HomeMy WebLinkAbout790500.tiff IN THE DISTRICT COURT
IN AND FOR TILE COUNTY OF WELD
STATE OF COLORADO
79-CV- 431
THE BOARD OF COUNTY COMMISSIONERS )
OF WELD COUNTY, COLORADO; THE )
TOWN OF FREDERICK, COLORADO; )
THE CITY OF FT. LUPTON, COLORADO; )
THE WEISNER SUBDIVISION PRESERVA- )
TION ASSOCIATION, )
Plaintiffs , ) BRIEF IN SUPPORT OF DEFENDANT ' S
MOTION TO DISMISS
vs . )
THE CITY OF NORTHGLENN, COLORADO, )
Defendant. )
COMES NOW the defendant City of Northglenn, Colorado , by and
through its special counsel, Musick, Williamson, Schwartz , Leavenworth
& Cope, P.C . , and respectfully submits the following brief in support
of its Motion to Dismiss .
SUMMARY OF THE PLAINTIFFS ' COMPLAINT
The plaintiffs ' complaint seeks relief predicated upon the
following set of facts, which are alleged, inter alia, in paragraphs
7-13 of its complaint : The City of Northglenn proposes to construct
a municipal sewage treatment facility upon a site owned by it and
located within the unincorporated territory of Weld County. The
site is zoned for agricultural use, and the Weld County zoning
resolution requires that a special use permit be issued before con-
struction of the facility may proceed. The zoning resolution provides
that the planning commission may recommend the issuance of a special
use permit, and that the County Commissioners may approve or disapprove
the issuance of a permit on the basis of several criteria set
forth in the zoning resolution. The Weld County planning commission,
following two lengthy public hearings and an exhaustive record
gathering process , on February 20, 1979, recommended to the County
Commissioners that a special use permit for Northglenn be approved.
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960019
Following a third public hearing, the Weld County Commissioners
effectively denied Northglenn a special use permit by virtue of a
2-2 tie vote taken on February 26 , 1979 . Following the County
Commissioner ' s vote, the Northglenn City Council , on March 1 , 1979 ,
unanimously passed an Ordinance overruling the Weld County Commis-
sioners, and expressing Northglenn ' s determination to proceed with
its construction plans . Said Ordinance, which is acknowledged in
paragraph 13 of the plaintiffs ' complaint at page 4 , is attached to
this brief as "Exhibit A. "
In their prayer for relief, the plaintiffs seek a declaratory
judgment that Northglenn is obligated to obtain a special use permit
from Weld County before proceeding with the construction of its
project, and further declaring that the Ordinance passed by Northglenn
overruling the decision of the Weld County Commissioners is null and
void . Plaintiffs further seek a preliminary and permanent injunction
enjoining Northglenn from constructing and operating a sewage treat-
ment facility at its Weld County site.
The sole issue before the Court in this case is whether the
City of Northglenn is empowered by law to override the County
Commissioner ' s denial of a special use permit and to construct its
utility facilities notwithstanding Weld County ' s objections to the same.
SUMMARY OF ARGUMENT
Northglenn ' s argument in support of its Motion to Dismiss is
:ceptionally simple and straightforward : It is the position of
the City of Northglenn that C. R. S . 1973, X30-28-110 (1) (c) vests
Northglenn with the unqualified authority to proceed with the
construction of municipal utility facilities within the unincorporated
territory of Weld County, notwithstanding Weld County ' s objections or
the refusal of its Board of County Commissioners to issue Northglenn
a special use permit for the project ' s construction .
Northglenn would respectfully submit that the essential and
undisputed facts in this case as recited above and as alleged , inter
alia, in paragraphs 7-13 of the plaintiffs ' complaint, entitle
Northglenn to judgment as a matter of law. In support of its position,
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Northglenn would refer the Court to C . R. S . 1973 , §30-28-110 (1 ) (a) - (c) ,
reproduced below, and the case law construing it , discussed infra .
