HomeMy WebLinkAbout951657.tiffDISTRICT COURT, WELD COUNTY, COLORADO
Case No. 95 -CV -E1, Division IV
MOTION TO INTERVENE
THE VILLA AT GREELEY, INC.,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO,
Defendants,
MARVIN HOPPER,
Intervenor.
COMES NOW Intervenor Marvin Hopper, by and through his
undersigned attorneys, and does hereby move the Court for
permission to intervene in the within case as a Defendant, and as
grounds therefore would state unto the Court as follows:
1. Intervenor's Motion is filed pursuant to the provisions
of C.R.C.P. 24(a) and/or (b).
2. Intervenor is a registered elector of Weld County,
Colorado and is the registered elector designated to represent the
signers of certain initiated petitions which resulted in the
placement upon the ballot, and subsequent adoption by the
registered electors of Weld County, Colorado, of an amendment to
Article XV, Section 15-5 of the Home Rule Charter of Weld County,
Colorado.
3. As a taxpayer and resident of Weld County, Colorado,
Intervenor has legal standing to intervene in the within action.
Wimberly v. Ettenberc, 570 P.2d 535 (1977); Nichol? v. E-470 Public
Highway Authority, 19 B.T.R. 831 (Colo. 1995).
4. Pursuant to the provisions of C.R.C.P. 24(a), Intervenor
claims an interest relating to the transaction which is the subject
of the action and is so situated that the disposition of the action
will as a practical matter impair or impede his ability to protect
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that interest, and the interest of all other electors of Weld
County, because Intervenor's interests are not adequately
represented in this matter by the pleadings filed to date by the
remaining Defendants.
5. The "Response to Plaintiff's Motion for Supplementary
Declaratory Orders" filed by the existing Defendants in this matter
is devoid of any defense or legal argument whatsoever which would
aid the Court in the determination of this matter.
6. Meritorious legal arguments which are in opposition to
Plaintiff's request do exist, and have been pointed out to
Defendant in writing, which legal arguments in defense are in fact
consistent with the Court's previous Order entered in this case.
Notwithstanding the above facts, Defendants have failed and refused
to raise or call such defenses to the attention of this Court.
7. All meritorious defenses and legal arguments which are
relevant for the Court's consideration in this matter are raised in
the attached Intervenor's Response to Plaintiff's Motion for
Supplemental Declaratory Orders.
WHEREFORE, Intervenor prays for an order granting its Motion
to Intervene and for the Court to accept for filing and
consideration the attached intervenor's Response to Plaintiff's
Motion for Supplemental Declaratory Orders.
Respectfully submitted this Z 3 day of June, 1995.
HAYES, PHILLIPS, MALONEY &
HADDOCK, P.C.
By:
J n E. Hayes, #5239
50 17th Street, Su_te 450
Denver, CO 80202-1517
(303) 825-6444
Intervenor's address:
3656 Weld County Road 20 1/2
Longmont, Colorado 80504
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CERTIFICATE OF SERVICE rr
The undersigned hereby certifies that on the G3/1d day of
June, 1995, a true and correct copy of the within MOTION TO
INTERVENE was served on the following as follows:
Bruce T. Barker
Weld County Attorney
P.O. Box 1948
915 Tenth Street
Greeley, CO 80632
Kim Robert Houtchens
1007 Ninth Avenue
Greeley, CO 80631
[By facsimile and regular mail]
[By regular mail]
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DISTRICT COURT, WELD COUNTY, COLORADO
Case No. 95 -CV -61, Division IV
ORDER REGARDING MOTION TO INTERVENE
THE VILLA AT GREELEY, INC.,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO,
Defendants,
MARVIN HOPPER,
Intervenor.
THE COURT, having fully reviewed Intervenor's Motion to
Intervene and being fully advised in the premises, does hereby
GRANT same.
DONE this day of , 1995.
BY THE COURT:
District Court Judge
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DISTRICT COURT, WELD COUNTY, COLORADO
Case No. 95 -CV -61, Division IV
INTERVENOR'S RESPONSE TO PLAINTIFF'S MOTION FOR SUPPLEMENTAL
DECLARATORY ORDERS
THE VILLA AT GREELEY, INC.,
Plaintiff,
v.
BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO,
Defendants,
MARVIN HOPPER,
Intervenor.
Intervenor Marvin Hopper, by and through his undersigned
attorneys, hereby submits his Response to Plaintiff's Motion for
Supplemental Declaratory Orders:
I. FACTS OF THE CASE
On November 23, 1994, Intervenor and others notified the Clerk
and Recorder of Weld County, Colorado, of the intent of said
Petitioners to submit a proposed amendment to the Home Rule Charter
of Weld County. On December 5, 1994, the Board of County
Commissioners of Weld County adopted a resolution approving the
ballot title for said petition. Subsequently, on January 25, 1995,
Petitioners submitted signed petitions calling for an election to
amend the home Rule Charter of Weld County to the Weld County Clerk
and Recorder.
