HomeMy WebLinkAbout982426.tiff V.ELD COUNTY
DISTRICT COURT, COUNTY OF WELD, STATE OF COLJA3O' " '
Case No. 98 CV 1182 Divisioir ITC -9 'v( 8: 34
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SUMMONS TO THEPC',h.7�
CLIFFORD DYER
Petitioner,
vs.
WELD COUNTY DEPARTMENT OF HEALTH and DIRECTOR JOHN PICKLE
(in his official capacity) ,
Respondents.
THE PEOPLE OF THE STATE OF COLORADO,
TO THE RESPONDENTS ABOVE NAMED, GREETINGS:
You are hereby summoned and required to file with the Clerk of
this Court an Answer to the Petition for Judicial Review within
twenty (20 ) days after service of this Summons upon you. If you
fail to do so, judgment by default will be taken against you for
the relief demanded in the Petition for Judicial Review.
If service upon you is made outside the State of Colorado, or
by publication, or if a copy of the Petition for Judicial Review is
not served upon you with the summons, you are required to file
your Answer to the Petition for Judicial Review within thirty (30)
days after service of this Summons upon you.
This is an action as is more fully described in the Petition
for Judicial Review filed herein, a copy of which is attached
hereto.
Dated: December -7 , 1998 .
Respectfully submitted,
C51' L
ROBERT E. RAY #6197
Attorney for Petitioner
1122 9th Street, #103
Greeley, CO 80631
Telephone: (970) 351-6083
Telefax: (970) 356-1921
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\II\ / 982426
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DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO
Case No. 98 C V / / g a Division
PETITION FOR JUDICIAL REVIEW
CLIFFORD DYER
Petitioner,
vs.
WELD COUNTY DEPARTMENT OF HEALTH and DIRECTOR JOHN PICKLE
(in his official capacity) ,
Respondents.
COMES NOW the Petitioner, Clifford Dyer, by and through his
attorney, Robert E. Ray, and hereby petitions this Court for
judicial review of a "Cease and Desist Order" pursuant to C.R.S.
25-10-106 ( 1) (k) . As grounds therefore, the Petitioner states as
follows:
1. John Pickle is Director of the Weld County Department of
Health and is a Health Officer. This petition is brought against
him in his official capacity.
2 . John Pickle and the Weld County Department of Health are
the proper respondents in this action.
3. Pursuant to C.R.S. 25-10-106 ( 1) (k) , jurisdiction and venue
are proper in the Weld County District Court since the system at
issue is located in Weld County, Colorado.
4 . On November 25, 1998, John Pickle, acting in his official
capacity as Health Officer and Director of Weld County Department
of Health issued a Cease and Desist Order against the Petitioner,
Clifford Dyer (d/b/a Dyerco) . Attached hereto, and incorporated
herein as if fully set forth is the Cease and Desist Order
(Attachment A) .
5. The Cease and Desist Order required that the Petitioner
"cease and desist from the use of the structures at 6310 West 10th
St. Greeley, Colorado, in the NINE h of S 9,T5N R66W of the 6th
PM, Weld County, Colorado for any from of human habitation unless
and until the structures are connected to and being serviced by an
individual sewage disposal system designed, approved and installed
in accordance with the Weld County Individual Sewage Disposal
System Regulations or connected to community sewer system" .
IS'. - ,
6. The petitioner owns the parcel of real estate at issue,
and is the proper party to bring this action.
7 . Said Cease and Desist Order threatens immediate and
irreparable harm to the petitioner and the five businesses located
at this address. If the Cease and Desist Order remains in effect
the five businesses will be closed and approximately twenty people
will lose their jobs.
8. The petitioner was denied a full opportunity to be heard
at the hearing on November 23, 1998.
9. The present system is in compliance and the Cease and
Desist Order, is arbitrary and capricious, is a denial of statutory
right, contrary to constitutional right, power, privilege or
immunity, in excess of statutory jurisdiction, authority, purposes
or limitations, not in accord with the procedures or procedural
limitations of administrative procedure under law, an abuse or
clearly unwarranted exercise of discretion, based upon findings of
facts that are clearly erroneous on the whole record, unsupported
by substantial evidence when the record is considered as a whole
and is otherwise contrary to law.
WHEREFORE, the petitioner requests that this Court review the
Cease and Desist Order of November 25, 1998 and set it aside for
the reasons stated above, plus award costs, interests, attorney
fees, damages and such other and further relief as is deemed just
and proper, including injunctive relief.
Respectfully submitted this 7 day of December, 1998.
ROBERT E. RAY #6197
Attorney for Petitioner
1122 9th Street, #103
Greeley, CO 80631
Telephone: (970 ) 351-6083
Telefax: (970) 356-1921
12/04/1998 07: 46 9703564338 DVERCO FABRICATORS PAGE 02
rirtiPtC(4111.11H4P DEPARTMENT OF HEALTH
1517 16TH AVENUE COURT
GREELEY, CO 80631
1 ADMINISTRATION (970) 353-0586
C. HEALTH PROTECTION (970)
353-0635
COMMUNITY HEALTH (970) 353-0639
FAX (970) 356-4966
COLORADO RECEIVED
DEC - 4 1998
WELD COUNTY HEALTH DEPARTMENT
IN RE: )
Clifford Dyer )
(d/b/a Dyerco) ) CEASE AND DESIST ORDER
6086 West 10th St. )
Greeley, CO )
80634 )
HAND DELIVERED
Respondent
THIS MATTER came before the Weld County Health Officer, John Pickle pursuant to C.
