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Home My WebLink About980660.tiff COURT OF APPEALS, STATE OF COLORADO Case No. r'r t"" _11 P.: 55 Lower Court Case No. 97 CV 340, Seeking review of decision by Board of Weld Cour�t* Commissioners regarding Z-PAD 79. OL.t TO IT: NOTICE OF APPEAL FROM THE DISTRICT COURT, WELD COUNTY, THE HONORABLE JUDGE WILLIAM L. WEST RICHARD L. WILSON AND ELIZABETH A. WILSON Plaintiff-Appellant v. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO Defendant-Appellee Plaintiffs Richard L. Wilson and Elizabeth A. Wilson file this appeal on their own behalf, pursuant to C.A.R. 3, and within 45 days pursuant to C.A.R. 4. NATURE OF THE CASE: WHEN DOES THE CLOCK BEGIN TO RUN FOR APPEAL? Plaintiffs requested a permit to place an additional accessory dwelling to the farm on their 240 Acre property. This request was referred by Weld County Planning Department to the Board of Weld County Commissioners for a hearing on April 30, 1997. Discussion at the hearing included admission by Commissioner Baxter that these permits had always been issued in the past, and that perhaps they needed to change the ordinance. There was much discussion and the voting was not unanimous. Notice of final decision to deny the permit and the reasoning therefore was mailed to Plaintiffs in a revised RESOLUTION on May 16, 1997. C.R.C.P. 106(b) requires that any Rule 106(a)(4) action be commenced within 30 days of a final decision and this appeal is focused on determining the point at which the 30 day clock begins to run when a decision is not timely mailed. Appellants contend that the 30 days begin to run at the time of the mailing of the final decision, and that the original 106(a)(4) action should be tried on its merits, for several reasons including, but not limited to: 1. The discussion and voting of the Commissioners at the April 30, 1997, hearing gave no clear, concise, appealable reasons for the denial, and therefore Plaintiffs needed written documentation in order to formulate an appeal. 2. The final decision was obviously not signed on the day of the hearing, because all Commissioners were present on April 30, 1997, yet Commissioner Barbara J. Kirkmeyer was "excused"on the day of signing. 3. The Defendant has admitted in letter sent to Plaintiffs on May 22, 1997, that there is 980660 1E 03/e9/9t 1 ) C/9 PtOoltho no other written decision than the one mailed to Plaintiffs on May 16, 1997. 4. By not mailing the written resolution is a timely manner, the Commissioners precluded the Plaintiffs from having adequate knowledge and time to prepare an appeal. Plaintiffs believe this to be contrary to the intent of the law and in violation of the Plaintiffs' rights to fair and full use of the judicial system, and are requesting the court to rule on this point. ORDER BEING APPEALED, DA I E OF ORDER AND DATE OF MAILING: . Plaintiffs' MOTION FOR A NEW TRIAL OR , IN THE ALTERNATIVE AN AMENDMENT OF FINDINGS AND AN AMENDMENT OF JUDGMENT was denied on January 15, 1998 in an ORDER RE: MOTION FOR NEW TRIAL OR AMENDMENT OF JUDGMENT. This Court has jurisdiction to review this matter pursuant to C.A.R. 3 and 4. ADJUDICATION OF THE ISSUES: Decision of timeliness of 106(a)(4)action must be decided before the actual Complaint can be argued on its merits. This appeal concerns not the merits of the 106 action, but the question of when the 30 day clock begins to run when notice of decision is NOT timely mailed. Decision rendered by lower court in ORDER RE: MOTION FOR NEW TRIAL OR AMENDMENT OF JUDGMENT is final for purposes of this appeal. DATE THE DECISION WAS ENTERED: Decision in above mentioned order was entered on January 15,1998. EXTENSIONS OF TIME: No extensions of time for filing any motions for post-trial relief were requested. POST TRIAL RELIEF Post-trial MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, AN AMENDMENT OF FINDINGS AND AN AMENDMENT OF JUDGMENT was entered on November 12, 1997, timely pursuant to C.R.C.P. 59. Defendant entered