HomeMy WebLinkAbout790506.tiff IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF WELD
AND STATE OF COLORADO
Civil Action No. 792 CVS30 Div.
THE CONSOLIDATED DITCHES COMPANY OF )
WATER DISTRICT NO. 2 ; THE BOARD OF )
COUNTY COMMISSIONERS OF WELD COUNTY; )
THE TOWN OF FREDERICK, COLORADO; THE )
CITY OF FORT LUPTON, COLORADO; THE )
WEISNER SUBDIVISION PRESERVATION )
ASSOCIATION; MELVIN POTTER, )
EDWARD QUINLAN, FERNE SKIDMORE, )
AND BARBARA. HERNANDEZ , ) COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF,
Plaintiffs, ) FOR MANDAMUS, AND FOR
vs . )
REVIEW OF AGENCY ACTION
THE COLORADO WATER QUALITY CONTROL )
)
COMMISSION; THE COLORADO WATER
)
QUALITY CONTROL DIVISION; AND THE
)
CITY OF NORTHGLENN;
Defendants . )
I .
INTRODUCTION
This is a suit for declaratory relief, injunctive
relief, mandamus , and review, of agency action seeking to declare
null and void the action of the Water Quality Control Commission
in authorizing the City of Northglenn to locate, construct and
operate a sewage treatment plant and appurtenant structures in
Weld County, Colorado. The plaintiffs seek an order compelling
the Water Quality Control Commission and the Water Quality Control
Division to adhere to provisions of. the Colorado Water Quality
Control Act, the Commission ' s duly promulgated regulations pursuant
to that Act, and the Colorado Administrative Procedure Act . Plain-
tiffs also seek an order reversing the Commission ' s decision for
lack of evidence . Finally, plaintiffs seek injunctive relief pro-
hibiting the City of Northglenn from commencing construction of
the proposed sewage treatment works .
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JURISDICTION AND VENUE
The Court has jurisdiction and venue over this action
pursuant to the Colorado Water Quality Control Act, C .R.S . 1973 ,
25-8-101 et . seq . , The State Administrative Procedure Act,
C.R.S . 1973 , 24-4-101 , et . seq . , The Uniform Declaratory Judg-
ments Law, C .R.S . 1973, 13-51-101 , et . seq . , Colorado Rule of
Civil Procedure 57 , and Colorado Rule of Civil Procedure 106 .
III .
THE PARTIES
1 . The Consolidated Ditches Company of Water District
No. 2 is composed of thirteen ditches and their shareholders who
divert water out of the South Platte River below the Denver-Metro
sewage treatment plant to the confluence with the Saint Vrain
River. These ditches provide water for irrigation of more than
60, 000 acres . The proposed Northglenn sewage lagoon system will
take both direct and return flow from these farmers, by cessation
of Northglenn discharge through the Denver-Metro sewage treatment
plant, and the drying up of irrigated land as part of Northglenn ' s
plans will directly injure the productivity of wells operated by
farmers served by these ditches and impair the agricultural economy
of the area .
2 . The Board of County Commissioners of Weld County is
the governing board of the County of Weld, a body corporate and
politic and a political subdivision of the State of Colorado, and
is therefore vested with the authority to manage the affairs of
Weld County . The Board, and the departments of Weld County acting
as agents for the Board, is charged with the maintenance of the
public health, safety, prosperity and welfare of the citizens of
Weld County. The Board is specifically charged with the enactment,
administration and enforcement of zoning regulations for the non-
incorporated portions of the county pursuant to C .R .S . 1973 ,
h
§ 30-28-101 , et . seq. 29-20-101 , et . seq. and other state statdes ,
including the Solid Wastes Disposal Sites and Facilities Act,
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C .R.S . 1973 , § 30-20-101 et . nq . The construction of the North-
glenn facility proposed to be located in an unincorporated area
of Weld County will affect the health, safety, prosperity and
welfare of Weld County and its citizens . The County is aggrieved
by the Water Quality Control Commission ' s action, since the
Commission failed to consider and comport with the long range
comprehensive planning for the area in violation of the Commission ' s
Enabling Act and its own regulations, and the Commission ' s action
amounts to an order to the County authorizing construction of the
facility despite the county ' s express disapproval .
