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RESOLUTION
RE: AUTHORIZATION TO COUNTY ATTORNEY TO SETTLE CIVIL ACTION
INVOLVING FORMER WELD COUNTY OFFICERS, ELECTED OFFICIALS,
AND APPOINTED OFFICIALS OF WELD COUNTY, COLORADO.
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,
WHEREAS, there is now pending in the District Court of Weld
County, Colorado a civil action entitled Case #23537, Interladco,
Inc. , Plaintiff, vs. Glenn K. Billings, Harry S. Ashley, Marshall
Anderson, Burman Lorenson, Leonard Bartels , Glen Anderson, Philip
Bowles, Donald Clark, Ronald Heitman, J. Ben Nix, John Watson, and
John L. Weigand, Defendants, and
WHEREAS, Weld County has undertaken, pursuant to law, to
defend all Defendants in said action, and
WHEREAS, the Weld County Attorney has advised the Board of
County Commissioners that settlement negotiations have been reached
for the payment of the sum of Ninety Seven Thousand Dollars
($97, 000. 00) to the Plaintiff in exchange for complete release
of all claims of said Plaintiff in this matter, and further the
Weld County Attorney has advised the Board of County Commissioners
of Weld County, Colorado, that it would be in the best interest
of Weld County to conclude said litigation by the settlement of
said civil action, and
WHEREAS, the Board of County Commissioners of Weld County,
Colorado after considering the matter find that it is in the best
interest of Weld County, Colorado to conclude said action by
settlement as outlined above.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Com-
missioners of Weld County, Colorado that Thomas O. David, Weld
County Attorney be, and hereby is, authorized and directed to
take whatever steps are necessary to conclude the litigation
referred to above by settlement of said civil action forthwith.
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The above and foregoing Resolution was, on motion duly made
and seconded, adopted by the following vote on the 16th day of
August, A.D. , 1978 .
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO‘711ATTEST: 01l Aw. T?U$M/lClin�
Weld County Clerk and Recorder
and\Clerk to the Boa
By: 694
eputy County
(-----,A*
D AS TO FORM:
County Attorney
Date Presented: August 16, 1978
IN THE DISTRICT COURT IN AND FOR
THE COUNTY OF WELD
STATE OF COLORADO
CIVIL ACTION NO. 23537
INTERLADCO, INC. , et al. , )
)
PLAINTIFFS, )
)
) FINDINGS OF FACT,
vs. ) CONCLUSIONS OF LAW,
AND JUDGMENT
GLENN K. BILLINGS, et al. , )
)
DEFENDANTS. )
1. The parties having agreed to proceed to trial
before the Court on the issues raised in the first claim
which concerns the subject of whether or not the Weld County
Planning Commission and the Weld County Board of County Commis-
sioners had properly performed their duties respecting the
platting of land in Weld County, postponing all matters related
to the second claim for damages alleged to have arisen out of
wrongs alleged to have occurred under the first cla.iih,_this
Court directs the entry of a final judgment with respect _to
the first.. claim only, without, at this time, taking any action
with respect to the second claim because there is no just reason
for delay in entering judgment respecting the first claim; and,
the Court finds, there is good reason for its entry in that the
judgment herein will require action by public officials of Weld
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County which should have been taken many months ago and the
taking of such action may mitigate or avoid damage claimed
under the second claim.
FINDINGS OF FACT
2. Plaintiffs are the owners of the property described
in the complaint herein which, at all times pertinent to this pro-
ceeding, was zoned "A" , Agricultural District by virtue of Weld
County zoning regulations enacted by the Weld County Commissioners
on May 29, 1961 and revised November 12 , 1970. The uses permitted
as a matter of right of land so zoned are set forth at Page 5 of
the Zoning Regulations, and include:
"3.3. Uses Permitted in the "A" , Agricultural District.
(1) All uses permitted in the "E" Estate District
as stated therefore; . . .
3.4 Uses Permitted in the "E" Estate District . . .
(4) One-family Dwellings; "
3. The subdivision regulations commencing on page
8 at paragraph 4.1 set forth procedures for filing a sub-
division plat. On April 10, 1972, the Board of County Commis-
sioners, by a vote of 2 to 1, approved a preliminary plat of
Indianhead Subdivision on the basis of a record which showed that
every recommendation and "every item in the subdivision regulations
have been met" . The Planning Commission refused to approve
a final_plat submitted in accordance with county regulations
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and on December 20, 1972 the Board of County Commissioners formally
adopted a resolution refusing approval, execution and recordation
of Indianhead Subdivision.
4. The record of proceedings before the Weld County
Planning Commission and the Weld County Board of County Commis-
sioners show an unmistakable and deliberate plan among the members
of both boards to evade the provisions of the zoning regulations
and prevent Plaintiffs from using their property for single-
family residences for which the property was zoned. These records
also show that the Defendants endeavored to arrange their rulings
and proceedings in such a way as to present an endless succession
of administrative procedures so that Plaintiffs could not receive
redress at the hands of the judicial branch of the government
of Colorado by virtue of the legal technicality of never having
been able to exhaust their administrative remedies, despite tht
fact that the Plaintiffs met all legal requirements imposed upon
them.