a RESPONSE TO PLAINTIFFS MOTION FOR A NEW TRIAL OR , IN THE ALTERNATIVE, AN AMENDMENT OF FINDINGS AND AN AMENDMENT OF JUDGMENT ON DECEMBER 1, 1997. PLAINTIFFS entered a REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR A NEW TRIAL OR, IN THE ALTERNATIVE, AN AMENDMENT OF FINDINGS AND AN AMENDMENT OF JUDGMENT ON December 15, 1997. ORDER RE: MOTION FOR NEW TRIAL OR AMENDMENT OF JUDGMENT a L denying Plaintiffs' MOTION was entered on January 15, 1998. NOTICE OF INTENT FILED WITH DISTRICT COURT Copies of the NOTICE OF INTENT TO APPEAL filed with the District Court, Weld County,Colorado, and certificate of service on the Board of County Commissioners and their attorney, Bruce Barker, dated March 2, 1998 are attached to this letter. No extension of time to file an appeal was requested. ISSUES TO BE RAISED ON APPEAL: 1. Did the trial Court err in dismissing Plaintiffs' original Complaint as being out of time, when it was filed within 30 days of the final Resolution mailed to Plaintiffs by Defendant on May 16, 1997? 2. Is the intent of the law to allow the parties the full 30 day period to prepare an appeal? 3. Is it the intent of the law for appellants to have a written, appealable order from which to formulate an appeal? 4. Did the trial court exceed discretion in determining that the changes on the revised RESOLUTION were merely"clerical" when in fact the Defendant has no other document to submit to the Court? 5. Did the trial court exceed discretion in determining that the changes on the revised RESOLUTION were merely clerical even though they changed the intent of the RESOLUTION from "Planning's concerns"to "the board's"concerns? 6. Did the trial court exceed discretion in determining that "the original resolution was sent to them (the Plaintiffs) on May 5, 1997" when in fact there is no documentation to that effect? 7. Were Appellants' Constitutional rights to due process violated by Appellee's failure to provide timely written notice of appealable issues? TRANSCRIPTS: The Plaintiff intends to use the certified transcript from the April 30, 1997 hearing. A certified copy of this document, from a hearing lasting approximately 1.5 hours, was ordered from the Clerk to the Weld County Commissioners by Plaintiffs and a copy should be available at the trial court. PREARGUMENT CONFERENCE: No preargument conference is requested. 3 NAMES OF COUNSEL: The Appellants are appearing pro se, with a mailing address of: 6707 WCR 19, Ft. Lupton, Colorado 80621. The Defendant is represented in this action by Bruce Barker, #13690, Weld County Attorney, 915 10th Street,P.O. Box 1948, Greeley, Colorado 80632. Respectfully, —Ze z,,%Yt 4 9h.4 — Richard L Wilson and Elizabeth A. Wilson 6707 WCR 19 Ft. Lupton, Colorado 80621 303-655-0707 APPENDIX 1. Copy of the ORDER RE: MOTION FOR NEW TRIAL OR AMENDMENT OF JUDGMENT, dated January 15, 1998. 2. Copy of ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, dated October 28, 1997. 3. Copy of affidavit of Carol Harding, dated July 14, 1997, stating "and a new Resolution was signed and mailed to the Wilsons on or about May 15, 1997." Includes copy of letter, dated May 22, 1997, from Carol Harding, Office Manager for the Defendant, stating that the original document was not saved, and document with changes marked and noted in margins. 4. Copy of original COMPLAINT PURSUANT TO RULE 106 C.R.C.P. dated Monday, June 16, 1997. 6. Copy of Revised Resolution with cover letter dated May 15, 1997, and envelope dated May 16, 1997. 7. Stamped copy of NOTICE OF INTENT TO APPEAL and DESIGNATION OF RECORD from the District Court, Weld County, Colorado, dated March 2, 1998. 