HomeMy WebLinkAbout970918.tiffDISTRICT COURT, WELD COUNTY, COLORADO
Case No. 97 CV , Division
SUMMONS
THE CONSOLIDATED HILLSBOROUGH DITCH COMPANY; THE HILLSBOROUGH EXTENSION DITCH
COMPANY; ESTHER BINDER AND DEAN BINDER, TRUSTEES OF THE FLOYD BINDER TRUST;
GEORGE W. AND E. JEANE LINGER; LUCKY 2 ENTERPRISES, LTD., a Colorado corporation; JACOB
KAMMERZELL TRUSTEE OF THE JACOB KAMMERZELL TRUST; ALAN RIEDER, LARRY RIEDER AND
MARDELL HUNTER, TRUSTEES OF THE EARNEST C. RIEDER AND LOUISE E. RIEDER TRUST; HENRY
R. SAUER; LYDIA STROH INDIVIDUALLY AND AS TRUSTEE OF THE ALBERT STROH TRUST; FRANK
WIND AND ARLENE WIND,
Plaintiffs.
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY' OF WELD,
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
complaint 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 publication.
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 demanded in the complaint, without any further notice to you.
The following documents are also served with this summons: Complaint
Dated this 28th day of April, 1997.
LIND, LA
& OTTENHOFFLP_
Kenneth F. Lind, #7792
P.O. Box 326
1011 Eleventh Avenue
Greeley, CO 80632
Telephone: (970) 353-2323
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.
iU 0036
970918
DISTRICT COURT, WELD COUNTY, COLORADO
Case No. 97 CV , Division
COMPLAINT
THE CONSOLIDATED HILLSBOROUGH DITCH COMPANY; THE HILLSBOROUGH
EXTENSION DITCH COMPANY; ESTHER BINDER AND DEAN BINDER, TRUSTEES OF
THE FLOYD BINDER TRUST; GEORGE W. AND E. JEANE LINGER; LUCKY 2
ENTERPRISES, LTD., a Colorado corporation; JACOB KAMMERZELL TRUSTEE OF
THE JACOB KAMMERZELL TRUST; ALAN RIEDER, LARRY RIEDER AND MARDELL
HUNTER, TRUSTEES OF THE EARNEST C. RIEDER AND LOUISE E. RIEDER TRUST;
HENRY R. SAUER; LYDIA STROH INDIVIDUALLY AND AS TRUSTEE OF THE ALBERT
STROH TRUST; FRANK WIND AND ARLENE WIND,
Plaintiffs.
v.
THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF WELD,
Defendant.
COME NOW, the Plaintiffs, by and through their attorneys, Lind, Lawrence &
Ottenhoff LLP, and for their complaint against the Defendant, allege and state as follows:
VENUE, JURISDICTION AND STANDING
1. The Plaintiffs, Consolidated Hillsborough Ditch Company (hereinafter
"Consolidated") and The Hillsborough Extension Ditch Company (hereinafter "Extension"),
are Colorado non-profit corporations in good standing. Both Consolidated and Extension
are incorporated mutual ditch companies; are the owners of various water decrees; hold
easements and/or rights of way for ditches to convey water to shareholders of the
companies; and, such shareholders, decrees and ditches will be substantially damaged
and impacted by the actions of the Defendant complained of hereinafter.
2. The remaining Plaintiffs are property owners who own real property located
between the road projects proposed by the Defendant complained of hereinafter and either
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the ditch of Consolidated or the ditch of Extension and/or the Big Thompson River and/or
Little Thompson River. All of said Plaintiffs will be substantially impacted, damaged and/or
injured by the projects of Defendant complained of hereinafter.
3. Weld County is a body corporate and politic capable of suing and being sued
in its own name. The named Defendant, The Board of County Commissioners of Weld
County (hereinafter "Board"), is delegated the authority to exercise powers granted to
Weld County by statutes of the State of Colorado, constitution of the State of Colorado,
and the Home Rule Charter of Weld County, Colorado.
