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Home My WebLink About730524.tiff RESOLUTION RE: AUTHORIZING THE COUNTY ATTORNEY TO DEFEND THE BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO, ET AL. , IN THE CASE ENTITLED "PATRICK COLLINS vs. BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO, ET AL. , CIVIL ACTION NO. 23858, IN THE DISTRICT COURT IN AND FOR THE COUNTY OF WELD, STATE OF COLORADO. " BE IT RESOLVED, that the Board of County Commissioners, Weld County, Colorado, authorize the County Attorney to defend the Board of County Commissioners, Weld County, Colorado, et al. , in the case of Patrick Collins vs. The Board of County Commissioners, Weld County, Colorado, et al. , Civil Action No. 23858, in the District Court in and for the County of Weld and State of Colorado; also to employ co-counsel and to do whatever is necessary in bringing the matter to a speedy conclusion. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 18th day of April, A. D. , 1973. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO "17// (IL Yi ATTEST: Clerk�he Board „�✓ Ceti, U Q.pYty rark APPR AS TO WRM: /1 County Attor ey 0 PL0655 730524 r A IV. 41,45 OFFICE OF BOARD OF COUNTY COMMISSIONERS PHONE (303) 353-2212 EXT. 221,222& 223 P.O. BOX 756 GREELEY,COLORADO 80631 Wilk COLORADO / Received this .1C:;, L C 'j, x`I-113 , the original file of all documents, evidences and transcript of testimony and proceedings in the Matter of Civil Action 23858-I Land Use Permit - Dog Kennel Expansion - Patrick Collins 0 \l', Clerk ,p the District Court WELD COUNTY COMMISSIONERS HARRY S.ASHLEY GLENN K. BILLINGS ROY MOSER IN THE DISTRICT COURT IN AND FOR THE COUNTY OF WELD AND STATE OF COLORADO CIVIL ACTION 23858 ) ) PARTICK COLLINS, ) ) ) ) CERTIFICATION ) ) PLAINTIFF ) ) vs. OF ) BOARD OF COUNTY COMMISSIONERS, ) WELD COUNTY, COLORADO and the ) individual members thereof: ) RECORD MARSHALL ANDERSON, GLENN BILLINGS, ) and HARRY ASHLEY, ) ) ) We% the Board of County Commissioners in and for the County of Weld, State of Colorado, do hereby certify that the following documentary evidence, comprising the full record and proceedings before the Board in the above entitled case was filed with the Clerk of the District Court of Wald County, Colorado, on to-wit: 1. Waste Inventory - Livestock Feeding Operations dated 8/28/72: Prepared by Ben Kleen Law Offices. 2. Special Use Permit Application #2: Signed by Lenora Collins (SE*: 12-3-68) 3. Letter and 3 pages of drawing describing kennels. 4. Form Letter, Environmental Health Services, signed by F.G. Ramegio approving or recommending request. 5. Planning Commissions check list sheet — SUP 89:72:48. 6. Suggested Legal description SE4:12-2-68 - Metes and Bounds description. 7. Weld County Planning Commissions Recommendation dated 12/20/72 recommending favorably subject to water supply. 8. Soil Conservation Service letter dated 10/27/72: RE: Soil survey and Interpretation. 9. List Surrounding Property Owners. 10. Certified Mail - 3 pages. 11. Division of Water Resources - 5 pages well data 12. Letter Division of Water Resources dated 12/13/72: RE: well would not support 80 dog kennel. Letter signed by Harlan W. Erker, Supervising Engineer, Ground Water Section. 13. Public Notice for Land Use Permit, Dog Kennel Expansion - dated January 10, 1972. 14. Memo. Weld County Planning Commission signed by Burman Lorensen: Concerning water contract. 15. Copy of Legal Notice as appeared in the Greeley Booster. 16. Letter: Central Weld County Water District dated 1/24/73. RE: water service to property. Letter signed by Dale D. Olhausen. 17: Copy of memo sent to area newspaper with notice of Land Use Permit - Patrick Collins. 18. Letter dated 2/6/73, Long, Jaudon & Johnson, Attorneys at Law, requesting denial of Land Use Permit as requested by -client George G. & Dorothy R. Johnson. 19. Hearings form. 20. Notes on hearing. 21. Attendance Record. 22. Transcript of Tape of hearing, 2/13/73. 23. 2 pages of pictures (prints) 24. Letter signed by 4 people in favor of kennel expansion. 25. Cardboard drawing (Protestants Exhibit "A") 26. Note and Business card, Naiman & Diamond. 27. Letter from Naiman & Diamond dated 2/13/73: Request notification of Commissioners decision. 28. Findings and Resolution concerning Petition of Patrick Collins - Denied. Dated 2/28/73. 29. Certified mail and receipts who were sent notification of Commissioners denial. 