3 . The City of Fort Lupton is a Colorado political sub-
division located in Weld County and is located downstream from
the proposed sewage treatment facility . A cross-connection
exists between Fort Lupton ' s water supply and the Bull Canal .
The combination of Fort Lupton ' s water supply and the nitrate
laden water being discharged into the Bull Canal and the proposed
sewage treatment facility can harm the City of Fort Lupton and its
citizens .
4 . The Town of Frederick is located approximately five
(5) miles downstream on the Bull Canal from the site of the pro-
posed sewage treatment facility. The facility will empty secon-
darily treated sewage into the Bull Canal which passes uncovered
through the Town of Frederick close to the municipal school . This
will be dangerous to the health and welfare of the citizens of
Frederick. Frederick is surrounded by fields which are owned and
irrigated by the Farmers Reservoir and Irrigation Company (FRICO)
members . The partially treated effluent will be used by FRICO
members to irrigate their fields , causing health problems to the
citizens of Frederick. The proposed sewage treatment facility
is either located on , or in, the immediate vicinity of the fault.
Given the close proximity of Frederick to the proposed sewage treat-
ment facility, this constitutes an extreme danger to the health and
welfare of the citizens of Frederick. The water that will be dis-
charged from the sewage treatment facility into the Bull Canal will
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be excessively high in nitr f -,s . Frederick ' s water supply will
be irreparably harmed by the high level of nitration in this
water. The Town of Frederick will be deprived of an adequate
water supply for recently annexed land if the sewage treatment
facility is constructed . The water supply of Frederick is drawn,
at least in part, from the Arapahoe Aquifer . The location of the
projected facility is on the recharge area of the Aquifer . If
the facility is constructed, it will cause irreparable damage
to the water supply of Frederick .
5 . The Weisner Subdivision Preservation Association
(hereinafter Association) consists of the inhabitants of Weisner
Subdivision . Weisner Subdivision is located a short distance
from the proposed sewage treatment plant and will be harmed in
the following fashion :
a) The wells of the inhabitants of Weisner Sub-
division may become contaminated by seepage from the sewage treat-
ment plant. The acquifers which supply the inhabitants ' wells
may be damaged by the sewage treatment plant.
b) The inhabitants of Weisner Subdivision will
be subjected to a foul odor.
c) The inhabitants of Weisner Subdivision will
suffer aesthetically from living in close proximity to a 55 foot
high wall constructed as a part of the plant .
d) The property values of the inhabitants of
Weisner Subdivision will drop drastically.
e) The inhabitants of Weisner Subdivision will
be plagued by noxious insects as a result of the plant .
f) The inhabitants of the subdivision will be
subjected to severe health problems as a result of the use of
treated sewage to irrigate the farms that surround their homes .
6 . Melvin Potter, Edward Quinlan , Ferne Skidmore, and
Barbara Hernandez are inhabitants of the Weisner Subdivision .
These individuals live in close proximity to the sewage treatment
plant and will be harmed in the following fashion:
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a) The wells n1 the inhabitants of Weisner
Subdivision may become contaminated by seepage from the sewage
treatment plant. The acquifers which supply the inhabitants '
wells may be damaged by the sewage treatment plant.
b) The inhabitants of Weisner Subdivision will
be subjected to a foul odor .
c) The inhabitants of Weisner Subdivision will
suffer aesthetically from living in close proximity to a 55 foot
high wall constructed as a part of the plant.
d) The property values of the inhabitants of
Weisner Subdivision will drop drastically.
e) The inhabitants of Weisner Subdivision will
be plagued by noxious insects as a result of the plant.
f) The inhabitants of the subdivision will be
subjected to severe health problems as a result of the use of
treated sewage to irrigate the farms that surround their homes .
7 . The Water Quality Control Commission, pursuant to
C .R.S . 1973 , 25-8-101 , et . seq. , is a creature of Colorado law
charged with the responsibility, inter alia , to perform duties
with respect to the location , design, construction, financing,
and operation of sewage treatment plants in the State of Colorado
as part of a comprehensive and effective program for prevention,
control, and abatement of water pollution and for water quality
protection throughout the State of Colorado.