ARGUMENT
I . UNDER THE TERMS OF C . R. S . 1973 , §30-28-110 (1 ) (c) ,
THE CITY OF NORTHGLENN IS EMPOWERED TO PROCEED
WITH THE CONSTRUCTION OF A MUNICIPAL UTILITY
FACILITY AUTHORIZED AND FINANCED BY IT, NOTWITH-
STANDING WELD COUNTY ' S OBJECTIONS OR THE REFUSAL
OF ITS BOARD OF COUNTY COMMISSIONERS TO ISSUE
NORTHGLENN A SPECIAL USE PERMIT FOR THE FACILITY ' S
CONSTRUCTION.
C. R. S . 1973 , §30-29-110 (1) (a) - (c) provides as follows :
(1) (a) Whenever any county planning commission or,
if there is none, any regional planning commission
has adopted a master plan of the county or any
part thereof, no road, park, or other public
way, ground, or space , no public building or
structure, or no public utility, whether publicly
or privately owned, shall be constructed or auth-
orized in the unincorporated territory of the
county until and unless the proposed location and
extent thereof has been submitted to and approved
by such county or regional planning commission .
(b) In case of disapproval , the commisi -,n shall
communicate its reasons to the board of county
commissioners of the county in which the public
way, ground , space, building, structure , or
utility is proposed to be located . Such board
has the power to overrule such disapproval by a
vote of not less than a majority of its entire
membership. Upon such overruling, said board
or other official in charge of the proposed
construction or authorization may proceed therewith.
(c) If the public way, ground, space, building, structure ,
or utility is one the authorization or financing of
which does not, under the law governing the same , fall
within the province of the board of county commissioners
or other county officials or board, the submission
to the commission shall be by the body or official
• having such jurisdiction, and the commission ' s
disapproval may be overruled by said body by a vote
of not less than a majority of its entire member-
ship or by said official . (Emphasis added. )
In several authoritative cases the Colorado courts have homed in
on the identical issue presented in this case , and have ruled that
the above-quoted statute means precisely what it says , to-wit : that
under the facts of the instant case Northglenn is free to proceed
with its construction plans in spite of the fact that its application
for a special use permit was denied by the Weld County Commissioners .
The first case to address the issue was City and County of Denver
v. Board of Commissioners of Arapahoe County, 113 Colo. 150 , 156 P . 2d
101 (1945) . That case involved the passage by Denver of an ordinance
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authorizing the acquisition of up to 2 , 000 acres of land in Arapahoe
County for the construction of a rHunicipal airport for Denver . Denver ' s
authority to acquire the property and construct the airport was
challenged by the Arapahoe County Commissioners who argued that
Denver was obligated to secure Arapahoe County ' s consent and authoriz-
ation before proceeding with its construction plans . Grounding its
position solidly in Section 9 , Chapter 45A, Cumulative Supplement
to 1935 C. S .A. (currently codified as C.R. S . 1973, §30-28-110 (1) ) ,
Denver replied, correctly, that Arapahoe County ' s consent was irrelevant
to Denver ' s right to proceed with its airport plans .
Concurring strongly with Denver ' s position, the Colorado Supreme
Court held that the language of the statute, particularly that portion
presently codified as C. R. S . 1973 , §30-28-110 (1 ) (c) , gave Denver,
not Arapahoe County, "the ultimate voice on whether the project shall
be carried out. " Id . at 105 . The Court further held that that
section of the statute completely negated Arapahoe County ' s contention
that it was vested by state law with the exclusive authority to enforce
its zoning regulations . Repeatedly, the Court referred to the
statute in support of its holding that Denver could, by a majority
vote of its City Council , "overrule and nullify" any objections
which Arapahoe County had concerning the project . Id . at 105 .
Even the fact that Denver had failed to submit its plans to the
Arapahoe County planning commission as a matter of course under Section •
( 1 ) (a) of the statute proved irrelevant to the Court . Declaring that
the statute clearly vested Denver with "the right to override a
disapproval by the Planning Commission , " the Court ruled that the
trial court had erred in enjoining Denver from carrying out its
construction plans . Id . at 105. Indeed , since Denver was empowered
by statute to overrule the county and proceed with its plans in any
event, the Court dismissed the injunction as being totally in vain --
something which the law does not countenance, and which "would have
availed the county nothing ," Id. at 105 .
