HomeMy WebLinkAbout780383.tiff TN THE DISTRICT COURT IN AND FOR
THE COUNTY OF WELD
AND THE STATE OF COLORADO
Civil Action No. 2- 114 7
Division
ROLANDA FEEDS , INC.
]
Plaintiff, ]
] COMPLAINT
vs.
] For Review of Administrative
] Action
THE BOARD OF COUNTY COMMISSIONERS I
OF THE COUNTY OF WELD, ]
]
Defendant. ]
COMES NOW, the Plaintiff by its attorney, Anthony V.
Zarlengo, P.C. , who, as and for its Complaint against the Defen-
dant, states and alleges as follows:
1 . That on April 25 , 1978, a hearing was held by
the Defendant sitting as an administrative board whereby the De-
fendant denied Plaintiff's application for a Special Use Permit.
2 . That Defendant' s denial of a Special Use Permit
was based on findings that Plaintiff' s pollution control devises
were not satisfactory.
3. That at all times pertinent to Plaintiff' s appli-
cation for a Special Use Permit, the Plaintiff was and still is
the lawful holder. of Emissions Permit No. C-11, 328 issued by the
Pir Pollution Control Division of The Colorado Department of
Health.
4. That although 25-7-125, C.R.S . , 1973, provides
that local governments including individual counties may establish
their own standards relating to air pollution control, neither the
7d0383
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Defendant nor any other county agency of Weld County has es-
tablished any standards , rules or regulations pertaining to
air pollution control.
5 . That the action of the Defendant in denying a
Special Use Permit to Plaintiff without any standards , rules
or regulations upon which to base its decision was unlawful,
arbitrary, an unwarranted exercise of discretion and in viola-
tion and in excess of statutory and constitutional authority.
6 . Further, the action of the Defendant in denying
a Special Use Permit to Plaintiff was unlawful, arbitrary, an
unwarranted exercise of discretion and in violation and in excess
of statutory and constitutional authority in the following par-
ticulars :
A. By failing to exercise its own independent judg-
ment based on the merits of the application , the facts adduced
and upon appropriate zoning principles and objectives , rather
than on a mere poll of those attending the hearing or on the
number of protestants .
B. By permitting a vote of the Defendant commis-
sioners to be taken at the close of the presentation of the
evidence without the opportunity for open discussion or deli-
beration.
C. In finding that Plaintiff' s facility:
a . ) Is not compatible with the surrounding area;
b. ) Is not in harmony with the character of
the neighborhood;
c. ) Will have an adverse effect upon the imme-
diate area;
d. ) Will adversely affect the future develop-
ment of the area;
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e. j Is not in the best interest of the health,
safety and welfare of the inhabitants of
the area and the County;
f. ) Does not conform to the purposes of
Sec. 3. 3 .E. of the Weld County Zoning Reso-
lution.
7. In finding that all odor control devises installed
by the Plaintiff have not been effective.
8. By adopting the recommendation of the Weld
County Planning Commission over the objection of the Plaintiff
to the effect that prejudicial error has been committed by the
Planning Commission.
9. By failing to fully disclose to the Plaintiff
at the commencement of the hearing material facts pertaining to
the bias or prejudice of a member of the Defendant commission.
WHEREFORE, the Plaintiff prays that this Court set
aside the Defendant' s action, stay enforcement of the Defendant' s
brder or determination denying a Special Use Permit to Plain-
tiff pending appeal, for an Order requiring the Defendant to
prepare and file the record for review, and for such other, fur-
ther and different relief, as to the Court, may seem just and
equitable in the premises .
BONY V. ZARLENGO, P. C.
Regi.strat' n No 376
Attorney or P intiff
220 Man wer Building
1554 California Street
Denver, Colorado 80202
Address of Plaintiff: Telephone: 629-0574
6509 Weld County Road 51
Keenesburg, Colorado 80643
- 3
IN THE DISTRICT COURT IN AND FOR
THE COUNTY OF WELD
AND THE STATE OF COLORADO
Civil Action No. 2- 9 S76 1
Division
ROLANDA FEEDS , INC.