30. Summons - Civil Action 23858 - I Patrick Collins vs. Board of County Commissioners, Weld County Colorado, Marshall -Anderson, Glenn Billings, & Harry Ashley, dated 3/26/73. 2- SUMMONS IN CIVIL ACTION Court Filing Stamp • IN THE DISTRICT COURT IN AND FOR THE WELD ammo COUNTY OF MINI4K M AND STATE OF COLORADO CIVIL ACTION NO.. 81.5t.5.g DIV PATRICK COLLINS PLAINTIFF SUMMONS vs. BOARD OF COUNTY COMMISSIONERS, WELD COUNTY, COLORADO, and the individual members thereof: (By Private Process Server) MARSHALL ANDERSON, GLENN BILLINGS and HARRY ASHLEY, DEFENDANTS.... THE PEOPLE OF THE STA'L'E OF COLORADO To the above named defendant._.a., GREETING: You are hereby summoned and required to file with the clerk an answer to the complaint within 20 days after service of this summons upon you. If you fail so to do, judgment by default will be taken against you for the relief demanded in the complaint. _If service upon you is made outside the State of Colorado, or by publication, or if a copy of the complaint be not served upon you with this summons,you are required to file your answer to the complaint within 30 days after service of this summons upon you. WARNING: If this summons does not contain the docket number of the civil action, then the complaint may not now be on file with the clerk of the court. The complaint must be filed within ten days alter the summons is served, or the action mac he dismissed without notice upon your proper request to the court. Information from the court concern itt}; this civil action May not he ayailnble until ten days after the summons is served. Thisisanaction* to review the hearings and findings of an inferior tribunal , as more fully set forth in the attached Complaint WIN & CHESLER Dated March 26 Ig 73f:4€04—epota � Clerk of the District Court Attorney for Plaintiff `Z 4 Suite 2309 1700 Broadway Denver, Co. 80202 222-2885 By Deputy Clerk Address of Attorney (SEM.OF THE COURT) Note—This summons is issued pursuant to Rule 4,Colorado Rules Civil Procedure. -*If the summons is published or served without a copy of the complaint,after the word "action" state the relief demanded. If body execution is sought the summons must state,"This is an action founded upon tort." Fenn IN9 (I '711 I)'C IN THE DISTRICT COURT IN AND FOR THE COUNTY OF WELD AND STATE OF COLORADO Civil Action No. PATRICK COLLINS, ) ) Plaintiff, ) ) vs. ) COMPLAINT UNDER RULE 106(a)(4) ) BOARD OF COUNTY COMMISSIONERS, ) WELD COUNTY, COLORADO, and the ) (By Private Process Server) individual members thereof: ) MARSHALL ANDERSON, GLENN BILLINGS, ) and HARRY ASHLEY, ) ) Defendants . ) COMES NOW the plaintiff, by and through his attorneys, Geer, Goodwin & Chesler, and represents unto the Court as follows: 1 . That this is an action brought pursuant to Rule 106 of the Colorado Rules of Civil Procedure to review Findings and Resolutions concerning petition of Patrick Collins for a dog kennel operation expansion. The resolution or order to be reviewed is dated February 28, 1973. 2. That in 1971 the plaintiff herein filed a petition or applica- tion with the Board of County Commissioners of Weld County, Colorado , and the Planning Board recommended against the application or petition for a twenty-dog greyhound kennel . Thereafter on March 22 , 1971 , the Board of County Commissioners of Weld County, Colorado, in spite of a recommendation against the petition or application of the plaintiff herein for a twenty- dog greyhound kennel and although there were approximately twelve persons appearing in opposition to said application and only the plaintiff herein and his wife appeared in support thereof, did approve the application. 3. That since the initial approval of the application for a grey- hound kennel by the defendants , and to date, there have been no complaints from any persons or officials of the County regarding the plaintiff' s present greyhound kennel operation. -4. That in the instant case, the Planning Board recommended approval of the plaintiff' s application for an expansion of his greyhound kennel facilities if the plaintiff was able to provide additional water for said operation. 5. That the plaintiff herein did obtain another water well permit prior to the hearing on his application before the 'Board of County Commis- sioners of Weld County. 