Only after submission of the petitions above -described,
specifically on February 7, 1995, did Plaintiff file a Complaint
for Declaratory Judgment in the instant action. Two (2) days after
the date Plaintiff filed said civil action, the Clerk and Recorder
of Weld County submitted, by certified mail to Intervenor and the
other representative of signers, a "Statement of Insufficiency in
Petition Signatures," a copy of which is attached hereto as
Exhibit A.
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Thereafter, on February 13, 1995, Defendant County filed an
Answer to Plaintiff's Complaint, in which Answer, which appears in
the Court's file, Defendant admitted all allegations of Plaintiff's
Complaint. The Court thereafter, on February 13, 1995, executed an
"Order Granting Motion for Judgment on the Pleadings and
Declaratory Judgment."
Subsequently, and in compliance with all state constitutional,
state statutory, and county home rule charter provisions,
Intervenor and others submitted amended petitions to the Weld
County Clerk and Recorder, which petitions were deemed sufficient
by letter of March 1, 1995 (a copy of which is attached hereto
Exhibit B). Thereafter, on March 8, 1995, the Board of County
Commissioners adopted a resolution "submitting to the registered
electors at a special election of the County of Weld, State of
Colorado, an amendment to the Home Rule Charter," a copy of which
is attached hereto as Exhibit C.
On June 13, 1995, 24,439 total votes were cast, of which
15,151, or 62.3%, voted to amend the Weld County Home Rule Charter
to contain the language cited by Plaintiff in paragraph 4 of its
"Motion for Supplementary Declaratory Orders."
Upon information and belief, on June 14, 1995, one day after
the special election above -described, Plaintiff filed its "Motion
for Supplementary Declaratory Orders." The undersigned received,
by facsimile copy at 4:30 p.m., on June 22, 1995, the "Response to
Plaintiff's Motion for Supplementary Declaratory Orders" prepared
by the Defendants. Contemporaneously herewith, Intervenor has
filed his Motion to Intervene, and presents his legal arguments
herewith.
II. ISSUE
The issue for resolution by the Court in this matter is
whether or not the provisions of Article XV, Section 15-5 of the
Weld County Home Rule Charter are applicable to the project
proposed by Plaintiff and previously approved by the Defendant
Board of County Commissioners on December 8, 1993.
III. SUMMARY OF ARGUMENT
The provisions of Article XV, Section 15-5 of the Weld County
Home Rule Charter, adopted by the electors of Weld County on
June 13, 1995, are applicable to Plaintiff's proposed project in a
manner consistent with the Court's previous Order Grantinc Motion
for Judgment on the Pleadings and Declaratory Judgment entered
February 13, 1995.
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IV. DISCUSSION
Plaintiff asserts, and Defendant appears to acquiesce in the
assertion, that the granting of the Court's previous order relating
to vested rights precludes any further action affecting Plaintiff's
proposed project. In this assertion, Plaintiff and Defendant are
incorrect.
There are two reasons why the Plaintiff's assertions are not
accurate. These reasons are: (1) the provisions of the Colorado
"Vested Property Rights Act," C.R.S. 24-68-101, specifically allow
for subsequent modification of "vested property rights" in a "site
specific development plan" upon the payment of "just compensation"
as defined in C.R.S. 24-68-105(1)(c); and (2) the "pending
ordinance doctrine" precludes Plaintiff's reliance upon any common
law vesting of rights.
With regard to the first reason cited above, it is the belief
of Intervenor that the form of "Order Granting Motion for Judgment
on the Pleadings and Declaratory Judgment" which the Court signed
on February 13, 1995, was not prepared by the Court. In
paragraph 3 of that Order, two of the three exceptions stated in
C.R.S. 24-68-105 are listed as being applicable to the within case.
Conspicuous by its absence is the following language from
subpart (c) which is one of three separate, independent, and
distinct exceptions stated in said Section 24-68-105:
or (c) to the extent that the affected property owner
receives just compensation for all costs, expenses, and
liabilities incurred by the land owner, after approval by
the governmental entity, including but not limited to,
costs incurred in preparing the site for development
consistent with the site specific plan, all fees paid in
consideration of financing, and all architectural,
planning, marketing, legal and other consultants' fees
incurred after approval by the governmental entity,
together with interest thereon at the legal rate until
paid. Just compensation shall not include any diminution
in the value of the property which is caused by such
action.
(As amended in S.B. 126).
Intervenor does not dispute, as indeed he may not, that
Plaintiff has acquired vested rights under the Colorado Vested
Rights Act. However, the vested rights which Plaintiff has
acquired are subject to termination based upon the payment of just
compensation as defined in C.R.S. 24-68-105(1)(c). Plaintiff's
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assertion that said subpart of the statute is not applicable to
this project is simply not an accurate or legally supportable
position, given the fact that the statutory language quoted above
by the Intervenor is as much a part of the statutes of the State of
Colorado as is any portion of the statute which was presented to
this Court by Plaintiff as support for its position.