]
Plaintiff, ]
vs . ] MOTION TO STAY
] ACTION OF DEFENDANT
THE BOARD OF COUNTY COMMISSIONERS ]
OF THE COUNTY OF WELD, ]
]
Defendant. ]
COMES NOW the Plaintiff and Moves this Court for an
Order staying the action of the Defendant denying Plaintiff ' s
application for a Special Use Permit , AND AS GROUNDS IN SUPPORT
THEREOF, states as follows :
1. That the Plaintiff has duly filed its Complaint
for review of the Defendant' s administrative action whereby the
Defendant denied Plaintiff' s application for a Special Use Permit.
2 . That the Plaintiff alleges that said denial was
arbitrary, an unwarranted exercise of discretion, in violation
and in excess of statutory and constitutional authority and that
said action constituted a final order or determination by the
Defendant. There is no speedy or adequate remedy at law.
3. That the Plaintiff has been and still is operat-
ing its facility under a valid Emmissions Permit No. C-11, 382 ,
issue- to the Plaintiff by the Air Pollution Control Division of
the Colorado Department of Health.
4 . That the Plaintiff has an investment in its
business in excess of $500 ,000 . 00, and it is necessary that
Plaintiff continue to operate its facility; that its operation
complies with the State Health Department standards, and the
Plaintiff will suffer great hardship and irreparable injury
unless the effective date of Defendant' s action is postponed
pending judicial review.
WHEREFORE , the Plaintiff Moves this Court for an
Order staying the effective date of the Defendant' s action deny-
ing a Special Use Permit to Plaintiff, for an Order requiring
the Defendant to prepare and file the record of the proceedings ,
that the Defendant show cause why the Order staying the Defen-
dant' s action should not be made permanent, and that the Defen-
dant be Ordered to grant the Special Use Permit to the Plaintiff.
A HONY V. ZARLENGO, P.C.
Registrat ' n No 3765
Attorne or intiff
220 Man ower Building
1554 California Street
Denver, Colorado 80202
Telephone: 629-0574
Address of Plaintiff:
6509 Weld County Road 51
Keenesburg, Colorado 80643
- 2
IN THE DISTRICT COURT IN AND FOR
THE COUNTY OF WELD
AND THE STATE OF COLORADO
Civil Action No. ?6 7
Division
ROLANDA FEEDS , INC, ,
]
Plaintiff,
vs . ] ORDER
]
THE BOARD OF COUNTY COMMISSIONERS ]
OF THE COUNTY OF WELD,
]
Defendant. ]
THIS MATTER coming on to be heard this date , the Court
having read Plaintiff ' s verified Motion to stay action of the
Defendant and to postpone the effective date of the Defendant ' s
action, the Court
FINDS that the action of the Defendant denying a Spe-
cial Use Permit to Plaintiff causes and will continue to cause
irreparable injury to the Plaintiff and that it is necessary for
the Plaintiff to continue to operate itu business , it is therefor.
ORDERED, that the effective date of the Defendant' s
action denying a Special Use Permit to Plaintiff is hereby stayed,
that the Defendant prepare and file the record of the proceedings ,
and that the Defendant show cause why the herein Order staying
Defendant' s action should not be made permanent.
DONE AND SIGNED this day of GZ' , 1978.
-BY THE UR/114' n/ f `
District Judge
VERIFICATION
STATE OF COLORADO, )
ss .
County of Weld.
LLOYD L. LAND, the Affiant herein being of lawful
age and first being duly sworn upon his Oath on this 3rd day
of May, A.D. , 1978, deposes, states and declares as follows :
AFFIANT is the Vice-President of the Plaintiff,
ROLANDA FEEDS, INC . , a Colorado corporation; that Affiant has
read the foregoing MOTION to stay action by The Board of County '
Commissioners of Weld County, Colorado; that Affiant knows the
content of said Motion, understands same, directed that said
Motion be filed; and that the allegations made in said Motion
are true and correct according to the best information, know-
ledge and belief of Affiant.
AFFIANT further declares that he is duly authorized
by the Plaintiff to make this Affidavit.
AFFIANT FURTHER SAITH NAUGHT.
LLOYD L. LAND
//L9y/) Gj /AA' Affiant
as vi ce-President of
ROLANDA FEEDS INC.'
Plainti
Subscribed and sworn to before me on this f May,
A.D. , 1978, by Lloyd L. Land, as Vice President anda Feeds,
Inc. , a Colorado corporation.
My Commission expires:
drAir
car
Notary Public
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