donna Stevens
2464 Weld Cnty . Rd . 17
Brighton , CO 80601
920375
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SEP-21-92 MON 10:29 WEI') CO HEALTH DEPT FAX NO. 3033Rn4966 P, 02
.. ,..1 i, 1,04
Riverdale Ranch
1::06 Weld Co Rd s8.
2righton, Colorado 80601
((Silliest for t riven )
Board of County Comas toners
Greely Colorado
By special appearance only
•
Dear Sirs.
Please be advised I feel that I was created very unfairly by
the board of Realths action this date in seeking to control the
application of chicken manure to the farmland I own when there own
inspector advised them there was no problem that date) and there
was no health concerns from the use 1 put it to.
Prior to any contact with the health Dept I had allready made
several chances to the acquisition of the manure one being it walla
be spread when delivered and the disced into the fallow fields as it
was acquired.The flies were controlea by spraying on the site and
the feed of the chickens contained larvadex as a control by
destroying the fly larva No better control exist than to destroy
the larva,breaking the cycle
There manure handling plan is completly unworkable and does not
allow for the recycling of this very valuable resource and tonic
make it a very exepensive to use and beyond my resourses. ;
i
This is excessive government interference with my constitutional
right to manage my own affairs„I regard it as at least a species
of tyranny when one man or number of persons Seek the authority to
deny another the right to make a living ,as a sovereign citizen 1
ore nothing to the public) so long as I do not trespass on there
rights
I am a member of the sovereign body politic and a sovereign citizen
of the US of America .A free man .residina in Weld County COlorado.
They are interfering with My constitutional rights to
life, liberty, and the pursuit of happiness.
All power corrupts ,absolute power corrupt absolutely
�l r
5lnceriy
John E Un erhill
9203'75
SEP 21 ' 92 10: 37 3033564966 PPGE . 002
Held County Board of Health Minutes
August 25, 1992
Page 5
COMPLAINT HEARINGS
John Underhill - Legal Action No. : 036-92
VIOLATION: Colorado Revised Statute Section 25-1-613. "Removal of nuisances.
The board of health shall examine all nuisances, sources of filth, and causes
of sickness, which, in its opinion, may be injurious to the health of the
inhabitants, within its town, city or county and it shall destroy,
remove, or prevent the same as the case may require."
LOCATION: SECTION 16 AND 17, TOWNSHIP 01 NORTH, RANGE 57 WEST
CHRONOLOGY OF EVENTS
June 23, 1992 Received complaint.
June 25, 1992 Inspection found thousands of flies and intense odors.
July 7, 1992 A Notice of Violation of C.R.S. 25-1-613 was sent to Mr.
Underhill.
July 9, 1992 Spoke with Bruce Vaughn of Boulder Valley Poultry Farms
about the problem. He said that Larvadex was being added
to the feed for the last four (4) months.
July 10, 1992 Sent a letter requesting Boulder Valley Poultry stop
hauling Manure to Mr. Underhill.
July 13, 1992 After a phone call from Mr. Underhill indicating that the
problem was under control, an inspection found numerous
dead, bloated chickens at one (1) site. Odors and flies
were still found to be a problem at the newer piles.
July 14, 1992 Sent a letter informing Mr. Underhill that conditions were
still unacceptable and that the Department was still
pursuing Legal Action. He was also reminded to spray and
cover.
July 23, 1992 An inspection found flies and odors to be a problem. Dead
chickens were still lying on the ground although they had
since popped.
August 7, 1992. Sent letter notifying Mr. Underhill about the Board of
Health hearing.
August 19, 1992 Follow-up inspection found that the remaining piles had
crusted over with few flies observed. There were no odors
detected at the property line.
( .
920375
-"
N A�YY�
14 Sheriff ' s Department September 11 , 1992 _
-11 m Lee D . Morrison Assistant Weld Count Attorney
-, r,a A nn -- y --- -
Service of Process on John Underhill
Please serve John Underhill , 8206 WCR 8 , Brighton, Colorado, with
the Cease and Desist Order which is attached hereto. A copy of the
Order has been attached for your Return of Service .
I would appreciate service as soon as possible and having the
Return of Service in my office no later than September 25 , 1992 .