The second reason stated above, application of the pending
ordinance doctrine, is equally applicable to this situation. The
pending ordinance doctrine is clearly recognized in the State of
Colorado, having been recognized in the cases of Crittenden v.
Hasser, 585 P.2d 928 (Colo. App. 1978), and by the Tenth U.S.
Circuit Court of Appeals in National Advertising Company v. City
and County of Denver, 912 F.2d 405 (10th Cir., 1990). The pending
ordinance doctrine is set out fully in 8 McQuillin, Mun. Corp.,
§ 25.155 (3d Ed.) as follows:
A municipality may properly refuse a building permit for
a land use repugnant to a pending zoning ordinance, even
though application is made when the intended use conforms
to existing regulations, and even though the application
is made a considerable time before the enactment of the
pending ordinance, provided the municipality has not
unreasonably or arbitrarily refused or delayed the
issuance of a permit, and provided the ordinance was
legally 'pending' on the date of the permit application.
For a zoning change to be 'pending' within the pending
ordinance rule, the change need not be before the city
council, but the appropriate administrative department of
the city must be actively pursuing it.
The Colorado Supreme Court has recently granted certiorari in
a case to determine whether or not the Court of Appeals has
properly applied that doctrine as above stated. City of Aspen v.
Marshall, No. 94SC650, cert. granted April 10, 1995.
To the best of the knowledge of Intervenor, based upon
discussions with County personnel and a written recuest to be
notified when and if building permits are applied for, no building
permit has been applied for by Plaintiff as of the date of filing
this Intervenor's Response. Since there is no buildinc permit
application pending, there can be no question of common law vested
rights, since those rights arise by virtue of reliance upon a
lawfully issued permit. P -W Investments, Inc. v. City of
Westminster, 655 P.2d 1365 (Colo. 1982); Van Sickle v. Roves, 797
P.2d 1267 (Colo. 1990).
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There is also a recognized and extremely significant
difference between the right to the issuance of a permit and the
right to make use of that permit once issued in light of newly
enacted legislation. As the Colorado Court of Appeals has made
clear in Gramiger v. County of Pitkin, 794 P.2d 1045 (Colo. App.
1989) :
However, the fact that a landowner may be entitled
to the issuance of a permit does not necessarily entitle
him to exercise the rights granted by that permit in the
face of subsequently adopted legislation. It is only if
a permittee's rights have become 'vested' under the
permit before the legislation becomes effective, that the
permittee may be continued to exercise those rights; mere
issuance of a permit, without more, does not cause such
a vesting.
(citations omitted).
Hence, the question the whether a landowner is
entitled to have a permit issued under Denver v. Denver
Buick, is a question substantially different from the
question whether the permittee's rights have vested
within the meaning of Cline v. Boulder, 450 P.2d 335
(1969).
What will be obvious to the Court is that the only type of
vested rights which Plaintiff could assert are those granted to him
by all of the provisions of the Colorado Vested Rights Act,
C.R.S. 68-24-101, et sea. What will also be obvious to the Court
upon review of the chronology of this matter as stated under
Section I above, is that the amendment to the County's Home Rule
Charter was clearly pending prior to the time that Plaintiff sought
relief from this Court. It is obvious from any facial review of
the pleadings in this matter that this Court was not advised of the
pending nature of the Charter amendment, and it is also obvious
that the timing of the filing of Plaintiff's Complaint was
motivated solely by the fact that the Charter amendment was indeed
pending.
Because the Plaintiff has not applied for any building
permits, he can make no reliance upon any vesting of rights to
defeat the Charter amendment which was pending but which is now the
operative law in Weld County. Similarly, under a complete
application of the Vested Rights Act, Plaintiff's vested rights
will be protected by a payment of "just compensation" when and if
the voters of Weld County refuse to approve the application
Plaintiff has made for the siting of a pre -parole facility.
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V. CONCLUSION
For all of the reasons stated herein, the Court should deny
Plaintiff's Motion for Supplementary Declaratory Orders, and should
amend its previous Order granting Motion for Judgment on the
Pleadings and Declaratory Judgment by adding as paragraph 3(d)
thereof the provisions of C.R.S. 24-68-105(1)(c), as amended.
Respectfully submitted this
Z3
day of June, 1995.
HAYES, PHILLIPS,
HADDOCK, P.C.
By:
MALONEY &
E. Napes, #5239
0 17th Street, Suite 450
nver, CO 80202-1517
(303) 825-6444
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the .2✓?,Ad day of
June, 1995, a true and correct copy of the within INTERVENOR'S
RESPONSE TO PLAINTIFF'S MOTION FOR SUPPLEMENTAL DECLARATORY ORDERS
was served on the following as follows:
Bruce T. Barker
Weld County Attorney
P.O. Box 1948
915 Tenth Street
Greeley, CO 80632
Kim Robert Houtchens
1007 Ninth Avenue
Greeley, CO 80631
[By facsimile and regular mail]
[By regular mail]
1/2qa.y 421v\4 le ;
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