8 . The Water Quality Control Division, of the Colorado
Department of Health, Division of Administration, pursuant to
C .R.S . 1973 , 25-8-101 , et . seq. , is a creature of Colorado law
• charged with the responsibility, inter alia, to administer and
abide by the duly promulgated regulations of the Water Quality
Control Commission.
9 . The City of Northglenn is a municipality organized
under and subject to the laws of the State of Colorado and is
subject to the provisions of the Water Quality Control Act,
25-8-101 , et. seq . , and Part 7 thereof regulating the location,
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•
design , construction, financin-1 and operation of its sewage
treatment plants .
IV
BASIC ALLEGATIONS
10 . The City of Northglenn has applied for and
received authorization from the Water Quality Control Commission
to locate , construct and operate a sewage treatment works in an
unincorporated portion of Weld County for the treatment of
largely domestic wastes . The wastes will be treated only to
secondary treatment levels and will be discharged into the
Bull Canal under plans and specifications reviewed and approved
by the Commission . The Commission has also approved federal
construction funds for the facility .
11 . Each of the parties is aggrieved by the failure
of the Colorado Water Quality Control Commission, and the Water
Quality Control Division ' s failure, to abide by provisions of
procedural and substantive law governing the Commission review
and authorization of the proposed Northglenn Sewage Treatment
Works .
12 . The Water Quality Control Commission has not
given notice of, nor rendered its decision on the Northglenn
proposal in accordance with the Stite Administrative Procedure
Act, C .R.S . 1973 ,24-4-105 , as amended , or the Water Quality
Control Act, C .R.S . 1973 , 25-8-401 .
13 . The Commission has not entered its written findings
and final order based upon evidence in the record as required by
the Water Quality Control Act , C .R.S . 1973 , 25-8-401 (4) & 404 (1) .
14 . The Commission has stated publicly that it does
not intend now or in the future to hold adjudicatory hearings
with respect to its statutory duty to review and authorize , or
refuse to authorize , the location , design , construction, financing,
and operation of sewage treatment plants. This policy of the
Commission has operated and will continue to operate to deny
the plaintiffs and other interested persons their right to
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procedural and substantive d process of law in violation of
the Colorado Constitution Article II , Section 25 .
15 . This unjustifiable and illegal policy of the
Commission is well illustrated by the present circumstances .
On April 2 , 1979 , the matter of the proposed Northglenn sewage
treatment works came before the Commission at its regularly
scheduled meeting . Plaintiffs were allowed to "participate"
at this meeting by offering comments but no witnesses were
placed under oath and no written findings and order based upon
evidence was ever entered as a result of the hearing. No
notice of hearing envisioned that the plaintiffs could parti-
cipate as "parties" or that an evidentiary hearing would be
held.
On April 5 , 1979 , the Commission wrote Northglenn
a two sentence letter authorizing the facility . The plaintiffs
received no notice from the Commission regarding its action.
When plaintiffs learned of the action a number of them moved
for reconsideration and were summarily denied reconsideration
on May 7 , 1979 . A number of these plaintiffs then filed for
judicial review on June 7 , 1978 , in The Town of Frederick et . al . ,
v. Colorado Water Quality Control Commission et. al . , Civil
Action No . 79 CV 3816 , and were greeted by the Commission ' s
motion to dismiss of June 27 , 1979 , alleging that these plaintiffs
did not have "party status" under the Administrative Procedure Act
and therefore were not entitled to judicial review of the Commission 's
action .
In reality, no final agency action had occurred with
respect to the Commission ' s duty under C .R.S . 1973 , 25-8-704 ,
because the Commission had bifurcated its consideration by
scheduling review of the sewage treatment plans and specifications
for its regular meeting of July 2 , 1979 .
The plaintiffs appeared at the July 2 meeting and
requested an adjudicatory hearing on Northglenn ' s application,
but this was denied in view of the Commission ' s pre-existing
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policy against adjudicatory li-wrings , but the Commission in
the same breath granted "party status" to the plaintiffs .