6. That the instant application of the plaintiff was heard by the Board of County Commissioners of Weld County on February 13, 1973, and three persons appeared in opposition to the application, to-wit: one person to the south of the plaintiff' s property, but who had not as of the date of the hearing moved on to his property and was not a resident thereof, and another two persons who were man and wife who also had property to the south of the plaintiff but on whose property they maintained livestock comprised of cattle and at least one pet dog. 7. That the Board of County Commissioners made findings enumerated in four numbered paragraphs as follows: "1 . The evidence and investigation shows that the expan- sion of -said dog kennel operation lies in a potential growth area and the same would be too visible and unsi htl and not indicative of good plannina"(Emphasis supplied The record is silent on what constitutes or what the Board means or what evidence was in front of the Board relating to "potential growth area. " The record is further silent, and the conclusion reached by the Board is meaningless and would vary according to each individual person' s subjective definition, as to what would be "too visible and unsightly". It is interest- ing to note that the proposed and existing kennels are some three-hundred (300' ) feet from the public Road Number 13, and the two protestors (one protestor plus a -man and wife constituting the other protest) are approximately 5 acres away from the present and proposed additional expanded facilities of the plaintiff's kennels. The record further reflects that there is no evi-dente regarding any expansion as being "unsightly", but quite the con- trary exists and could expect to -be existing after the expansion for the reason that the present kennels are in fine condition and the record will show are maintained very well , and the Planning Board has so stated. The record is silent and the reason extremely vague as to what the expansion would do that would lead the Board to state "not indicative of -good plan- ning" to allow this expansion. -2- "2 The evidence and further investigation shows that certain inhabitants of the immediate vicinity and of the sur- rounding area are predominantly opposed to having the existing dog kennel operation expenaded at the present location. " The only evidence in the record of inhabitants protesting were as previously mentioned, the three protestors, two of whom were husband and wife living to the south immediately adjacent to the plaintiff' s property. There were no protestors in the surrounding area that were "predominantly" opposed to having the present kennel expanded, thus the language relating to this part of paragraph 2 in the findings are without foundation in evidence or fa-ct. "_3. Still further investigation by the Board shows that there are a number of kennel operations in the portion of the County where the applicant' s property is situate and that fur- ther Expansion _of the dog population in that area would be a nuisance to the surrounding property owners and tend to inhibit growth in the area. " The Board uses the language in this numbered finding of fact "further investigation" reflects a number of kennel operations in a portion _of the County where the applicant's property is located. Therefore by this part of the finding there are numerous kennel operations in existence. The Board states further that sny expansion of the dog population in that area would be a public nuisance to surrounding property owners , although -there is no evidence in the record to show that the existing kennels have in any way constituted a nuisance and therefore there would be no existing fact or evidence upon which to predicate an inference that an expansion in plaintiff's operation would constitute a nuisance. The converse would seem to be ture, that any expansion would be anticipated and expected to be operated in a manner commensurate with responsibility and not a public nuisance based on plaintiff's present and past operation. The record is totally silent on any evidence to support the Board 's findings that an expansion of plaintiff's dog kennels would "tend to inhibit growth in the area. " "4. That each of the preceding findings , in and of them- selves and independent of each other, constitutes a separate and individual ground for denial of the request for the expan- sion 9f said dog kennel operation. " This paragraph does nothing but refer to the -aforementioned numbered three paragraphs reflecting the Board' s findings. 