5. The facts alleged in the complaint and proved by
the record are sufficient to state a cause of action and to give
a right of judicial relief.
C,_!,) The parties have agreed that the second cause of
action or claim for relief for damages against the Defendants
shall be postponed for such action as may be hereafter taken.
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7. It is apparent from the record that the Board of
County Commissioners abandoned the proper issues and denied
approval on considerations totally outside the scope of proper
inquiry.
CONCLUSIONS OF LAW
8. The plats of the property which are the subject
of this action provided for use of the property which was lawful
under the zoning regulations of Weld County and complied with
every requirement of the subdivision regulations, a fact found
by the County Commissioners on April 10, 1972. The plats of
the Plaintiffs were entitled to approval and recordation as
provided in the Weld County Subdivision regulations.
9. The refusal of County Commissioners to approve
the plats and perform the necessary ministerial acts was arbi- , '"
trary, capricious, unreasonable, not based on competent evidence
and resulted in a taking of Plaintiffs ' property without due
process of law.
i0. The motion to dismiss the Complaint is without
merit and should be dismissed.
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1 .
THEREFORE IT IS ORDERED, ADJUDGED AND DECREED that
immediately after notation of judgment as provided in paragraph
13 hereof, the Board of County Commissioners of Weld County, as
a body, and the individuals who are members thereof at the time
of entry of this judgment and thereafter are ordered to set aside
the resolution of said Board of December 20, 1972, and that the
Board of County Commissioners, together with the Planning
Commission and the employees of each shall do all things
necessary to enable Plaintiffs to record the plat of Indianhead
Subdivision so that the land which is the subject of this pro-
ceeding may be developed and used pursuant to law and more
particularly to approve the final plat of Indianhead Subdivision
as submitted to the Defendants by Plaintiffs on July 27 , 1972.
IT IS FURTHER ORDERED that Defendants ' motion to dismiss
Plaintiffs' petition and complaint and to vacate the citation
and order entered January 19, 1973 is denied, and let judgment
enter in accordance herewith.
Done in chambers this x j"4ay April, 1974 .
BY THE COURT:
Di is Ju ge
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COLORADO COURT OF APPEALS
No. 74-316
INTERLADCO, INC. , a corporation, )
LENNART MELLIN and GLADYS MELLIN, )
)
Plaintiffs-Appellees, )
)
v. )
)
GLEN K. BILLINGS, HARRY S. ASHLFEJ, )
MARSHALL ANDERSON and ROY MOSER, )
as individuals and as jointly constituting )
and being the Board of County Commissioners)
in and for the County of Weld, State of )
Colorado, LEONARD BARTELS; GLEN ANDERSON, )
DONALD CLARK; JOHN WATSON; J. BEN NIXf )
RONALD HEITMAN; JOHN WEIGAND/ PHILIP )
BOWLES; ELMER ROTH and BILL ELLIOTT, as )
individuals and as jointly constituting )
and being the Weld County Planning )
Commission, and BURMAN LORENSON, in- )
dividually and as Planning Director for )
the County of Weld, State of Colorado, )
Defendants-Appellants . )
Appeal from the District Court of the County of Weld
Honorable Donald A. Carpenter, Judge
DIVISION I JUDGMENT AFFIRMED
Coyte, Pierce and Berman, JJ.
Hammond and Chilson
John H. Chilson -
Loveland, Colorado
Saunders, Snyder and Ross, P.C.
Glenn G. Saunders
Denver, Colorado
Attorneys for Plaintiffs-Appellees
Cooke, Gilles & Schaefer
Ronald Lee Cooke
Denver, Colorado
Telep and Connell
Samuel S. Telep n °o=�u'
Greeley, Colorado ® ,1 1 .7. 4-
Attorneys for Defendants Ajppgllannts Gs'r/
gano0 oig ;To X: TO
Opinion by JUDGE COYTE 1E2al5S aDNzu ao NI:3_'
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- Plaintiff Interladco, Inc. , brought this action against
defendants alleging a claim for relief pursuant to C.R.C.P.: 106(a) (4) , to
review a decision of the defendant Board of County Commissioners
denying approval of a final subdivision plat of Interladco, Inc. , ii
Weld County., Colorado, and in a second claim for relief asked for
damages against defendants in the amount of $85,000. Lennart and
Gladys Mellin were joined as parties plaintiff because they had an
equitable interest in the property sought to be subdivided.
The case was tried to the court on the record certified
from the planning commission and Board of County Commissioners
and on oral testimony. At the conclusion of the trial, the
court entered judgment ordering the county commissioners to
approve the plat and reserved the question of damages for future
consideration. Defendants appeal contending that the court
erred in reserving the question of damages, in allowing oral
testimony at the trial, in reviewing the record of the Weld
County Planning Commission, in finding that the Weld County Planninc
Commission participated in a plan to evade the provisions of
the Weld County zoning resolutions, and in finding that the Board
of County Commissioners abused its discretion in denying plain-
tiffs' final plat. We affirm the judgment.