16 . Despite the fact that the Commission conferred •
•
"party status" on the plaintiffs at the July 2 meeting, the
Commission refused to allow plaintiffs the attendant rights
to which parties are entitled under the Administrative Proce-
dure Act. The opportunity for discovery of Northglenn ' s case
was denied, despite plaintiffs ' request; no witnesses were
placed under oath; a motion for reconsideration and a continuance
to present evidence were both denied ; no written findings and
order was issued , in violation of the Water Quality Control Act,
C .R.S . 1973 , 25-8-401 (4) and 25-8-404 (1) .
17 . No final and judically reviewable agency action
has yet occurred because of the Commission ' s failure to abide
by the required hearings and decision procedures , and failure
to serve the parties with a final written order as required by
the Water Quality Control Act, C.R.S . 1973 , 25-8-404 (2) , yet
the Commission maintains that its authorization of the Northglenn
project is final and Northglenn intends to act in reliance on
the Commission ' s authorization.
18 . The Commission ' s policy against adjudicatory
hearings and written findings , and denial of an adjudicatory
hearing and written findings in this instance, has the effect
only of shielding the applicant ' s proposal and the Commission ' s
decision-making process from evidentiary scrutiny and judicial
review, in contravention of statutory and constitutional law.
19 . The Water Quality Commission and Division also
failed to abide by the Commission ' s statute and its duly pro-
mulgated regulations governing review of sewage treatment works
in the following respects :
a) The Division did not prepare or present to
the Commission the analysis and summary of the Northglenn project
required by the Commission ' s duly promulgated rules, 5 C .C .R.
1002-12 ; 2 .2 . 6 . The analysis and summary, according to these
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rules , should have addressed Ley issues which bear directly
on the Commission ' s ability to consider and protect the public
interest and carry out the Commission ' s legal mandate. Such
material, absent in the record of these proceedings , should
have included Division analysis and Commission consideration
of "The existing sewage facilities and feasibility or cost
effectiveness of treating wastes in an areawide facility as
it relates to long-range planning; " "The effect of the wastes
from the proposed plant on existing or planned development as
it relates to long-range planning and protection of the public
health, welfare, and safety; " "Relationship of proposed facility
on any water supply intake, " "Impact on public health, welfare,
and safety, " and analysis and consideration of other key issues
required by the applicable Commission regulations ;
b) The Commission violated the Water Quality
Control Act, C .R.S . 1973 , 25-3-704 (2) and its duly promulgated
rules , 5 C .C .R. 1002-12 ; 2 . 2 . 3 (2) (3) , (4 ) & (5) by authorizing
the Northglenn project, and refusing to reconsider its authori-
zation, despite the fact that the Board of County Commissioners
of Weld County is unanimously opposed to the location of the
Northglenn sewage treatment works in Weld County, the project
does not conform with the local long-range plans or zoning
requirements, the project is opposed by the Weld County Health
Department, and Northglenn has not been qualified as an operating
agency by the Larimer-Weld COG in accordance with the applicable
areawide waste treatment management plan . The Weld County
Commissioners have an entirely separate interest than the
Commission at this time, since the Commission has authorized
the sewage treatment works in the face of express unanimous
disapproval of the project by the Board of County Commissioners.
c) The Commission failed to consider and determine
whether there would be foreseeable adverse effects on the public
health, welfare and safety, in violation of Commission rule
5 C .C .R. 1002-12 ; 2 . 2 . 2 (2) (6) , despite the fact that Northglenn ' s
plan is keyed on the dumpinu ni secondarily treated sewage into
open irrigation ditches which flow through schools, residential
neighborhoods and into reservoirs and waters which are used for
domestic application to lawns and gardens and water supply.
d) The Commission violated the Water Quality
Control Act, C .R.S . 1973 , 25-8-704 (2) by authorizing the North-
glenn sewage treatment works despite the fact that it and the
Division were aware that the Denver-Metro sewage treatment works ,
' where Northglenn ' s sewage is presently treated, is capable of
accommodating Northglenn ' s foreseeable sewage treatment needs .
In fact, the Division ' s staff during the review process had
concluded that the Northglenn proposal would only cause a prolifera-
tion of small sewage treatment works in violation of the statutory
policy and should be opposed . This evaluation was suppressed
within the Division and continued to be suppressed at the
Commission level . Had the Division been required to submit its
objective analysis and recommendation , as contemplated by the
Water Quality Control Act and the Commission ' s regulations, or
had the parties been afforded discovery rights, these facts
would have come to light .