8. That the three numbered reasons or findings made by the Board —3- indicates and so states that there was evidence and "investigation" upon which the Board made -certain findings and therefrom concluded that the application s-hould be denied. That the -action of the Board of County Commissioners was -arbitrary and capricious; that the Board exceeded its jurisdiction; that the action -of the Board constituted abuse -of discretion ; that the -action amounted to a denial of the plaintiff's rights under the due process clause of Article XIV, Section 1 of the Constitution of the United States , and Article II , Section 25 of the Constitution of the State of Colorado; that said hearing was contrary to the law and evidence in the following iparticulars: (a) That any ex-parte investigation referred to in the Board' s Findings did not afford the _plaintiff an opportunity to examine the results of any such investigation nor to challenge its competency, relevancy and maturality. (b) That the law failed to detail the results of its investigation in itsfinding and said failure is contrary to the law in that it fails to give a reviewing or appellate court any basis upon which to examine said investigation. (c) That the conclusions of the Board in its findings are not afforded by any Findings of Fact set forth in said Resolution of the Board and thus constitutes an abuse of discretion that is contrary to law. (d) That the Board has already established a precedent in the area and on the plaintiff' s property by permitting -dog kennels and there is no legal or logical inference to be drawn from the retard herein that an expansion of said kennel of the plaintiff would be detrimental to the area but the evidence establishes to the contrary that in the past the plaintiff' s kennel has been operated in a proper manner. (e) The Findings of the Board are not supported ty any competent evidence in that the area surrounding the plaintiff's property are not part of any plan but have been partially developed without a plan or design. -4- (f) The evidence does not indicate that an additional expansion of the plaintiff's kennels would materially change the character of the area. The Planning Board said the kennels are not unsightly and are maintained very well and said Board approved the owner's application. (g) That any findings by the Board were not supported by the evidence. (h) That if the action of the Board is not vacated, stayed or set aside then the plaintiff will have been irreparably damaged and will have sustained a loss of potential income from expansion of his own kennels and the incidental benefits in pursuing a vocation in connection therewith. 9. That the plaintiff has no plain, speedy or adequate remedy _at law and will suffer irreparable damages hereinabove cited should this illegal decision of the defendants be allowed to stand. WHEREFORE, the plaintiff prays that this Honorable Court issue to the defendants a citation directing them to certify to this Court at a time certain a complete record of the proceedings , including a transcript of all testimony, files , records and exhibits, and to reverse said decision of the Board and grant the application of the plaintiff herein and for such other and further relief as to this Court may see proper. Respectfully submitted, GEER, GOODWIN & CHESLER AC- Attorneys for Plaintiff Suite 2309, 1700 Broadway Denver, Colorado 80202 222-2885 -5- STATE OF COLORADO ) ss. -AFFIDAVIT COUNTY OF WELD: ) I, Patrick Collins, of lawful age, being first duly sworn upon oath, depose and state that I have read the foregoing Complaint and know the contents of same to be true to the best of my knowledge , information and belief. �� Patrick Collins Subscribed and sworn to before me this 077 lay of March, 1973. My commission expires : N/Y c)Dich_ Notary Pu is TN -THE DISTRICT COURT IN AND TOR THE -COUNTY OF WELD AND STATE OF COLORADO Civil Action No. c.,,351-51— PATRICK COLLINS, ) ) Plaintiff ) ) vs ) BOARD OF COUNTY COMMISSIONERS, ) 0 R D E R WELD COUNTY, COLORADO, and the ) individual members thereof: ) (By Private Process Server) MARSHALL ANDERSON, GLENN -BILLINGS, and HARRY ASHLEY, ) ) Defendants. ) THIS MATTER coming on to be heard upon the plaintiff's Verified Complaint, and WHEREAS, it appears to the Court that the defendants may have abused their discretion, exce-eded their jurisdiction , and erroneously ruled nn certain alleged matters pertaining to the plaintiff; that said alleged ruling may nave been a violation oT the Constitutions of the United States and the State o₹ Colorado, and the laws of the State of Colorado, and that the Rlaintiff may suffer irreparable injury and damage as more particularly detailed in paragraphs 9(a) through (h) of the Verified Complaint herein; and that the plaintiff has no plain, speedy or adequate remedy at law other than through this proeeeding; AND, WHEREAS, the -Court specifically finds as follows: 1 . That any ex-parte investigation referred to in the Board's Findings did not afford the plaintiff an opportunity to examine the results of any such investigation nor to -challenge its competency, relevancy and maturality; 2. That the law failed to detail the results of its lmvesti- gation in its finding, and said failure is contrary to the law in that it fails to give a reviewing or appellate court any basis upon which to examine said investigation. 