We do not address ourselves to the propriety of join-
ing a claim for damages in this proceeding with the C.R.C.P.
106 proceedings. At trial, defendants ' attorney had contended
before the trial court that damages have no part in a C.R.C.P.
106 proceeding and plaintiffs ' attorney had requested that the
damages issue be separated from the rest of the case. No evi-
dence on the question of damages was introduced. The trial court,
on supporting evidence, found that the parties had agreed to
proceed to trial on the issues raised on the first claim, and
it then directed the entry of a final judgment with respect to
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the first claim only, and stated that no action was taken at
that time on the second claim because "there is no just reason
for delay in entering judgment on the first claim." This was
sufficient compliance with C.R.C.P. 54 (b) so that there is a
final judgment on the first claim which can be appealed, but
any issues relative to the damages claim are not within the scope
of that judgment.
Because of the nature of plaintiffs' first claim in
requesting a review of the actions of the Weld County Planning
Commission and the Board of County Commissioners and the in-
dividual members of the board in their refusal to approve the
final plat of plaintiffs' land, the trial court allowed plaintiffs
to present oral testimony to the court in addition to the record
of proceedings made before the planning commission and Board
of County Commissioners. See Morris v. Board of County Commis-
sioners, 150 Colo. 33, 370 P. 2d 438; and Regennitter v. Fowler,
132 Colo. 489, 290 P. 2d 223. Defendants contend that the court
erred in allowing this oral testimony, particularly when the
issue of damages had been separated from the C.R.C.P. 106 pro-
ceedings. If it were error, it was harmless error, since the
record certified from the planning commission and the Board of
County Commissioners contained sufficient evidence to show
that the Board of County Commissioners abused its discretion and
the trial court specifically found that its findings were based
on this record.
The critical findings of the trial court were that:
"The record of proceedings before the
Weld County Planning Commission and the Weld
County Board of County Commissioners show an
unmistakable and deliberate plan among the mem-
bers of both boards to evade the provisions of
the zoning regulations and prevent Plaintiffs from
using their property for single-family residences
for which the property was zoned. These records
also show that the Defendants endeavored to arrange
their rulings and proceedings in such a way as to
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present an endless succession of administrative
procedures so that Plaintiffs could not receive
redress at the hands of the judicial branch of
the government of Colorado by virtue of the legal
technicality of never having been able to exhaust
their administrative remedies, despite the fact
that the Plaintiffs met all legal requirements im-
posed upon them."
"It is apparent from the record that the
Board of County Commissioners abandoned the proper
issues and denied approval on considerations totally
outside the scope of proper inquiry."
Although under C.R.C.P. 106, the role of review of
the district court "shall not be extended further than to deter-
mine whether the inferior tribunal has exceeded its jurisdiction
or abused its discretion," Bauer v. Wheat Ridge, Colo.
513 P. 2d 203, we find no error in the findings and judgment
entered here.
The circumstances evident here fall within the ambit
of the principles stated in Western Paving Construction Co. v.
Board of County Commissioners, Colo. , 506 P.2d 1230.
There, in reversing a board of county commissioners' denial of
a permit for extraction of sand and gravel, the Supreme Court
ruled that:
" [W]hen the matter- is permitted by right
in the zone created and either through an en-
vironmental concern or a change of circumstances
the use is incompatible with prior usage, the
proper procedure is to amend the zoning resolu-
tion. . . If the use is permitted within the zone,
then it is impossible not to be in harmony. It is
apparent from the record that the Board abandoned
the proper issues and struck the application on
considerations totally outside the scope of proper
inquiry. . . .
" 'Courts are not to be impotent, stand idly
by, and allow unrestricted exercise of authority
by Boards, not granted by statute or permit the
arbitrary and unjustified exercise of discretion. ' "
Similar principles were utilized to produce a like result in
Bauer v. City of Wheat Ridge, supra; and see also Green v. Castle
Concrete Co. , Colo. , 509 P. 2d 588.
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Where there is no evidence in the proceedings before
the Board of County Commissioners to support its decision, the
same is not binding on the trial court or on this court. Martinez
v. Industrial Conunission,• 32 Colo. App. 270, 511 P. 2d 921.
The record clearly demonstrates that the planning
director for Weld County and the membership comprising the planning
commission and the Board of County Commissioners did not want
a development of single-family residences isolated from other
developed urban areas, even though their subdivision regulations
had no such restrictions. They met and planned, not only for
the purpose of thwarting plaintiffs in their efforts to have their
subdivision approved, but also to devise means to defeat plain-
tiffs' attempt to obtain F.H.A. approval as well as plaintiffs'
efforts to meet Weld County' s water requirements. We cannot
escape the conclusion that the deliberate delays caused by de-
fendants were solely to obstruct, in any manner possible, a final
approval of the subdivision.
The record also clearly shows that plaintiffs presented
a plat for approval which met all the pertinent requirements of
the subdivision regulations then in effect, but that :the Board
of County Commissioners, because of their personal whims, never-
theless refused to approve the plat. Such abuse of discretion
will not be tolerated.
Judgment affirmed.
JUDGE PIERCE and JUDGE BERMAN concur.
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