4. All of the property affected by the projects proposed by the Board, and all of
the actions complained of, are located in Weld County, Colorado. Therefore, Weld
County is the proper place of venue, and this Court has jurisdiction over all Plaintiffs and
the Defendant.
GENERAL STATEMENT OF FACTS
(ROAD 42 PROJECT)
5. Paragraphs 1 through 4 hereinabove are incorporated by reference.
6. During December, 1996, several of the Plaintiffs were informed that
Defendant intended to construct certain improvements and/or structures on Weld County
Road 42 between Weld County Roads 15 and 17 (hereinafter the "Road 42 Project").
7. The Road 42 Project consisted of, among other things, removing an existing
24" culvert and replacing it with two 7 -foot culverts.
8. The purpose of the existing (and proposed culverts) is to allow waters to flow
through the culverts under Weld County Road 42 in a south to north direction.
9. The existing 24" culvert, prior culverts of similar size, and Road 42 itself have
been in place for at least 50 years.
10. The Road 42 Project and existing culvert are located in a draw or ravine
which receives water from adjoining lands that drain in a south to north direction.
Approximately % mile north of the location of the Road 42 Project, the ravine ends and
drops into the Hillsborough Extension Ditch located in the SE% of Section 17, Township
4 North, Range 67 West, Weld County, Colorado.
11. During the irrigation season (generally defined as being from May 1 through
September 10 of every year), the Hillsborough Extension Ditch runs at or near capacity in
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this location. Said Hillsborough Extension has been in its present location and
configuration, and has run at capacity for more than 80 years.
12. Over the past 50 or more years, Road 42 and the existing 24" culvert have
acted as a retention structure for the rainfall, drainage, irrigation and other waters, and
"held back" the waters in the ravine to the South of Weld County Road 42. It is estimated
that the 24" culvert will pass approximately 6.5 cfs of water. Existing Weld County Road
42 and the 24" culvert have been in place for such a long period of time that they are no
longer artificial structures, but are now natural structures, and any change or modification
will create new or changed, as well as, artificial conditions.
13. The Hillsborough Extension Ditch existed prior to construction of Road 42,
and the size of the existing culvert (and prior culverts) was installed to avoid destruction
of the ditch and subsequent flooding. Plaintiffs have detrimentally relied upon the existing
Weld County Road 42 and the 24" culvert for purposes of slowing down the velocity and
decreasing the amount of volume of water that reaches the Extension Ditch through said
ravine for not less than 50 years.
14. Between December, 1996 and March 18, 1997, Weld County modified the
Road 42 Project such that two 5 -foot culverts instead of two 7 -foot culverts would be
installed. The modified Road 42 Project will allow waters up to approximately 80 cfs to
flow unimpeded underneath Road 42 and into the Hillsborough Extension Ditch.
15. The increase from the existing 6.5 cfs to the proposed 80 cfs is an incredible
increase in both the volume as well as the velocity of water flowing in the ravine, which
water will then enter the Hillsborough Extension Ditch approximately'/ mile to the north
of Road 42.
16. The substantial increase in velocity and volume of water will cause the ditch
structure to fail due to lack of carrying capacity and size in the general location where the
ravine drops into the Hillsborough Extension Ditch.
17. Additionally, the increase in the volume and velocity of water flowing in the
ravine north of the Road 42 Project will cause substantial damage to property of some of
the Plaintiffs which is located between said Road 42 and the Hillsborough Extension Ditch.
18. Furthermore, the break of the ditch will then cause flooding of some of the
Plaintiffs' properties located between the Hillsborough Extension Ditch and the Little
Thompson River located approximately 3/4 of mile to the north of the Hillsborough
Extension Ditch and ravine confluence.
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19. On or about January 9, 1997, Plaintiffs' counsel notified Defendant that the
Road 42 Project would cause a breach of the Hillsborough Extension Ditch, and result in
flooding and substantial damage to properties of some of the Plaintiffs.
20. The Defendant, despite having knowledge of the damage the Road 42
Project would cause, elected to proceed with the Road 42 Project without further
modification.