8. Copy of CERTIFICATE OF MAILING showing proof of service of this NOTICE OF APPEAL dated March 2, 1998. CERTIFICATE OF MAILING I certify that a true and correct copy of the foregoing NOTICE OF APPEAL FROM THE DISTRICT COURT, WELD COUNTY, HONORABLE JUDGE WILLIAM L WEST, with attachments, was placed in the United States mail, postage prepaid, or hand delivered, addressed to: DISTRICT COURT, WELD COUNTY, COLORADO HONORABLE JUDGE WILLIAM L. WEST 9th Avenue and 9th Street Greeley, Colorado 80631 Bruce Barker Weld County Attorney 915 Tenth Street P.O. Box 1948 Greeley,Colorado 80632 The Board of County Commissioners of Weld County, Colorado 915 Tenth Street P.O. Box 758 Greeley, Colorado 80632 OFFICE OF THE ATTORNEY GENERAL STATE OF COLORADO APPELLATE DIVISION 1525 Sherman Street Denver,Colorado 80202 Dated this e2 n a Day of March, 1998. 5 CintI Y cCCLO. JAN 15 '98 DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO ' ` Case No. 97 CV 340 Division I ORDER RE: MOTION FOR NEW TRIAL OR AMENDMENT OF JUDGMENT ELIZABETH ANNE WILSON and RICHARD LEE WILSON, Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, Defendant. THIS MATTER comes before the Court on Plaintiffs' Motion for a New Trial or, in the Alternative, an Amendment of Findings and an Amendment of Judgment. The Court, having reviewed the motion, response, and reply, HEREBY ORDERS: Plaintiffs' Motion is DENIED. DATED: JAN 1 5 1998 Willia . West District Court Judge FILED IN DISTRICT COURT. wrLe C C).. COLO. DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO OCT 2 $ '97 Case No. 97 CV 340 Division I + .. , aka ORDER GRANTING DEFENDANT'S MOTION TO DISMISS ELIZABETH A. WILSON and RICHARD L. WILSON, Plaintiffs, v. BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, Defendant. THIS MATTER comes before the Court on Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment. Defendant argues that Plaintiffs Complaint was not timely filed within thirty days as required by C.R.C.P. Rule 106(b). In the spring of 1997, the Plaintiffs applied with the Weld County Board of County Commissioners ("Board") for a zoning permit. The Board considered and denied the Plaintiffs' application during a public hearing on April 30, 1997. The Board also adopted a resolution to the same effect on April 30, 1997. This resolution was mailed to the Plaintiffs. While signing that resolution, the Board discovered a clerical error and therefore signed a revised resolution instead. A copy of this was mailed to Plaintiffs on May 16, 1997. Plaintiffs subsequently filed suit pursuant to C.R.C.P. Rule 106(a)(4) on June 16, 1997. C.R.C.P. Rule 106(b) requires that any Rule 106(a)(4) appeal must be filed within 30 days after the final decision of the body being challenged. In this case, the final decision was made at the April 30, 1997 hearing. Plaintiffs were at the hearing and had notice of the decision. Plaintiffs were also given plenty of notice of the decision as the original resolution was sent to them on May 5, 1997. The second mailing, on May 16, 1997, reflected the same decision, which had been made on April 30, 1997; the only difference in the two resolutions were that the word "staffs" was changed to "Board of County Commissioners'" Thus, the Plaintiffs had notice of the April 30, 1997 decision and were required to file suit within 30 days of that decision. Second, no separate constitutional remedy exists for the plaintiffs at law. The Court cannot infer a remedy from the state constitution when the legislature has provided a reasonable and adequate statutory remedy. Board of County Comm'rs v. Sundheim, 926 P.2d 545, 552-553 (Cob. 1996). In this case, the Colorado state legislature has provided an adequate remedy in Rule 106(a)(4). Thus, there can be no separate state constitutional claim. The same is true for a federal constitutional remedy. Id. Again, the legislature has provided a reasonable and adequate statutory remedy for constitutional violations under 42 U.S.C. §1983. Plaintiffs have not pled this. IT IS ORDERED: Defendant's Motion to Dismiss is GRANTED. This Court cannot hear Plaintiffs' case under R. 106(a)(4) because the Plaintiffs failed to file their Complaint within 30 days of the Board's decision to deny their zoning permit application. DATED: OCT L ' 1997 Wil ' L. W st District Court Judge DISTRICT COURT, COUNTY OF WELD, STATE OF COLORADO FILED IN WELD CO:, • Case No. 97-CV-340 C0i!BCJED CCJ;2 Division 1 19 1 'In H n i AFFIDAVIT OF CAROL HARDING ELIZABETH A. WILSON, and RICHARD L. WILSON, Plaintiffs, vs. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, Defendant. The Affiant, Carol Harding, being duly sworn upon oath, states as follows: 1. That I am employed by Weld County, Colorado and hold the title of Deputy Clerk to the Board of County Commissioners of Weld County. I have held this position since 1990. 2. That in my work as Deputy Clerk to the Board, I have the duty of supervising the taking and writing of minutes for all Board hearings, and the drafting of written resolutions for the Board's signature to document its decision in those hearings. I also have the duty of accepting service of process for the Board in all lawsuits in which the Board is named as a defendant. 3. That the minutes for the Board's hearing regarding ZPAD #79 reflect that both Richard Wilson and Elizabeth Wilson were present. 4. That a first signed version of the Board's Resolution for ZPAD#79 was mailed to the Wilsons sometime before May 15, 1997 (most likely the week of May 5, 1997). The first signed version contained a clerical error in Paragraph 1.C. on Page 2. The error was that the statement "staffs concerns"should have read: `Board of County Commissioners' concerns." The error was caught by staff of the Weld County Department of Planning and Zoning, but not communicated to Clerk to the Board until the Resolution had been signed and a copy sent to the Wilsons. After the error was ascertained, it was corrected and a new Resolution was signed and mailed to the Wilsons on or about May 15, 1997. By cover letter mailed to the Wilsons on May 22, 1997, I explained the error and sent a copy of the revised Resolution to them with the correction highlighted. Copies of my May 22, 1997, letter and the revised Resolution are attached. Page 1 of 2 Pages 5. That the Plaintiffs' Complaint and Summons were served upon the Board on June 24, 1997. FURTHER, the Affiant sayeth naught. SIGNED this /yy of July, 1997. CAROL HARDING, DE CLERK TO THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY SUBSCRIBED AND SWORN to before me this /e- day of , /, 1997 . v WITNESS my hand and official seal. • Ot �i C 2.c e1 ti • / .ca�� 21 Et� Q Notary Public l •�'r. '. pires: /0—7—d-000 My Coma bps QCL aim M:1 W PFIL ESTLEADINO W FCAROL.B TB Page 2 of 2 Pages CLERK TO THE BOARD PHONE (970)356-4000, EXT.4218 FAX: (970) 352-0242 WI I P.O. BOX 758 cGREELEY, COLORADO 80632 COLORADO May 22, 1997 Elizabeth Wilson 6707 Weld County Road 19 Fort Lupton, CO 80621 RE: Denial of Accessory Dwelling Permit#79 Dear Ms. Wilson: In response to your request on May 20, I have enclosed a copy of the original resolution which, in bold text, shows the change that was made on page two. The first resolution was being circulated for signature when the error was discovered; therefore, the document saved on the computer was revised, and the original document was not saved. If you have questions or need additional information, please do not hesitate to contact me at , (970) 356-4000, Extension 4217. Very truly yours, Carol Harding Office Manager End. RESOLUTION RE: DENY ACCESSORY DWELLING PERMIT#79-ELIZABETH WILSON 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,the Board of County Commissioners of Weld County,Colorado,on April 30, 1997,considered the request of Elizabeth Wilson,6707 Weld County Road 19,Fort Lupton, Colorado 80621,to place a dwelling on a parcel of land to be used as an accessory dwelling, and WHEREAS,said accessory dwelling is to be occupied in an A(Agricultural)Zone District on a parcel of land being more particularly described as follows: Part of the N1/2 of Section 33,Township 2 North, Range 67 West of the 6th P.M.,Weld County, • Colorado,and WHEREAS,the Board of County Commissioners,having heard the testimony of those present,finds that said request should be denied for the following reasons: 1. The applicant