It is futile and useless to enjoin the city
from carrying out a project which it is
asserting a right and actively attempting to
carry out, because it has not or in the future
might not , though possessing the power, overrule
the Planning Commission ' s disapproval if such
disapproval of the plan should be voiced . Id . at 106 .
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Equally compelling authority for Northglenn ' s position is found
in the case of Reber v. South Lak. ;ood Sanitation District, 147 Colo.
70 , 362 P . 2d 877 (1961) . In that case the South Lakewood Sanitation
District (District) , pursuant to statutory authority , determined that
a sewage disposal plant should be built and selected a site for that
purpose in Jefferson County. In anticipation of opposition to the
plant ' s construction, the District commenced an action in the district
court for a declaratory judgment that it had the right to proceed with
its plans notwithstanding Jefferson County ' s objections . Upon a
stipulated set of facts which are strikingly similar to the facts of
the instant case, the district court entered judgment in favor of the
District and against Jefferson County.
The pertinent facts in that case included the following: (1) the
site selected by the District was considered the optimum site, and
was chosen after substantial evidence had been presented supporting
its selection; (2) the project plans were submitted to the Jefferson
County planning commission pursuant to C. R.S . 1973, §30-28-110 (1) (a) ;
(3) the planning commission denied approval of the project (as
opposed to the Weld County planning commission which recommended in
favor of the issuance of a special use permit for Northglenn ' s project) ;
and (4 ) the District ' s Board of Directors voted to override the
county ' s denial and proceed with its project in spite of Jefferson
County ' s objections . Given those facts , Jefferson County accepted
the district court ' s judgment as a fait accompli , and did not appeal
the decision.
An intervening property owner, however, did appeal . It was the
appellant ' s contention that before proceeding with construction, the
District was obligated to go before the Board of County Commissioners
and secure a reversal of the planning commission ' s denial . In
response, the District argued successfully that C .R.S . 1953 ,
§106-2-9 (1) (c) (currently codified as C.R.S . 1973, §30-28-110 (1) (c) )
vested it with the power to overrule the planning commission since
the proposed facility was "authorized and financed" by the District,
not by Jefferson County.
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Holding that C . R. S . 1953 , 5106-2-9 (1) (c) "controls the instant
controversy, " the Supreme Court unanimously adopted the District ' s
position that the statute operated to remove the issue of project
site selection and construction from the county ' s jurisdiction and
placed it exclusively within the jurisdiction and prerogative of
the District . Id . at 879 . Indeed, the Court took pains to note
that the relationship which the General Assembly had established in
C. R. S . 1953 , §106-2-9 (1) (c) , "is a relationship which has been found
to exist by courts even without such definite statutory direction as
found in the statute. In the absence of such statutes , courts of
last resort have recognized that districts , authorities and other
state authorized governmental subdivisions have the power to overrule
or disregard the restrictions of county or municipal zoning regulations. "
(Citations omitted. ) Id . at 879-880 .
Further support for the correctness of Northglenn ' s position
is found in the case of Blue River Defense Committee v. Town of
Silverthorne, 33 Colo . App. 10 , 516 P . 2d 452 (1973) . Construing
C .R.S . 1963 , §106-2-9 (currently codified as C .R. S . 1973 , §30-28-110),
the Court of Appeals held that the towns of Silverthorne and Dillon
were statutorily empowered to construct a sewage treatment plant
outside their corporate limits in Summit County notwithstanding the
objections of the county or any of its residents . The only affirmative
obligation imposed upon Silverthorne and Dillon under the terms of
the statute was the submission of the proposal to the county planning
commission pursuant to Section 1 (a) of the statute -- even though,
as the court conceded, the planning commission ' s disapproval could
be overridden by Silverthorne and Dillon pursuant to the authority
contained in Section 1 (c) of the law, currently codified as C . R. S .
1973 , §30-28-110 (1) (c) . Id . at 454 .