21. By a letter dated March 18, 1997, the Defendant informed Plaintiffs' counsel
that construction of the Road 42 Project would begin on or about November 1, 1997.
GENERAL STATEMENT OF FACTS
(ROAD 50 PROJECTS)
22. Paragraphs 1 through 21 hereinabove are incorporated by reference.
23. During January, 1997, several of the Plaintiffs were informed that Defendant
intended to construct certain improvements and/or structures on Weld County Road 50,
the first being a bridge structure on Road 50 between County Roads 15 and 17 and the
second being a bridge structure at the Intersection of Weld County Roads 50 and 13 (the
"Road 50 Projects"). The Road 50 Projects consist of, among other things, removing
existing 32" or smaller culverts and replacing them with bridge structures. To date, Weld
County has failed or refused to provide any information to Plaintiffs concerning the sizing
of the bridges or other structural specifications other than to indicate that such bridges will
be very large and will allow the complete free flow of waters.
24. The purpose of the existing culverts (and proposed bridges) is to allow
waters to flow under Weld County Road 50 in a general southwest to northeast direction.
25. The existing 32" culverts, prior culverts of similar size, and Roads 13 and 50
themselves, have been in place at least 50 years.
26. The Road 50 Projects and existing culverts are located in draws or drainage
areas which receive water from adjoining lands and drain in a general southwest to
northeast direction. The waters from the Road 50 Projects do accumulate and meet at the
south side of Road 50 in a draw, flow north underneath Road 50 through an existing 32"
culvert, and continue to flow in a northeast direction through properties owned by some
of the Plaintiffs.
27. Approximately one-half mile northeast of the location of the Road 50 Projects,
the ravine ends and drops into the Consolidated Hillsborough Ditch located in the South
One-half (S'/%) of Section 31, Township 5 North, Range 67 West, Weld County, Colorado.
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28. During the irrigation season (generally defined as being from May 1 through
September 10 of every year), the Consolidated Hillsborough Ditch runs at or near capacity
in this location. Said Consolidated Hillsborough Ditch has been in its present location and
configuration and has run at capacity for more than 80 years.
29. Over the past 50 or more years, Road 50 and the existing 32" culverts have
acted as retention structures of rain fall, drainage, irrigation and other waters, and "held
back" the waters in the ravine to the South of Weld County Road 50. It is estimated that
the existing 32" culvert underneath Road 50 will pass approximately 12 cfs of water.
Existing Weld County Road 50 and the 32" culvert have been in place for such a long
period of time that they are no longer artificial structures, but are now natural structures
and any change and modification will create new or changed, as well as, artificial
conditions.
30. The Consolidated Hillsborough Ditch existed prior to construction of Road
50, and the size of the existing culvert(s) (and prior culverts) was installed to avoid
destruction of the ditch and subsequent flooding. Plaintiffs have detrimentally relied upon
existing Weld County Road 50 and the 32" culverts for purposes of slowing down the
velocity and decreasing the amount of volume of water that reaches the Consolidated
Ditch through said ravine for not less than 50 years.
31. Upon information and belief, the Plaintiffs allege that the Road 50 bridge
structures will allow waters up to approximately 80 cfs to flow unimpeded underneath Road
50 and into the Consolidated Hillsborough Ditch.
32. The increase from the existing 12 cfs to the estimated 80 cfs is a substantial
increase in both the volume as well as the velocity of water flowing into the ravine which
water will then enter the Consolidated Hillsborough Ditch approximately one-half mile to
the northeast of Road 50.
33. The substantial increase in the velocity and volume of waters will cause the
Consolidated Hillsborough Ditch to fail due to lack of carrying capacity and size in the
general location of where the ravine drops into the Consolidated Hillsborough Ditch.
34. Additionally, the increase in the volume and velocity of waters flowing in the
ravine north of the Road 50 Projects will cause substantial damage to property owned by
some of the Plaintiffs between said Road 50 and the Consolidated Hillsborough Ditch.