has not shown compliance with Section 43.2.3.1 of the Weld County Zoning Ordinance,specifically as follows: A. Section 43.2.3.1.1 -The mobile home or accessory dwelling unit will be occupied by persons customarily employed at or engaged in the operation of the use where the mobile home accessory dwelling unit is located. The applicant has indicated that the dwelling unit will be occupied by members of family and that everyone residing on the property is an integral part of the proposed farming operation. It is the Board's concern that the residents of the property,though engaged in the operation,are not principally employed by the proposed operation and that reasonable alternatives exist. B. Section 43.2.3.1.2-The mobile home or accessory dwelling unit is necessary for the effective and economic operation of the use and/or protection of the agricultural use. It is the Board's opinion that the applicant has not shown adequate evidence in the current operation of the property or in the proposed uses that the third accessory dwelling unit is necessary for the effective and economic operation of the use and/or protection of the agricultural use. Currently four(4)residences exist on this site. The current operation includes hay,corn,and wheat production and to date there are no animal units located on the property. C. Section 43.2.3.1.3-The mobile home or accessory dwelling unit will not be used as an income source by the applicant for rental to persons not principally employed upon the lot. The applicant has indicated through a phone conversation that the proposed residence will allow them to move into a larger home and provide housing in the existing residence for an additional family. The applicant stated that all residents are family members who pay toward the mortgage of the property and will work on the property. The septic permit,which is included with the application packet,indicates that the proposed residence is for five(5)people. As stated above ink I.A., Board of County Commissioners'x concern is that the persons,though ' engaged with the operation,will not be principally employed through the s existing or proposed uses on the property and that three of the four existing structures are permanent structures in nature. This proposal if approved would allow for a total of four permanent structures in nature. D. Section 43.2.3.1.4-Adequate water and sewage disposal facilities are available to the mobile home or accessory dwelling unit. The applicant has applied for the proper septic permit,and Central Weld County Water District,in the letter from John W.Zadel dated December 19, 1996,indicates that additional water service can be made available to the property provided all requirements of Central Weld County Water District,Northern Colorado Water Conservancy District, and the U.S.Bureau of Reclamation are satisfied. The Board is concerned that this proposal is not consistent with the Agricultural Zone District which allows for one(I)single family residence per legal lot. The applicant has four(4)existing residences on the site. The multiple(5) residential structures on this site are equivalent to a minor subdivision in terms of impacts to roads,water,and septic and are not consistent with the intent of the zone district. E. Section 43.2.3.1.5-The mobile home is not the first dwelling unit on the parcel of land. This section does not apply to this application. F. Section 43.2.3.1.6-The applicant must obtain a building permit for the mobile home and comply with all installation standards of the Weld County Building Code Ordinance. This section is specific to mobile homes,but in the event the proposal is approved the applicant must obtain the appropriate building permits and comply with the standards of the Weld County Building Code Ordinance. • 970829 NOW,THEREFORE,BE IT RESOLVED by the Board of County Commissioners of Weld County,Colorado,that the request of Elizabeth Wilson to place a dwelling to be used as an accessory dwelling on