As the law cited in support of this motion makes abundantly
clear, Northglenn ' s only obligation under C . R. S . 1973, §30-28-110 (1) (a)
was to submit its plans to the Weld County planning commission. City
and County of Denver v. Board of Commissioners of Arapahoe County,
supra; Reber v. South Lakewood Sanitation District, supra ; Blue
River Defense Committee v. Town of Silverthorne, supra . The facts
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show that that obligation was complied with. Complaint at paragraph
10 , page 3 . The facts further show that the planning commission
approved of Northglenn ' s application for a special use permit, and
recommended that a permit be issued . Id . While certainly Northglenn
was gratified by the planning commission ' s approval , it was not critical
to the implementation of Northglenn ' s plans . As the above-discussed
Supreme Court opinions so clearly hold, even if the planning commission
had denied Northglenn ' s request , Northglenn is explicitly empowered
by C. R. S . 1973 , §30-28-110 (1) (c) to overrule the county and proceed
with its construction plans. City and County of Denver v. Board of
Commissioners of Arapahoe County, supra; Reber v. South Lakewood
Sanitation District, supra.
II . BY APPEARING BEFORE THE WELD COUNTY COMMISSIONERS
FOLLOWING THE PLANNING COMMISSION ' S APPROVAL
OF NORTHGLENN ' S SPECIAL USE PERMIT APPLICATION,
NORTHGLENN IS IN NO WAY ESTOPPED FROM PROCEEDING
WITH ITS CONSTRUCTION PLANS AS AUTHORIZED BY C .R. S .
1973 , §30-28-110 (1) (c) .
The facts demonstrate unequivocally that in the process of
locating its utility facilities in the unincorporated territory of
Weld County, Northglenn has strictly toed the letter of the law.
Indeed , in the interests of comity and preserving as much good will
as possible. between itself and its Weld County neighbors , Northglenn
has done its utmost to ensure that the spirit of the law is respected
as well . In accordance with C . R.S . 1973 , §30-28-110 (1) (a) , Northglenn
submitted its project plans to the Weld County planning commission
in February of this year, and a special use permit for the project
was recommended by the planning commission on February 20 , 1979 .
Under the explicit terms of Section 1 ( a) of the statute , Northglenn
had fully satisfied its statutory obligations at that point, and was
at liberty to proceed with the construction of its project . Reference
to C. R. S . 1973 , §30-28-110 (1) (c) and the above-discussed cases
demonstrates that the County Commissioner ' s approval or disapproval
was superfluous at best , and its failure to approve the issuance of
a special use permit is of absolutely zero legal consequence or effect
upon Northglenn .
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In light of Northglenn ' s clear entitlement under the law to
overrule Weld County ' s denial of a special use permit, the plaintiffs '
arguments (contained in paragraphs 27 , 28 , 31 , and 34 of the complaint)
that Northglenn is "estopped" from asserting the invalidity of the
County Commissioner ' s actions, or that Northglenn has somehow "waived"
its right to allege its "immunity" from Weld County regulations is
preposterous. As a matter of law, the facts alleged in the complaint
fail to make out a case of estoppel . The rule is well established
that "estoppel can arise only where the one relying thereon has changed
his position to his material detriment because of the conduct of the
other party. " Thomas v. First National Bank, 97 Colo . 474 , 51 P . 2d
589, 591 (1935) ; Williams v. Hankins , 75 Colo . 136 , 225 P. 243 (1924) .
As in the Thomas case, supra, "The record here is wholly lacking in
substantial evidence" that the Weld County Commissioners have relied
to their detriment upon Northglenn ' s appearance before them on February
26, 1979. Id. at 591 . The fact is that the County Commissioners
have not changed their position at all in reliance upon any actions
by Northglenn.
Furthermore, it is axiomatic that as a political subdivision of
the state, "a county and its commissioners possess only such powers
as are expressly conferred upon them by the constitution and statutes ,
and such incidental implied powers as are reasonably necessary to
carry out such express powers . " Board of County Commissioners of the
County of Dolores v. Love, 172 Colo. 121 , 470 P. 2d 861 , 862 (1970) ;
Board of County Commissioners of Pitkin County v. Pfeifer , Colo .