35. Furthermore, the break of the ditch will then cause substantial flooding of
properties owned by some of the Plaintiffs between the Consolidated Hillsborough Ditch
and the Big Thompson River which is located approximately one mile north of the
Consolidated Hillsborough Ditch and ravine confluence.
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36. On or about February 5, 1997, Plaintiffs' counsel notified Defendant's
counsel that the Road 50 Projects would cause a breach of the Consolidated Hillsborough
Ditch and result in flooding and substantial damage to properties of some of the Plaintiffs
and possible loss of life.
37. The Defendant, despite having knowledge of the destruction and life -
threatening situation that the Road 50 Projects would cause, elected to proceed with the
Road 50 Projects.
38. By letter dated March 18, 1997, Defendant informed Plaintiffs' counsel that
construction of the Road 50 Projects would begin on May 1, 1997.
39. Additionally, in a letter dated April 22, 1997, the Defendant was informed by
the mayor of the Town of Johnstown that construction of the proposed Road 50 Projects
would substantially and adversely affect the Town of Johnstown's storm water drainage
handling abilities, the Consolidated Hillsborough Ditch is an indispensable drainage facility
for the Town of Johnstown, changing historical drainage patterns drastically influence and
dramatically increase the potential for flooding the town and its citizens, and the Town of
Johnstown shared the concerns of Plaintiffs and supported the Plaintiffs' position.
FIRST CLAIM FOR RELIEF
(PRELIMINARY AND PERMANENT INJUNCTIONS)
40. Paragraphs 1 through 39 hereinabove are incorporated by reference.
41. Defendant has failed to perform adequate and necessary drainage and
hydrologic studies of the drainage basins and determine consequences of construction of
the Road 42 Project and Road 50 Projects.
42. If the Defendant proceeds with the Road 42 and Road 50 Projects, the
damages the Plaintiffs will suffer are immediate and irreparable. The potential injury and
damages are irreparable due to the fact that the Defendant may be immune from payment
of damages, potential damages could be in the millions of dollars, and the potential for loss
of life cannot be compensated.
43. The Plaintiffs do not have a plain, speedy or adequate remedy at law to
prevent irreparable loss and/or injury. Furthermore, any type of remedy at law other than
an injunction is doubtful.
44. As the existing roads and culverts have been in place for a long period of
time, and the public has not been damaged or inconvenienced, an injunction is appropriate
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as the Plaintiffs' potential damages and injuries are great. Additionally, an injunction would
maintain the status quo and balance the equities of the parties.
45. An injunction is necessary to prevent substantial injury and/or damage to
Plaintiffs.
WHEREFORE, Plaintiffs pray that this Court enter a preliminary and permanent
injunction against the Defendant to prevent construction of the Road 42 and Road 50
Projects with the larger sized culvert(s) and/or bridge structures.
SECOND CLAIM FOR RELIEF
(TRESPASS AND NUISANCE)
46. Paragraphs 1 through 45 hereinabove are incorporated by reference.
47. Plaintiffs Hillsborough and Extension are the owners of the ditches, water
decrees, and easements described in Paragraph 1. The remaining Plaintiffs are owners
of the properties described in Paragraph 2.
48. The proposed Projects will cause the discharge of water in a greater velocity
and volume upon Plaintiffs' properties and constitutes a trespass upon said properties and
a nuisance.
WHEREFORE, Plaintiffs pray for preliminary and permanent injunctions against the
Defendant prohibiting construction of the Road 42 and Road 50 Projects with the larger
culverts and/or bridges as they will cause a discharge of water that will trespass upon the
respective Plaintiffs properties and constitute a nuisance. Plaintiffs also request such
other and further relief as deemed just and appropriate, including an award to Plaintiffs of
costs, attorney fees and damages as may be proven.
THIRD CLAIM FOR RELIEF
(DECLARATORY JUDGMENT)
49. Paragraphs 1 through 48 hereinabove are incorporated by reference.
50. The Road 42 and Road 50 Projects will cause an increase in both volume
and velocities of waters substantially damaging or interfering with properties of Plaintiffs
and others.
