HomeMy WebLinkAbout20180270.tiffRESOLUTION
RE: APPOINT COMMISSIONER CONWAY TO CLARIFY FINDINGS OF FACT FOR
RESOLUTION TO COMPLY WITH ORDER OF REMAND IN CASE NO. 2017 CV 30547
- WW, LLC
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, on January 17, 2018, Weld County District Court Judge Todd Taylor issued
an Order of Remand in Case No. 2017 CV 30547, a copy of which is attached hereto, wherein he
ordered the Board of County Commissioners to make findings of fact for inclusion into Resolution
#2017-1683, dated June 21, 2017, concerning the application of WW, LLC, for Use by Special
Review Permit, USR17-0016, and
WHEREAS, the Board deems it advisable to appoint Commissioner Conway to write said
clarified findings of fact and to submit a draft thereof for consideration of approval by the Board
on its Regular Agenda on February 14, 2018.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld
County, Colorado, that Commissioner Conway be, and hereby is, appointed to write findings of
fact for inclusion into Resolution #2017-1683.
BE IT FURTHER RESOLVED by the Board that Commissioner Conway is asked to submit
a draft of said findings of fact to the Board for consideration of approval on its Regular Agenda on
February 14, 2018.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 24th day of January, A.D., 2018.
BOARD OF COUNTY COMMISSIONERS
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Weld County Clerk to the Board
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2018-0270
PL2475
DISTRICT COURT, WELD COUNTY, COLORADO
901 9th Avenue, P.O. Box 2038, Greeley, CO 80632
(970) 475-2400 DATE FILED:
CASE NUMBER:
January 17, 2018 4:42 Pry
2017CV30547
COURT USE ONLY
Plaintiff.
WW, LLC
v
Defendants:
The Board of County Commissioners of Weld
County, Colorado, et al.
Case No.
2017 CV 30547
Division 4
Order Remanding Case
The plaintiff, WW, LLC, challenges the denial by the Weld County Board of
Commissioners of WW's application for a use by special review (USR) permit,
USR 17-0016, under C.R.C.P. 106. Because the Board of County Commissioners
has not properly certified a copy of the Weld County Code and did not make
sufficient findings of fact to support its decision, I remand the case.
First, the Board has unduly complicated my review here by failing to
include a certified copy of the Weld County Code in the record. It is not proper
for a court to take judicial notice of a municipal code. See Novak v. Craven, 195
P.3d 1115, 1119 (Colo. App. 2008). In 1975, a division of the Colorado Court of
Appeals held that a court is not empowered to take judicial notice of county
zoning resolutions and regulations. See E & G Inc. v. San Miguel County Bd. of
Com'rs, 541 P.2d 86 (Colo. App. 1975). In 1979, the General Assembly enacted
§ 30-15-404, C.R.S., which provides that a county's "ordinances may be proven
by the seal of the county, and, when printed in book or pamphlet form and
purporting to be printed and published by authority of the county, the same
shall be received in evidence in all courts and places without further proof." But
this statute has not been amended to account for the now widespread -use of the
2018-0270
internet, and does not authorize a court to accept an electronic version of a
county's ordinances.
Because the Board did not provide the Weld County Code in a printed,
published form — nor as part of the certified record — it is not proper to take
judicial notice of the Code provisions the Board relies on in it Answer Brief
Merely attaching a copy of the various code sections to its Answer Brief under
the authority of C.A.R. 28(f) — which does not apply to this C.R.C.P. 106
action —is not sufficient to put those Code sections before the court.
Second, while the Board is not required to make exhaustive findings, the
Board must make findings in support of its decision on the material issues. See
Colorado State Bd. of Medical Examiners v. Ogin, 56 P.3d 1233, 1238 (Colo. App.
2002). Where a board of county commissioners fails to make adequate findings
in the record, it is appropriate for the trial court to remand the case to the board
with directions to make findings of fact necessary for the court's review of its
action. C.R.C.P. 106(a)(4)(IX); Bd. of County Comm'rs of Larimer County v. Conder,
927 P.2d 1339, 1350 (Colo. 1996).
While the Board did include a certified copy of the resolution denying
WW's USR permit application, the Board also attempts to rely on the "findings"
of individual county commissioners. But this reliance is misplaced because the
court can consider only the Board's findings. Under C.R.C.P. 106(a)(4), it is the
Board's exercise of its quasi-judicial authority that the court is reviewing, not
the reasons why an individual county commissioner voted in favor of the
Board's action. Without the Board explicitly adopting a "finding" made by an
individual commissioner through its resolution (or some similar action), there is
no way to determine if a majority of the commissioners agree with that finding.
Order Remanding Case
WW, LLC v. The Board of County Comm'rs of Weld County, et al., 2017 CV 30547
Page 2 of 3
The Board's Resolution here states the criteria that it determined WW failed
to meet in its USR permit application, but offers little to no rationale as to why
the application fails to meet the stated criteria. It is true that our Supreme Court
has held that, in the absence of express findings of fact, there are implicit
findings "when the state of the evidence is such as would warrant the making
of such finding[s] by the board." Sundance Hills Homeowners Ass'n v. Bd. of
County Comm'rs, 534 P.2d 1212, 1216 (1975) (quoting Cugini v. Chiaradio, 189
A.2d 798, 802 (R.I. 1963)). Consequently, the lack of specific findings of fact is
not necessarily fatal to the Board's decision — so long as the record contains
competent evidence to support that decision. So it is generally not necessary
that the Board make explicit and technical findings; it may, instead, make only
findings of ultimate facts. Id.
Still, the Board needs to make some findings in support of why WW failed
to meet each specific criterion — especially where an individual commissioner
may have expressed a contrary viewpoint —so that I can determine if the record
supports the Board's ultimate resolution of a disputed question of fact.
Accordingly, this case is remanded for (1) the Board to supplement the
record with a certified copy of the relevant portions of the Weld County Code,
and (2) to make the findings of fact necessary for judicial review. The Board has
35 days from today to comply.
So Ordered:
January 17, 2018
BY HE COURT:
2•/ 4t.-
Todd Taylor
District Court Judge
Order Remanding Case
WW, LLC v. The Board of County Comm'rs of Weld County, et al., 2017 CV 30547
Page 3 of 3
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