546 P . 2d 946 (1976) . As has been amply demonstrated , the statute in
question, C .R.S . 1973, §30-28-110 (1) confers absolutely no power upon
the Weld County Commissioners to subject Northglenn to Weld County ' s
regulatory processes . By appearing before the County Commissioners
on February 26 , 1979 , following the planning commission' s approval of
its special use permit, Northglenn could not possibly have conferred
upon the County Commissioners any powers in excess of those "expressly
conferred" upon them by the legislature . Board of County Commis-
sioners v. Love, supra at 862 . Having no power over the City of North-
glenn before the hearing, there is no support in the law for the County
Commissioners ' contention that somehow they acquired power over
Northglenn following the hearing.
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Indeed , it is the law of this state that counties exist "only
for the convenient administration of the state government and to
carry out the will of the state. " Board of County Commissioners of
the County of Otero v. State Board of Social Services , 186 Colo . 435 ,
528 P. 2d 244 (1974 ) . Northglenn would submit that it is difficult
to imagine a more dispositive expression of the will of the state
than that found in C. R. S . 1973 , §30-28-110 (1) (c) . The law as
pronounced by our Supreme Court, and as set forth in this brief,
demonstrates the state ' s will quite convincingly : Northglenn is
empowered to proceed with the construction of its municipal utility
facilities notwithstanding Weld County ' s objections or the refusal of
its County Commissioners to issue a special use permit for the project.
The fact that the facility is being constructed by Northglenn
in its proprietary capacity (as alleged in paragraphs 30-31 of the
complaint at page 7) is irrelevant. The City of Denver , the South
Lakewood Sanitation District, and the towns of Silverthorne and Dillon
were all acting in their proprietary capacities when the Supreme Court
upheld their entitlement to proceed in the face of any county opposition
pursuant to C. R. S . 1973 , §30-28-110 (1) (c) . City and County of Denver
v. Board of Commissioners of Arapahoe County , supra; Reber v. South
Lakewood Sanitation District, supra . It is respectfully submitted
that those decisions control the instant case as well .
CONCLUSION
In light of the principles and authorities cited herein , and
the undisputed facts demonstrating its entitlement to the relief
sought , the City of Northglenn respectfully submits that its Motion
to Dismiss the plaintiffs ' complaint herein should be granted .
Respectfully submitted , r
MUSICK;WILLIAMSOp, SCIIWARTZ ,
LEAVE0r0R7 & COPE, P .C.
By ;7J lkW( /( 1 ( U1li`
a
lA
A n . Schwartz-; #6799
John D. Musick Jr. , #341
Joseph A. Cope , #7633 CJ
Special Counsel to the
City of Northglenn, Colorado
Post Office Box 4579
Boulder, Colorado 80306
51 (303) 499-3990; (800 ) 332-2140
/
Dated this I day of July, 1979 .
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CERTIFICATit OF MAILING
The undersigned hereby certifies that a true and correct
copy of the foregoing Motion to Dismiss and Brief in support
thereof was placed in the U. S . mail , postage prepaid to :
Lee D. Morrison, Esq.
Asst. Weld County Attorney
915 10th Street
Greeley, Colorado 80631
Francis K. Culkin, Esq .
720 South Colorado Blvd.
Denver , Colorado 80222
wt
Dated this 3 "— day of July, 1979 .
Beth McEntee
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EXHIBIT A
•
BY THOMAS,RARRY BURBACR, DAWSON, EIODGES, HOOD, NODERDAK, SHANNON
COUNCILMAN'S FILL
ORDINANCE NO.
No. CB-496 533
Series of- 1979
SERIES OF 1979
A BILL FOR A SPECIAL ORDINANCE APPROVING THE CONSTRUCTION OF A WASTE-
WATER TREATMENT AND AGRICULTURAL WATER REUSE FACILITY RY THE CITY OF NORTH-
GLENN UPON LANDS OUNED BY THE CITY OF NORTHGLENN IN THE WEST ONE-HALF OF
SECTION THIRTY-SIX, TOWNSHIP ONE NORTH, RANGE SIX==TY-EIGHT WEST OF THE SIXTY
PRINCIPAL MERIDIAN, WELD COUNTY, COLORADO, AND DECLARING AN EtERGENCY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF NORTILCLENN, COLORADO:
Section 1. Intent and Purpose.