51. The proposed Projects violate the Civil Law Rule Modified as adopted in
Colorado because they will cause the discharge of water in a manner and amount to cause
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more harm than formerly and overtax the capacity of the Consolidated and Extension
Ditch.
WHEREFORE, Plaintiffs request a declaratory judgment that construction of the
Road 42 and Road 50 Projects as contemplated by the Defendant will cause an increase
of volume and velocity of flowing waters, and Plaintiffs request that Defendant be enjoined
from constructing said projects, unless the volume and velocity of waters is maintained in
the present manner and amount. Plaintiffs also request such other and further relief as
deemed appropriate including an award to Plaintiffs of costs, attorney fees and damages
as may be proven.
FOURTH CLAIM FOR RELIEF
(DECLARATORY JUDGMENT - NEGLIGENCE AND RECKLESS CONDUCT)
52. Paragraphs 1 through 51 hereinabove are incorporated by reference.
53. The Defendant has actual knowledge of the fact that construction of the Road
42 and Road 50 Projects will cause the failure of ditch structures and cause substantial
damage and injury including possible loss of life.
54. The Defendant has a duty and responsibility to protect Plaintiffs and others,
and to construct the Road 42 and Road 50 Projects only in a safe and prudent manner.
55. Construction of the Road 42 and Road 50 Projects as contemplated by the
Defendant is done with intent, and the willful and wanton disregard of the rights and safety
of Plaintiffs and others. Such projects will cause substantial damage and injury to Plaintiffs
and others.
WHEREFORE, Plaintiffs request a finding and declaration by the Court that
construction by Defendant of the Road 42 and Road 50 Projects as contemplated
constitutes negligent and reckless conduct by the Defendant.
FIFTH CLAIM FOR RELIEF
(MANDATORY INJUNCTION)
56. Paragraphs 1 through 55 hereinabove are incorporated by reference.
57. As Defendant intends to commence construction on May 1, 1997, there may
be inadequate time for this Court to have a hearing and issue the requested Preliminary
and Permanent Injunctions.
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58. Alternatively, the Defendant may proceed with construction of the Projects
despite the Plaintiffs' requests for Preliminary and Permanent Injunctions.
WHEREFORE, in the event the Defendant elects to proceed with construction of
the Projects prior to a hearing upon the merits of this action, the Plaintiffs request that this
Court enter a Mandatory Injunction against the Defendant requiring the removal of any
structures constructed or installed as part of the Road Projects that discharge water in a
greater volume and/or velocity than historical and further requiring restoration in all
aspects such that there is no increase in the volume or velocity of waters as currently exist.
DATED: April 28, 1997
LIND, LAWRENCE & OTTENHOFF, LLP
Kenneth F. Lind, #779
1011 Eleventh Avenue
P.O. Box 326
Greeley, CO 80632
Telephone: (970) 353-2323
Addresses of Plaintiffs:
The Consolidated Hillsborough Ditch Company
612 Charlotte Street
Johnstown, CO 80534
The Hillsborough Extension Ditch Company
612 Charlotte Street
Johnstown, CO 80534
Esther Binder and Dean Binder
Trustees of the Floyd Binder Trust
9819 WCR 46%
Milliken, CO 80543
George W. and E. Jeane Linger
24856 WCR 15%
Johnstown, CO 80534
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Lucky 2 Enterprises, Ltd., a Colorado corporation
2910 W. 12th Street
Greeley, CO 80631
Jacob Kammerzell, Trustee of the Jacob Kammerzell Trust
25090 WCR 15
Johnstown, CO 80534
Alan Rieder, Larry Rieder and Mardell Hunter,
Trustees of the Earnest C. Rieder and Louise E. Rieder Trust
7525 WCR 50
Johnstown, CO 80534
Henry R. Sauer
6681 WCR 50
Johnstown, CO 80534
Lydia Stroh, individually and as
Trustee of the Albert Stroh Trust
20969 WCR 17
Johnstown, CO 80534
Frank Wind
4816 Broadmoor Ct.
Fort Collins, CO 80525
Arlene Wind
4816 Broadmoor Ct.
Fort Collins, CO 80525
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