R. S. § 25-10-106 AND Weld County Ordinance No. 56,AND 9E on August 3, 1998 and continued
to November 23,1998. Testimony was presented by Jeff Stoll, Laurie Exby and Connie O'Neill,
Environmental Protection Services. The Respondent was present and testified and his engineer,
Steve Wernsman,P.E. was given notice and testified. A number of documents were submitted and
their acceptance recited into the record by Lee. D. Morrison, Assistant Weld County Attorney who
advised the Health Officer. The Health Officer, upon considering the statements of witnesses,
having considered the reports herein, and being otherwise advised in the premises, DOTH FIND
AND ORDER:
1. That the Respondent was properly served with a Certified Letter, giving 48 hours
notice of this hearing and has been adequately advised of the condition which is the subject of this
hearing.
2. That the Respondent has violated the Weld County Individual Sewage Disposal
System Ordinance 9E § 3.17 A., no discharge allowed to State waters by allowing a discharge to
ground water, § 3.17 B., maintaining commercial facilities without adequate sewage facilities,
constructing a cess pool in the form of the pit § 3.17 D., all without an engineer design or approval
by the Board of Health.
3. That the Respondent has created and continues to allow to exist a regularly recurring
condition which is a nuicanr . In particular,the Respondent has failed to comply with § 3.1 and of
the Individual Sewage Disposal System Regulations which requires that the structure maintained
as a residence or place of work by the Respondent must contain an adequate, convenient, sanitary
toilet connected to a sewage disposal system in good working order. 7
12/04/1998 07: 45 9703564338 Z ERGO FABRICATORS PAGE 03
4. The Respondent has previously exhibited a pattern and practice of not obtaining a
complete permit nor obtaining an engineer's design. The Respondent has not shown that there is a
valid permit for construction or repair of the system.A permit in 1983 permit was issued but never
finaled and was invalidated for inaction in December of 1987. Additionally, Respondent has
continued to modify the maze of tubes and pipes under the property for which neither he nor his
engineer can identify or plat. In the absence of a report or permit showing the nature and extent of
the system, the Health officer must find that there is a violation.
5. It appears that any approval of a permit will require consideration of the availability
of sewer service from the City of Greeley community sewer is available with 400 feet of the serviced
structures.The applicant must submit evidence to show that the sewer is unavailable because the cost
of sewer relative to the septic system are financially prohibitive.
•
THEREFORE, IT IS ORDERED that the Respondent cease and desist from the use of the
structures at 6310 West 10th St. Greeley, Colorado, in the NV:NE 'A of§ 9,T5N R66W of the 6th
PM, Weld County, Colorado for any form of human habitation unless and until the structures are
connected to and being serviced by an individual sewage disposal system designed, approved and
installed in accordance with the Weld County Individual Sewage Disposal System Regulations or
connected to community sewer system.
BE IT FURTHER ORDERED,that this Order will be stayed for seventy days provided the
Respondent does the following:
A septic permit for a commercial use must be obtained by submitting an application
accompanied by an engineered drawing of the existing system along with a report from a registered
professional addressing the adequacy of the existing system and the addition of the floor drains and
trailer connections and providing an opinion that the system functions in accordance with the
regulations taking into account any other pipes or drainage structures within the same property.Any
designs for any necessary corrections shall be included in the engineer's report.The complete permit
application, along with cost breakdowns to address the issues in paragraph 5 herein, shall be
submitted to the Weld County Health Department by January 19, 1999 in order to be heard by the
Board of Health at the January 26, 1999 meeting.
, Director of
Weld County Department of Health,
Health Officer
NOTE: THIS ORDER MAY BE APPEALED TO THE WELD DISTRICT COURT,9th Avenue
and 9th Street, GREELEY, COLORADO IF A PETITION IS FILED WITH THE DISTRICT
COURT WITHIN TEN DAYS OF THIS ORDER
NOTE: VIOLATION OF THIS ORDER CONSTITUTES A CLASS I PETTY OFFENSE
PUNISHABLE BY A FINE OF NOT MORE THAN$500.00 OR SIX MONTHS IN JAIL.
jS AL/.nom,
12/04/1998 07: 46 9703564338 DYERCO FABRICATORS PAGE 04
STATE OF COLORADO )
)ss.
COUNTY OF WELD )
SUBSCRIBED • ► •• ' I • ore me this a day of tatz,e.c/tt 1998,
John Pickle, Weld Count f .' ..15111tt
CAROL A. WITNESS my hand and official seal.
• HARDING
B COO*
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My,fbmmrMb �A nLONmC,A002 Notary Public
•
cc: Lee Morrison, Assistant Weld County Attorney
Steve Wernsman, Wernsman Engineering, Inc.
Greg Thompson, City of Greeley, Community Development
Bob Grubey, Colorado Department of Transportation
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