the hereinabove described parcel of land,which was found to not be in compliance with Section 43 of the Weld County Zoning Ordinance,be,and hereby is,denied, subject to the above listed reasons. The above and foregoing Resolution was,on motion duly made and seconded,adopted by the following vote on the 30th day of April,A.D., 1997. BOARD OF COUNTY COMMISSIONERS WELD COUNTY,COLORADO ATTEST: (NAY) George E.Baxter,Chair Weld County Clerk to the Board (AYE) Constance L.Harbert,Pro-Tem BY: Deputy Clerk to the Board (AYE) Dale K.Hall APPROVED AS TO FORM: (AYE) Barbara 1.Kirkmeyer County Attorney (AYE) W.H.Webster MEMORANDUM 1 TO: Elizabeth Wilson May 15, 1997 WIDCFROM: Clerk to the Board COLORADO SUBJECT: ZPAD #79 Attached is a copy of the revised Resolution of the Board regarding your case. RESOLUTION RE: DENY ACCESSORY DWELLING PERMIT#79 - ELIZABETH WILSON 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, the Board of County Commissioners of Weld County, Colorado, on April 30, 1997, considered the request of Elizabeth Wilson, 6707 Weld County Road 19, Fort Lupton, Colorado 80621, to place a dwelling on a parcel of land to be used as an accessory dwelling, and WHEREAS, said accessory dwelling is to be occupied in an A (Agricultural) Zone District on a parcel of land being more particularly described as follows: Part of the N1/2 of Section 33, Township 2 North, Range 67 West of the 6th P. M., Weld County, Colorado, and WHEREAS, the Board of County Commissioners, having heard the testimony of those present, finds that said request should be denied for the following reasons: 1. The applicant has not shown compliance with Section 43.2.3.1 of the Weld County Zoning Ordinance, specifically as follows: A. Section 43.2.3.1.1 -The mobile home or accessory dwelling unit will be occupied by persons customarily employed at or engaged in the operation of the use where the mobile home accessory dwelling unit is located. The applicant has indicated that the dwelling unit will be occupied by members of the family and that everyone residing on the property is an integral part of the proposed farming operation. It is the Board's concern that the residents of the property, though engaged in the operation, are not principally employed by the proposed operation and that reasonable alternatives exist. B. Section 43.2.3.1.2 -The mobile home or accessory dwelling unit is necessary for the effective and economic operation of the use and/or protection of the agricultural use. It is the Board's opinion that the applicant has not shown adequate evidence in the current operation of the property or in the proposed uses that the third accessory dwelling unit is necessary for the effective and economic operation of the use and/or protection of the agricultural use. Currently four (4) residences exist on this site. The current operation includes hay, corn, and wheat production and to date there are no animal units located on the property. 970829 (� ; PL lei/SO/I PL0076 RE: ACCESSORY DWELLING PERMIT#79- ELIZABETH WILSON PAGE 2 C. Section 43.2.3.1.3 - The mobile home or accessory dwelling unit will not be used as an income source by the applicant for rental to persons not principally employed upon the lot. The applicant has indicated through a phone conversation that the proposed residence will allow them to move into a larger home and provide housing in the existing residence for an additional family. The applicant stated that all residents are family members who pay toward the mortgage of the property and will work on the property. The septic permit, which is included with the application packet, indicates that the proposed residence is for five (5) people. As stated above in #1.A., the Board of County Commissioner's concern is that the persons, though engaged with the operation, will not be principally employed through the existing or proposed uses on the property and that three of the four existing structures are permanent structures in nature. This proposal if