When service and the Return of Service have been completed, please
return the copy of the Order, along with the Return of Service, to
the County Attorney' s Office . DO NOT FILE THE COPY OF THE ORDER OR
THE RETURN WITH THE COURT.
Thank you for your attention to this matter.
_%
Lee D. Morrison
Assistant Weld County Attorney
LDM/db
Attachments
TZLD =RI:F-
4. ,P_- .2 7 : 53
900375
• WELD COUNTY BOARD OF IiEAL.I'll
r
IN RE: John (little 'Ii ii I )
8206 WCR 1 )
Bright on, Colorado
£10601 ) CEASE AND DES I ST ORDER
Iti.tspoudeu1. )
'1'1115 MA'I"I'ER came before the Weld County Board of Ilea l pursuant. to C.It.S. ,
Section 25- 1 -615 and Weld County Ordinance No. 56, Sept either L, 1997, . The
Respondent was not present, notice had been sent to him by Cer 1.if led Mail on
August. 26, .1.992 and a notice of the con Li nuance from August 25, 1992 to September
1 , 1992, delivered by certified mail . Testimony was presented by Jell' Stoll ,
Supervisor of Environmental Protection Services. This Board, upon considering
the statements of witnesses, having considered the reports herein, and being
otherwise advised in the premises , DO'I'l! FIND AND ORDER:
1 . That Lhe Respondent received a Certified Letter on August 2:1, 1992 ,
which was dated august 26, 1992, giving notice of this hearing and has been
adequately ndvi set of the condit ion which is the subject or this heating.
2. That. the Respondent has created and intends to allow to exist a
regularly reoccur:ring condition which is a nuisance and a source of lilt It because
of Lhe piles of clticket' manure and dead chickens which at tract flies, generate
odors which may be injurious to the inhabitants of Weld County.
3 . The properly subject: to this order is all portions of Sections 16 and ,
17 , Township 1 North, Range 67 West of the 6th Y.M. , which is owned, occupied or
fanned by the Respondent, as shown in Exhibit A, which is at tacked hereto and
incorporated by this reference.
MANURE HANDLING PLAN
Whereas past nuisances have existed and that future conditions are likely to
occur. Be it resolved by the Weld County Board of Health that the following
manure Handling flan will be followed by the Respondent. Modifications to the
plan wi.11 be allowed upon proper application to the Weld County Board of health.
No such modifications will take effect until approved by the Weld County Board
of health..
In order to adequately control the recurrence of nuisance conditions resulting
from the storage of manure by John Underhill, the following conditions are to be
followed:
1. Land app Lion of ununle will be for soil enhancement and plant.
f et:l.i1i.zation purposes only. 'l'o ascertain that the application continues
to enhance lie soil coutpusition and crop product.ion, the following will be
required of the user of the chicken manure:
a The soil at each applfcat_ion situ will be tested annually to assess
t he nitrogen needs .
b. The manure will be tested annually for nitrogen, potassium,
phost:horus content , and heavy metals, by a certified laboratory at
the cost of the landowner/app 1icant..
c. Irril,atiou water will be tested annually for nitrate nitrogen in
order to be credited to the overall. nitrogen demand of the crops.
d. A ma>.imum application rate will be determined annually based on the
above mentioned tests and crop requirements and provided f.or review
by t be. Department.
e. All manure must be incorporated immediately into the soil to achieve
maximum control of nuisance conditions and benefit to crop
p rudnc'.I.I on.
9 375
2. No manure will be stored on the site. Existing manure piles will be
incorporated or removed before. January 1, 1.993.
3. Odors from the site will be maintained at levels less than 7: 1 diLutions
per threshold as measured by the Barneby Cheney scentometer at the
property line.
4. Recoils will be kept tracking the application of manure. The records will
indicate the dale and quantity of manures incorporated and the specific
site to which the manure was applied and incorporated.
6. In the event that any nuisance conditions develop, with the existing
stockpiles, the following measures will be implemented upon order of the
Weld County Health Department to abate the nuisance:
a. Hauling of manure to the Underhill properties will cease
i nmled i a t.el y.
b. Within 24 hours, existing stock piles will be removed, sprayed with
pesticide and covered with plastic, Or incorporated into the soil .