20 . The Commission ' s authorization of the Northglenn
sewage treatment works was arbitrary and capricious and is not
supported by evidence in the record .
21 . An adequate record of the Commission ' s consideration
and decision was not kept or made .
22 . On July 24 , 1979 , the Commission denied these
plaintiffs ' motion for an adjudicatory hearing, and for recon-
sideration and appeal of the Commission ' s authorization of the
Northglenn sewage treatment works . This motion was denied
without notice to any of the plaintiffs except Consolidated
Ditches Company .
23 . On July 24 , 1979 , in its annual priority-point
funding review, the Commission reaffirmed its decision to award
bonus priority funding points to the Northglenn project, despite
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the fact that the Commission was made aware that Northglenn ' s
sewage effluent "reuse plan" is not innovative and , in fact,
is no different in concept than reuse by water rights holders
of effluent discharged from facilities like the Denver-Metro
and Fort Collins facilities . The Commission, arbitrarily and
capriciously, has awarded these special points to Northglenn
and has received special treatment accorded no other similarly-
situated facility .
24 . The Commission denied these plaintiffs ' request
for reconsideration, continuance, and evidentiary hearing ,
arbitrarily and capriciously,, despite the fact that substantial
new evidence showed that the United States Environmental Protec-
tion Agency was so concerned about the cost-benefit, public
health and other key issues that it had taken the unusual step
of commissioning an independent contractor to study the Northglenn
proposal .
25 . The Commission ' s action in authorizing the
Northglenn sewage treatment works constitutes an abuse of the
Commission ' s discretion and is not in accord with law.
V.
FIRST CLAIM FOR RELIEF
26 . Plaintiffs fully incorporate paragraphs 1
through 25 herein.
27 . A present controversy exists between the plaintiffs
and defendants necessitating a declaration of rights and duties of
the Commission and the plaintiffs with respect to whether the Com-
mission in considering a proposal to locate , construct , finance and
operate a sewage treatment works is required affirmatively to give
notice of the opportunity for an adjudicatory hearing, hold an
adjudicatory hearing, and render a decision by written findings
and order. The plaintiffs maintain that the Commission ' s authori-
zation of the Northglenn sewage treatment works is an "order"
within the meaning of the State Administrative Procedure Act,
C.R.S . 1973 , 24-4-102 (10) , is therefore "adjudication" under
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24-4-102 (2) , requiring applicnl.ion of the adjudicatory hearing
procedures by reason of 24-4-105 , as amended, and the Water
Quality Control Act, 25-8-401 & 404 . The defendants maintain
that the Commission ' s authorization of the Northglenn plant was
not adjudication and is not subject to a hearings proceeding
but rather may be considered and determined in an informal
fashion at a Commission "meeting . "
28 . A present controversy exists between the plaintiffs
and defendants necessitating a declaration of rights and duties
as to whether Northglenn has received a legally valid authoriza-
tion - from the Commission allowing the location, construction,
operation and financing of the Northglenn sewage treatment works
proposed for Weld County . Plaintiffs maintain that no valid
authorization has been granted or obtained and that Northglenn
may not proceed with this project.
WHEREFORE the plaintiffs pray for a declaratory judgment
holding that the Commission ' s authorization of the Northglenn
sewage treatment works proposed for location in Weld County is
null and void, that Northglenn may not proceed with constructing
the project, and that consideration of a sewage treatment works
is adjudication subject to the notice, hearings and decision
requirements of the State Administrative Procedure Act and the
Water Quality Control Act .
V.
SECOND CLAIM FOR RELIEF
29 . The plaintiffs fully incorporate paragraphs 1
through 25 herein .
30 . The Commission has adopted and implemented a de facto
policy precluding the holding of adjudicatory hearings with respect
to applications for and consideration of sewage treatment works .
Without mandamus by this Court the Commission will not adhere to
the law governing this kind of proceeding and will not afford
these plaintiffs and other interested parties their procedural
and substantive rights within respect to whether the Northglenn project
should or should not be authorized by the Commission .