approved would allow for a total of four permanent structures in nature. D. Section 43.2.3.1.4 -Adequate water and sewage disposal facilities are available to the mobile home or accessory dwelling unit. The applicant has applied for the proper septic permit, and Central Weld County Water District, in the letter from John W. Zadel dated December 19, 1996, indicates that additional water service can be made available to the property provided all requirements of Central Weld County Water District, Northern Colorado Water Conservancy District, and the U.S. Bureau of Reclamation are satisfied. The Board is concerned that this proposal is not consistent with the Agricultural Zone District which allows for one (1) single family residence per legal lot. The applicant has four(4) existing residences on the site. The multiple (5) residential structures on this site are equivalent to a minor subdivision in terms of impacts to roads, water, and septic and are not consistent with the intent of the zone district. E. Section 43.2.3.1.5 - The mobile home is not the first dwelling unit on the parcel of land. This section does not apply to this application. F. Section 43.2.3.1.6 - The applicant must obtain a building permit for the mobile home and comply with all installation standards of the Weld County Building Code Ordinance. This section is specific to mobile homes, but in the event the proposal is approved the applicant must obtain the appropriate building permits and comply with the standards of the Weld County Building Code Ordinance. 970829 PL0076 RE: ACCESSORY DWELLING PERMIT#79 - ELIZABETH WILSON PAGE 3 NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the request of Elizabeth Wilson to place a dwelling to be used as an accessory dwelling on the hereinabove described parcel of land, which was found to not be in compliance with Section 43 of the Weld County Zoning Ordinance, be, and hereby is, denied, subject to the above listed reasons. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 30th day of April, A.D., 1997. BOARD OF COUNTY COMMISSIONERS ��, Leat WELD UNTY, COLORADO� Y.. (NAY) 1�1 `�� Georg . Baxter, Chair .t0 Wy ra ty Clerk to the Board Ø ,, % W ,L v y Constance L. Harbert, Pro-Tem Alb h' walieputy Clerk o the Board 1 i 4f: er / (AYE) Dare c-Hall APP D AS RM: EXCUSED DATE OF SIGNING (AYE) Barbara J. Kirkmeyer 4 C my Attorn y � iv �6, (AYE) W. H. Webster - 1, 970829 PL0076 C �.4b r� _y N 0 IQ h O ur -1 /.% Rm i rv.ey as _ ta bA _ Lie 0 -_ N o c 0 . W Q CO O O C� = gip _ CJ3 ~ WU ~ W CI) t _ • it N P a ,v at a G. CC Q M di 0 fO m co = 00 0 1— n 0 Omd d w00 -Ja U I V� �0 A —dug sett+ Yia mU FILED IN WELD COUi1T T, OUNTY OF WELD, STATE OF COLORADO COMBINED COURTS DISTRICT CO Case No. 97 V'� Division I i5 n JUN I b p 2: 10 COMPLAINT PURSUANT TO RULE 106 C.R.C.P. ELIZABETH A. WILSON and RICHARD L. WILSON, Plaintiffs, vs. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO, Defendants. COMES NOW the Plaintiffs, by and through their attorneys, DOYLE, OTIS, FREY & HELLERICH, LLC, by Thomas E. Hellerich, and pursuant to Colorado Rules of Civil Procedure, Rule 106(a)(4) and for their Complaint against the Defendants hereby allege and state as follows: 1. The Plaintiffs are residents of Weld County, Colorado and were the applicants in Case #ZPAD79 for an accessory dwelling permit. 2. Weld County is a body corporate and politic capable of suing and being sued in its own name. The Defendant, The Board of County Commissioners of Weld County("Board of County Commissioners") exercises the powers granted to Weld County. 3. The Defendant, Board of County Commissioners, was acting in a quasi-judicial manner in denying a permit pursuant to an application of the Plaintiffs for an accessory dwelling permit in an agricultural zone. 4. On April 30, 1997, a public hearing was held before the Board of County Commissioners concerning a request for the permit for an accessory dwelling as submitted by the Plaintiffs. 