YOU ARE HEREBY ADVSED 'I'IIA'I"THIS ORDER MAY itt: APPEALED BY FILING A WRITTEN AI'I'f:Al.
W1'1'11 THE CLI;ItK 'I'O 1'IIE BOARD OF WELD COUNTY COMMLSSlONERS, 915 10'1'11 STREET, P.O.
BOX 758, CIIEELEY, COLORADO 80612 . THE AI'I'f:AL MUST BE RECEIVED BY '1'1 ': CLERK TO
'I'HIE BOARD WITHIN I' IVE (5) DAYS (IF RECEIPT OF 'I'ILlS ORDER.
Tom Cope, Chairman
Weld County Huesrd of health
NOTE: VIOLATION oF' i'IIIS ORDER CONSTITUTES A CLASS 1. I't:1'i'Y OFFENSE. PUNISHABLE BY
A FINE OF NOT Multi' THAN $500.00 Olt SIX MONTHS IN JAIL.
STATE OF i:OLn1UA00
) ss .
COUNTY OF WELD )
SUBSCRIBED AND SWORN lo before me his _/ // lday of..--_-_>t. 1_(e ,,, (_ 1992 .
Tom Cope a Single :Individual . --
WITNESS my baud and official seal .
Notary Publ j
My coniti55 ion expires:
L�. /15
-
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SIATF' nF COLOPAPO
) Ss CFPTIFTCATE OP AFFIDAVIT OF SERVICE
COUNTY or WrLP ) (UPON DEFENDANT PFRSDt1ALLY )
nOCUMENT NUMBER: 92 25P "R4"7r
DOCKET MUM BF P:: 97DV^^C 'n
no APB nF Cn CoMM gr �r LB Ifs: t1NDFRHILLs. fHfi F -,_--
I HE PE BY CCP' IFY THAT I ,1I• 911FP THE AGr OF 18 YE AP ANt'
MOT A PA r.TV TO THIS AC TT TUJ , AND THAT I 5' UFD A TRUE CnPY OF THE
CEA5.F ANn PE ST ST ngnrr FILED IN THE
AprVF - MIJMPFPEI Cllf '!_ ACTON AND I op ATTACHr!? Hr Pr To , nu THE DEFENDANT,
IIHnr2UTLLi_,l ti" F 1•JHn IS A rMATUPf1L PFRSDU CIVET:. THE AGE fF. IB YE AF
BY PELII,rn PIG Tn ANT t r.14 ,I 'Ir WITH T Hs- SA TO 'EFEfICA NT , PFP SANALL Y, A TRUE
COPY Tt,cgrnr , TnGFTHE 9 HTTH A TPtIC CnPY nF THE FOPM ATTACHED THEF'ETC)
ON THE _FIFTPLNIH "AV nr -=Ln-LMnre_, _1902- AT _l-: 22__S.m._, AT
92' 6 NCP t'
UP TGHTrf: CO fl'A' 1
COUNTY OF WELD , COLLPADO ,
-D .JO9FAN
r`HFPIFF
SFPVICE R1s ,
MILL-AGE 51 ,'' ^
TIMr RC sr
TOTAL RI6 ,'? '`
AMOUNT 13 it_LIT R -', -r /-
M(.^V SCHWA PTA _
/
DrPUTY ,
suns CPIPrr AN!' c1In Tr PrrnPr ME r!' IS 'LAY or , 19 __
r1 Or ARV PUBLIC ---__
r'V COMMISS tt'N rXPIr! '
9702'75
. • _
if to DEPARTMENT OF HEALTH
1517 - 18 AVENUE COURT
IGREELEY, COLORADO 80631
ADMINISTRATION (303) 353-0586
O
HEALTH PROTECTION (303)353-0635
COMMUNITY HEALTH (303)353-0639
COLORADO
August 26, 1992
Certified Letter No. : P 423 630 339
Legal Action No. : 036-92
John Underhill
8206 Weld. County Road 8
Brighton, Colorado 80601
Dear Mr. Underhill:
The hearing held before the Weld County Board of Health on Tuesday, August 25,
1992, resulted in a continuance in order that additional testimony could be
heard. Therefore, please be advised that this matter shall be heard before the
Weld County Board of Health on September 1, 1992, at 9:00 a.m. in the
Commissioner's Hearing Room of the Centennial Building, located at 915 10th
Street, Greeley, Colorado. The Board will hear additional testimony and consider
legal action at that time.