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31 . The Division is not submitting to the Commission
the proper analysis, summary and recommendation of sewage treat-
ment work proposals required by the Commission' s regulations,
and the Commission is not requiring such information from the
Division. Such violation of law will continue by both the
Division and Commission, unless this Court were to mandamus
the Division and Commission to adhere to the duly promulgated
regulations and the Water Quality Control Act requiring an
objective review of the Northglenn proposal by the Division and
presentation to the Commission fully open to the public .
WHEREFORE the plaintiffs pray that mandamus issue to
the Water Quality Control Commission and Division requiring these
public entities to abide by the Commission ' s duly promulgated
regulations governing review of applications to locate, construct,
design , operate and finance sewage treatment works, and , in parti-
cular , the proposed Northglenn facility;, and, further , mandamus the
Commission and Division to consider the long-range planning for
the area and the issue of proliferation of small sewage treatment
works posed by the proposed Northglenn facility; and , further, •
mandamus the Commission to issue notice of and hold an adjudicatory
hearing on the Northglenn proposal , should Northglenn wish to
pursue its application.
VII .
THIRD CLAIM FOR RELIEF
32 . Plaintiffs fully incorporate paragraphs 1 through
25 herein .
33 . The City of Northglenn is prohibited by the Water
Quality Control Act from commencing construction of its proposed
sewage treatment works without a proper and valid authorization
from the Commission, C .R.S . 1973 , 25-8-704 . A proper and valid
authorization has not been received . Yet Northglenn has stated
publicly its intention to proceed in reliance on the Commission ' s
invalid actions in this matter, and plaintiffs will suffer grievous
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and irreparable injury unles construction of the proposed
sewage treatment works is restrained and enjoined. Such
injunction is necessary in aid of the statutory mandate of
the Commission embodied in C .R.S . 1973 , 25-8-704 .
WHEREFORE the plaintiffs pray that the City of Northglenn
be restrained and enjoined from commencing construction of its
proposed sewage treatment works to be located in Weld County.
VIII .
FOURTH CLAIM FOR RELIEF
34 . Plaintiffs fully incorporate paragraphs 1 through
25 herein.
35 . The action of the Water Quality Control Commission
in authorizing the location , construction, design , operation and
financing of the proposed Northglenn sewage treatment works was
arbitrary and capricious, a denial of statutory right, contrary
to constitutional right, power, privilege, or, immunity, in excess
of statutory jurisdiction authority, purposes , or limitations, not
in accord with the procedures or procedural limitations of the
State Administrative Procedure Act or the Water Quality Control
Act, an abuse and clearly unwarranted exercise of discretion,
unsupported by substantial evidence when the record is considered
as a whole, and is otherwise contrary to law.
WHEREFORE the plaintiffs pray that the authorization by
the Water Quality Control Commission of the Northglenn sewage
treatment works be reversed and the matter remanded to the Commission
for review and proceedings in accordance with law, should the City
of Northglenn wish to pursue its application .
Plaintiffs further pray that the Water Quality Control
Commission certify and deliver to the Court the record of its
proceedings in the matter of the proposed Northglenn sewage
treatment plant .
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Plaintiffs further pray, as to all claims for relief,
for their costs of suit and for such other and further relief
as the Court deems just and proper.
Respectfully submitted,
For The Consolidated Ditches Company
of Water District No. 2
ci
Gregory J. Hobbs, Jr. #0009
Attorney at Law
Davis, Graham & Stubbs
950 Seventeenth Street, Suite 2600
Denver, CO 80202
(303) 892-9400
For the Board of County Commissioners
of Weld County
Le D. Morrison #8067
Assistant County Attorney
915 Tenth Street
Greeley, CO 80631
(303) 356-4000 ext. 369
For the Town of Frederick, the
City of Fort Lupton, The Weisner
Subdivision Presentation Association,
Melvin Potter, Edward Quinlan ,
Ferne Skidmore and Barbara Hernandez
e I((: ,/,'//, ' 76,t "14---,.__-,___________
Francis Culkin #2969
Attorney at Law
720 South Colo. Blvd .
Denver, CO 80222
(303) 759-3495
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