5. Plaintiffs were notified of the Revised Resolution by mail, by letter dated May 15, 1997, and postmarked May 16, 1997. A copy of the letter and envelope is attached hereto, marked "Exhibit A", and incorporated herein by reference. 6. At the conclusion of said public hearing the Defendant, Board of County Commissioners adopted a Resolution denying the requested permit. 7. In denying the Plaintiffs application and adopting the Resolution, the Board of County Commissioners acted arbitrarily and capriciously, abused its discretion, exceeded its jurisdiction, acted contrary to the previously adopted Comprehensive Plan and Zoning Ordinance, acted contrary to its own rules and regulations, and denied the Plaintiffs procedural and substantive due process of law. 8. That Plaintiffs have no plain, speedy and adequate remedy otherwise provided by law. WHEREFORE, Plaintiff's pray that this Court review the acts of the Board of County Commissioners; declare the act of the Board of County Commissioners to be null and void; to remand the matter to the Board of County Commissioners with orders to vacate its Findings, Orders and Resolutions enacted with respect thereto, and to approve the Plaintiffs application for a permit for an accessory dwelling in an agricultural zone. Dated this/da day of June, 1997. DOYLE, OTIS, FREY& HELLERICH, LLC $s1: Thomas E. Hellerich# 159 159 Attorney for Plaintiffs 1812 56th Avenue Greeley, CO 80634 (970) 330-6700 PLAINTIFFS ADDRESS: 6707 WCR 19 Ft. Lupton, CO 80621 © ......a.- .1/4‘ 0.M...4% tisk I 4 f r,, -.. itp.. vi DISTRICT COURT, WELD COUNTY, COLORADO lra , �D C r/,° ; Case No. 97 CV 340 Division I ''' �� ' c m NOTICE OF INTENT TO APPEAL 7 Richard L. Wilson and Elizabeth A. Wilson Plaintiffs v. THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO Defendant Comes now the Plaintiffs, representing themselves, with a NOTICE OF INTENT TO APPEAL the order of this court titled ORDER RE: MOTION FOR A NEW TRIAL OR AMENDMENT OF JUDGMENT which was dated January 15, 1998. Pursuant to C.R.S. 24-4-106(9), and C.A.R. 25, this notice is filed within forty-five days of the decision being appealed. Respectfully, • Richard L. Wilson and Elizabeth A. Wilson 6707 WCR !9 Ft. Lupton, Colorado 80621 (303) 655-0707 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing NOTICE OF INTENT TO APPEAL was placed in the United States mail, postage prepaid, addressed to: Bruce Barker Weld County Attorney 915 Tenth Street P.O. Box 1948 Greeley, Colorado 80632 THE BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY, COLORADO 915 Tenth Street P.O.Box 758 Greeley, Colorado 80632 OFFICE OF THE ATTORNEY GENERAL STATE OF COLORADO APPELLATE COURT DIVISION 1525 Sherman Street Denver, Colorado 80202 c-! Fit ��rrrF ,y � DISTRICT COURT, WELD COUNTY, STATE OF COLORADO J dot; 1 Case No. 97 CV 340 Division 1 /13 Hip DESIGNATION OF RECORD Comes now the Plaintiffs, Richard L. Wilson and Elizabeth A. Wilson, and designate the following items to be specifically included with the transmission of the record: 1. Transcript of hearing of April 30, 1997. 2. All pleadings, motions, replies, responses, memoranda, briefs, exhibits including correspondence, summons and complaint, amended complaint and orders, in District Court, Weld County, Colorado Case No. 97 CV 340. Respectfully submitted this ) „t day of March, 1998. Richard L. Wilson and Elizabeth A. Wilson 6707 WCR 19 Ft. Lupton, Colorado 80632 (303) 655-0707 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the foregoing DESIGNATION OF RECORD was placed in the United States mail, postage pre-paid, or hand delivered to: DISTRICT COURT, WELD COUNTY, DIVISION I Honorable Judge William L. West 9th Ave. and 9th Street Greeley, Colorado 80631 Bruce Barker Weld County Attorney 915 Tenth Street P.O. Box 1948 Greeley, Colorado 80632 BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY 915 Tenth Street P.O.Box 758 Greeley, Colorado 80632 OFFICE OF ATTORNEY GENERAL STATE OF COLORADO APPELLATE DIVISION 1525 Sherman Street Denver, Colorado 80202 Hello