Be further advised that you have the right to be present at this hearing and/or
be represented by counsel. Should you have any questions concerning this matter,
feel free to contact this office at 353-0635.
Sincerely,
WC rey L. Sto11 . fickle �
Environmental Protection Specialist erector, Environmental Health
Weld County Health Department
JLS/jg-1763
cc: Randolph Gordon, M.D. , M.P.H. , Director, Weld County Health Department
Lee Morrison, Assistant County Attorney
9x70375
( 'i ( I DEPARTMENT OF HEALTH
1517• 16 AVENUE COURT
111111
ci
GREELEY, COLORADO 80631
ADMINISTRATION(303)353-0586
HEALTH PROTECTION(303)15-1-m35
COMMUNITY HEALTH (303)353-0639
COLORADO
August 7, 1992
Certified Letter No. : P 423 630 336
Legal Action No. : 036-92
John Underhill
8206 Weld Country Road 8
Brighton, Colorado 80601
Dear Mr. Underhill:
Certified letter No. : P 423 630 312, of July 7, 1992, from this office which was
and delivered to you on July 7, 1992, (see attached copy) , required that within
five (5) days upon receipt of the notice, you come into compliance with Colorado
Revised State Statutes, Section 25-1-613. As of this date, this Division finds
that the nuisance, source of filth, and cause of sickness as previously
described, continues to exist.
Therefore, please be advised that this matter shall be heard before the Weld
County Board of Health, in the Centennial Building, at 915 10th Street., Greeley,
Commissioner's Hearing Room, on August 25, 1992, at 9:00. The Board shall
consider possible legal action.
Be further advised that you have the right to be present at this hearing and/or
be represented by counsel. Should you have any questions concerning this matter,
feel free to ccmtact this office at 353-0635.
Sincerely,
gel ; . 4atil
eff (y L. Stoll S. Pickle, M.S.E.H.
Environmental Protection Specialist irector, Environmental Health
Weld County Health Department
JLS/jg-1.598
cc: Randolph Gordon, M.D. , M.P.H. , Director, Weld County Health Department
Lee Morrison, Assistant County Attorney
9210375
(11/ ess;>:,
PM; DEPARTMENT OF HEALTH
\ 11.6
1517- 16 AVENUE COURT
GREELEY, COLORADO 80631
ADMINISTRATION (3031 353-0586
O� HEALTH PROTECTION (303) 353-0635
.� COMMUNITY HEALTH (303)353.0639
COLORADO
July 14, 1992
John Underhill
8206 Weld County Road 8
Brighton, Colorado 80601
Dear Mr. Underhill:
As a follow-up to our telephone conversation yesterday morning July 13, 1992,
that afternoon I went out to the sites where you have been collecting chicken
manure. The pile North of the Blackford residence has apparently crusted over
to some degree. However, there is still a moderate amount of flies on the pile.
The pile South of the irrigation ditch, between Weld County Road 8 and 10, off
of Weld County Road 17, was in a similar condition, with a moderate amount of
flies and odor. However, the condition of the piles across the ditch to the
North was significantly worse.
There were extremely heavy concentrations of flies on the manure. Throughout the
piles I noted at least nine (9) dead chickens, which by the time of my inspection
at 3:00 p.m. , on yesterday afternoon, were bloated from the heat. Needless to
say, the odors were also extreme.
In the area, it general, even at Weld County Road 8, especially West of Weld
County Road 17, there was a notable odor of chicken manure, especially with the
mild breeze coming from the North.
Based on these observed conditions, it is apparent that the nuisance problem has
not improved since my last visit in June. Therefore, we will continue with legal
action as statEd in our letter, which you received July 9, 1992. Please be
reminded that you had five (5) days as of that date to fumigate for flies on all
piles and cover with plastic, or remove or incorporate sufficiently to cease the
nuisance conditions.