(a) It is the intent of the City of Northglenn, Colorado, to
construct a wastewater treatment and agricultural water reuse facility
as an inherent and necessary component of the City's water management
program;
•
(b) Pursuant to this intent, the City has purchased land, to wit:
.The West One-Half (W1/2) of Section Thirty-six (36), Township One (1) North,
Range Sixty-eight 68) West, of the Sixth Principal Meridian, Weld County,
Colorado.
(c) The City Council has been advised by the City Manager and'
the employees and consultants employed by the City concerning the opera-
tional and economic factors relating to the construction of the facility •
upon the described lands, and also concerning the impact of the facility
upon the surrounding lands.
(d) Pursuant to Section 208 of the Clean Water Act, the City
' has been designated a wastewater treatment management agency, and the City
is obligated to provide water and wastewater utility services within the
. City of Northglenn.
CB-496
3-1-79
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(e) By special election the electorate of the City of North-
glenn has authorized and directed the city to construct and operate
water and wastewater utility systems for the benefit of the residents
of the city.
(f) Pursuant to C.R.S. 1973, section 30-28-110(1) (a) and
(c) , the city has submitted the location and extent of the facility
to the Weld County Planning Commission for its approval.
(g) Following public hearings and submittal of public comment,
the Weld County Planning Commission has recommended approval
of the facility.
(h) The City has also submitted the location and extent
of the facility to the Board of County Commissioners of the County
of Weld for its review, as a matter of intergovernmental consultation
and cooperation.
(i) Following public hearings, the Board of County Comm-
issioners of the County of Weld, upon a tie vote, failed to reach
a conclusion regarding the facility.
(j) By virtue of contract between the City and the Farmer' s
Reservoir and Irrigation Company, the City is contractually
committed to construct the facility in the manner, location and
extent as was submitted to the Weld County Planning Commission
for its review.
(k) Upon consideration of all relevant factors, including
but not limited to the following: the favorable economics of
constructing and operating the facility at the site, the geology
of the site, the compatible land uses surrounding the site, the
operational flexibility afforded by locating the facility at
the site, the site's proximity to public rights of way, the minimal
impact of locating the facility at the site upon the environment,
3-1-79
the improbability b£ the facility having a detrimental impact upon
,surrounding property values, the facility's enhancement of the Weld
and Adams County comprehensive plans, and the favorable impact on
urban sprawl caused by locating the facility at the site and not
using lands already committed to urban development, the City Council
determines it to be essential and proper to the exercise of the
rights and duties of the City of Northglenn that the City's waste-
water treatment and agricultural water reuse facility be located
at the site.
Section 2. Planning Commission Action Confirmed. Thr action of the
Weld County Planning Commission approving the construction of the
City of Northglenn's wastewater treatment and agricultural water
reuse facility pursuant to C.R.S. 1973, Section 30-28-110 (1) (a)
is hereby confirmed, any contrary interpretation being overruled
pursuant to C.R.S. 1973, 30-28-110(1) (c) .
Section 3. Construction Authorized.
The City Manager is authorized and directed to proceed with the
planning, design and construction of the City of Northglenn Waste-
water Treatment and Agricultural Water Reuse Facility upon lands
located in the West one-half (W 1/2) of Section Thirty-six (36) ,
Township One North, Range Sixty-eight West of the Sixth Principal
Meridian, Weld County Colorado, in accordance with the Charter,
Code and Ordinances of the City of Northglenn.
3-1-79
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Section 4. Emergency Declared.
The City Council finds that because the approval of other agencies
of the State of Colorado and the United States, necessary for
the completion of the Water Management Program, are contingent
upon the resolution of any confusion surrounding this issue,
and because delay in completion of the water and wastewater project
will result in extra costs to the city and its residents, the
foregoing ordinance is necessary for the preservation of public
property, health, peace and welfare.
Introduced, read and passed the First day of March, 1979.
6
• ALVIN B. THOMAS
MAYOR
ATT
--�+�SU4RLEY F'iIITTE�
Y CLERK
APPROVED AS TO IORM:
CHARLES L. SHARP, R.
CITY ATTORNEY
3-1-79
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