HomeMy WebLinkAbout20162711.tiffRESOLUTION
RE: APPOINT COMMISSIONER KIRKMEYER TO CLARIFY FINDINGS OF FACT FOR
RESOLUTION TO COMPLY WITH ORDER OF REMAND IN CASE NO. 2015 CV 30776
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 August 9, 2016, Weld County District Court Judge Todd Taylor issued an Order
of Remand in Case No. 2015 CV 30776, a copy of which is attached hereto, wherein he ordered the
Board of County Commissioners to write a clarified findings of fact for inclusion into Resolution
2015-2491, and
WHEREAS, the Board deems it advisable to appoint Commissioner Kirkmeyer 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 October 3, 2016.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County,
Colorado, that Commissioner Kirkmeyer be, and hereby is, appointed to write a clarified findings of fact
for inclusion into Resolution 2015-2491.
BE IT FURTHER RESOLVED by the Board that Commissioner Kirkmeyer is asked to submit a
draft of said clarified findings of fact to the Board for consideration of approval on its Regular Agenda on
October 3, 2016.
The above and foregoing Resolution was, on motion duly made and seconded, adopted by the
following vote on the 22nd day of August, A.D., 2016.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
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Weld County Clerk to the Board
y Clerk to the Board
ounty Attorney
Date of signature: 9n1QO1,,
Mike Freeman, Chair
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2016-2711
BC0049
DISTRICT COURT, WELD COUNTY, COLORADO
901 9th Avenue, P.O. Box 2038, Greeley, CO 80632
(970) 475-2400
DATE FILED: August 9, 20
CASE NUMBER: 2015CV3
COURT USE ONLY
Plaintiffs: Motherlove Herbal Company; Indianhead
West Homeowners Association, Inc.; Rockin S Ranch
LLC; John Cummings; David Kisker; Gary Oplinger;
Wolfgang Dirks; and James Piraino
v.
Defendants: The Board of County Commissioners of
Weld County, Colorado; Martin Marietta Materials, Inc.;
Garrard Investments, LLC; Weld LV LLC; and Weld LV
II, LLC
Case No.
2015 CV 30776
Division 4
Order of Remand
Under C.R.C.P. 106(a)(4), the plaintiffs appeal the Weld County Board of
County Commissioner's (BOCC) decision to approve an Application for an
Amendment to a Site Specific Development Plan and for a Use by Special Review
(USR) Permit submitted by Defendant Martin Marietta. The standard of review
under C.R.C.P. 106(a)(4) is whether, on the basis of the whole record, the
ultimate findings of the BOCC are supported by any competent evidence.
W.C.C. § 23-2-230.D provides:
Upon the Board of County Commissioners making its final
decision, a resolution setting forth that decision will be drafted
and signed. A record of such action and a copy of the
resolution will be kept in the files of the Clerk to the Board.
Although there is no requirement that the findings be exhaustive, the
BOCC is required to include findings and conclusions to support 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 fails to make adequate findings in
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2016-2711
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the record, it is appropriate for the trial court to remand the case to the board
with directions to make findings of fact or conclusions of law necessary for the
subsequent 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).
The BOCC's Resolution here merely restates the criteria required under
W.C.C. § 23-2-230.B, which are conclusions of law. But it does not include any
findings of fact or rationale as to why the application meets the stated criteria.
Based on my review of the record, I conclude that the BOCC failed to set forth
specific findings of fact in the Resolution. I therefore cannot determine whether
the BOCC's ultimate findings are supported by competent evidence.
Our Supreme Court has held that, while not making factual findings is
obviously not good administrative practice, 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
factual findings is not necessarily fatal to the BOCC's decision so long as there
is sufficient evidence in the record to support the Board's decision. It is not
necessary that the BOCC make explicit and technical findings; it may, instead,
make only findings of ultimate facts. Id.
But the BOCC did not make any findings of fact here. And the state of the
evidence does not warrant automatic approval of the USR at issue without
express findings of fact. For instance, both the Department of Planning Services
Staff and the Planning Commission recommended denial of the application. In
their Resolution of Recommendation, they cited to several specific criteria in
support of denial, including that the proposed use is not consistent with the
Order of Remand
Motherlove Herbal Co. et al. v. Bd. of Cnty. Comm'rs of Weld Cnty. et at, 2015 CV 30776
Page 2 of 3
Weld County Comprehensive Plan' and that the proposed use is not
compatible with existing surrounding land uses. Specifically, they found that
the noise, odors, and traffic from the proposed use will cause disruption to the
nearby residential properties2 as well as health and safety concerns.
Furthermore, at the public hearing, the BOCC heard extensive testimony that
the proposed use is incompatible with existing residential uses; that it would
negatively impact surrounding property values; and that several of the studies
submitted by Martin Marietta were deeply flawed.
Ultimately, the BOCC is required to provide at least some basis for its
conclusions of law, and it failed to do so in its Resolution.
Accordingly, this case is remanded to the BOCC to make the requisite
findings of fact necessary for judicial review of its decision to approve the
application. The BOCC has 63 days from today to make its findings of fact and
to certify those finding as part of the record.
So Ordered:
August 9, 2016
BYTf� COURT:
2'/
Todd Taylor
District Court Judge
Both the Department of Planning Services Staff and the Planning Commission concluded
that the proposed use is not consistent with the Weld County Comprehensive Code for the
following reasons: (1) the proposed use is not directly related to, or dependent upon,
agriculture and it will be removing about 90 acres of Prime (Irrigated) Farmland from
production (W.C.C. § 22-2-20.G.1); (2) the area cannot support such development and is not
compatible with the region, as demonstrated by the five surrounding jurisdictions' referral
comments (W.C.C. § 22-2-20.G.2); and (3) the roadway facilities are not adequate to support this
industrial development (W.C.C. § 22-2-80.C.2).
2 There are 14 single-family homes/lots within 500 feet of the site and the Indianhead
Subdivision (approximately 100 lots) is located northeast of the site.
Order of Remand
Motherlove Herbal Co. et al. v. Bd. of Cnty. Comm'rs of Weld Cnty. et al., 2015 CV 30776
Page 3 of 3
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