If you have any further questions regarding this matter, please call 353-0635.
Sincerely,
C
Jeffrey L. Stoll
Environmental Protection Specialist
30375
DEPARTMENT OF HEALTH
(tit
1517- 16 AVENUE COURT
ig GREELEY,COLORADO 80631
O 1 ADMINISTRATION (303)353-0586
HEALTH PROTECTION(303)353-0635
p. COMMUNITY HEALTH (303)353-0639
COLORADO
July 10, 1992
Certified Letter No. : P 423 630 319
Bruce Vaughan
Boulder Valley Poultry Farms
5325 Valmont
Boulder, Colorado 80301
Dear Mr. Vaughan,
After our conversation regarding the nuisance conditions at the Underhill
properties in Weld County, I spoke with the Division Director, John Pickle. In
our meeting we determined the following:
1. The piles of manure on the Underhill properties currently present a
nuisance condition to neighboring residents due to the existence of severe
amounts of flies and intolerable odors.
2. Current methods for controlling these nuisance conditions have not been
effective.
As I mentioned in our phone conversation yesterday, it is the responsibility of
this Division to remove or prevent nuisance conditions as provided in the
Colorado Revised. Statutes Section 25-1-613 as follows:
"Removal Df nuisances. The board of health shall examine all
nuisances, sources of filth, and causes of sickness, which, in its
opinion, may be injurious to the health of the inhabitants, within
its town, city or county and it shall destroy, remove, or
prevent the same as the case may require."
After reviewing this matter, it is the determination of this Department that
continued hauling of manure to the Underhill properties will only aggravate the
nuisance condit:ons. Therefore, you are required to cease hauling manure to
these properties immediately. Failure to comply with this order can result in
legal action.
Bruce Vaughan
Boulder Valley Poultry Farms
Certified Letter No. : P 423 630 319
July 10, 1992
Page 2
If you have any further questions regarding this matter, please call 353-0635.
Sincerely,
_ ffrey L. Stoll n S. Pickle, M.S.E.H.
Environmental Protection Specialist irector, Environmental Health
Weld County Health Department
JLS/JSP/E1366
( ELT.,
totzteite: 444\a,
DEPARTMENT OF HEALTH
1511-18 AVENUE COURT
GREELEY, COLORADO 80631
C: ADMINISTRATION (303)353-0586
HEALTH PROTECTION(303)353-0635
COMMUNITY HEALTH(303)353-0639
COLORADO
July 7, 1992
Certified Letter No. : P 423 630 312
Legal Action Nc . : 036-92
John Underhill
3113 Weld County Road 17
Brighton, Colorado 80601
Dear Mr. Underhill:
In response to numerous complaints, your property located at Sections 16 and 17,
Township 1 North, Range 67 West, Weld County, Colorado, was inspected on June 25.
1992, by Jeffrey L. Stoll. The following was found to be a nuisance problem:
Large piles of chicken manure are a source of flies. Thousands of
flies were observed on and around the piles located on the above
mentioned. sections.
Colorado Revised Statute Section 25-1-613 provides the following:
"Removal of nuisances. The board of health shall examine all
nuisances , sources of filth, and causes of sickness, which, in its
opinion, may be injurious to the health of the inhabitants, within
its town, city or county and it shall destroy, remove, or
prevent the same as the case may require."
Be advised, you have five (5) days from receipts of this notice to correct the
aforementioned violations. Failure to respond will result in further legal
action by this department.
It is the recommendation of this department that the piles be sprayed with
insecticide and kept covered with heavy plastic or removed. Locating piles of
manure in close proximity to neighboring homes should also be avoided.
9Z03"45
John Underhill
Certified Letter No. : P 423 630 312
Legal Action No.. : 036-92
July 7, 1992
Page 2
If you have any questions concerning this matter, feel free to contact me at this
office by calling 353-0635.
Sincerely.
Jeffrey L. Stoll ohn S. Pickle, M.S.E.H.
Environmental Protection Specialist Director, Environmental Health
Weld County Health Department
JLS/JSP/jg-E1324
cc: Randy Gordon, M.D. , M.P.H. , Director, Weld County Health Department
Lee Morrison, Assistant County Attorney
Hello