3. That the conclusions of the Board in its findings are not afforded by any Findings of Fact set forth in said Ttesolution of the Board, and thus constitutes an abuse of discretion that is contrary to law. 4. That the Toard has already established a precedent in the area and on the blaintiff's property by permitting dog kennels and there is no legal or logical inference to be drawn from the record herein that an expansion of said kennel of the plaintiff would be detrimental to the area, but the evidence establishes to the contrary that in the past the plaintiff's kennel has been operated in a proper manner. 5. The Findings of the Toard are not supported by any compe- tent evidence in that the area surrounding the blaintiff's property is not part of any plan, tut has been partially developed without a plan or design. 6. The evidence does not indicate that an additional expansion of the plaintiff' s kennels would materially change the character of the area. The Planning Board said the kennels are not unsightly and are maintained very well , and said Toard -approved the _owner's application. 7. That any findings by the Board were not supported by the evidence. 8. That if the action of the Board is not vacated, stayed or set aside, then the plaintiff will have -been irreparably damaged and will have sustained a loss of potential income from expansion of his own kennels and the incidental benefits in pursuing a vocation in connection therewith. YOU ARE, THEREFORE, ORDERED within thirty (30) days of service of this Order to show cause, if any you have, why your said -decision in the within -matter should not be reversed, why you should not vacate and set aside said decision ; and, IT IS FURTHER ORDERED that you certify to the Court on or before thirty (30) days from the service _of this Order upon you a full and complete record of the broceedings, including a full and complete transcript of all the testimony, evidence, documents, letters , memoranda, files, records, exhibits, orders, opinions, affidavits and the like _of your office relating to the denial _of the application herein. IT IS FURTHER ORDERED that a -copy hereof, together with a - 2 - copy of the Verified Complaint be served upon the defendants at their regular offices or elsewhere within the County of Weld, State of Cobrad°. DONE IN OPEN COURT this ,2-Iti-day of tyLit _/),„ , 1973. BY THE COURT: / /! V Judge - 3 - IN THE DISTRICT COURT IN AND FOR THE COUNTY OF WELD AND STATE OF COLORADO Civil Action No. a3 g -cS PATRICK COLLINS, ) Plaintiff )) ) vs ) ) CITATION TO SHOW CAUSE BOARD OF COUNTY COMMISSIONERS, ) UNDER RULE 106(8) (4) WELD COUNTY, COLORADO, and the individual members thereof: ) MARSHALL ANDERSON, GLENN BILLINGS, ) (By Private Process Server) and HARRY ASHLEY, ) Defendants. ) STATE OF COLORADO ) ) ss. COUNTY OF WELD: ) THE PEOPLE OF THE STATE OF COLORADO: T0: The Defendants and/or -their representatives above named, GREETINGS: WHEREAS, in a certain cause lately pending before you, and WHEREAS, this Court has jurisdiction in the premises , and WHEREAS, the said Plaintiff, RATRICK -COLLINS, has this day filed his Verified Complaint Under Rule 106(x)(4) of the Colorado Rules of Civil Procedure. NOW, THEREFORE, WE _COMMAND YOU, the Defendants , to show cause why said determination denying a dog kennel operation expansion should not be reversed. IT IS FURTHER ORDERED that you, the Defendants , certify to this Court on or before the 2..eiay of 1973, at /a P41M. , the com- plete record of the 1proceedings, including a transcript of all the testi- mony, files , records, exhibits, and affidavits in your possession pursuant to the Findings antl Resoluti_ons dated February 28, 1973. WITNESS, Clerk of said Court with the seal thereof hereto affixed at h office this ,7J40ay of March, 1973. Clerk, BY Deputy L er Hello