HomeMy WebLinkAbout790415.tiff 1E:2 n_v. I I I It.IlVI. 4 /7 .1M('CNtr, IN Civil At 31(IN TED] DISTRICT COURT em
STATE OF COLORADO, $TY ccoelf
Mts
DIV. .
County of WELD y
CIVIL ACTION No. I
THE CITY OF LONGMONT, A II
MUNICIPAL CORPORATION,
•
P I.AI NTIPI
WELD COUNTY, COLORADO and THE BOARD
THEREOF SUMMONS
OF COUNTY COMMISSIONERS , /STATE OF
Warning: !I This summons duel; not contain
COLORADO, and NORMAN CARLSON; JUNE ney duel.,'' number of the civil aelinn, thee
the oettolaml way not now be On Iilc tcilh
STEINMARK; LYDIA DUNBAR; LEONARD the LEVIi: of the enact. 'Hie complaint must
h I'ded s(dMu ten days after the summons is
.erwal.or the CC)!.R I' \A ill BE WI 11101
ROE; and C.W. KIRBY, in their capacit3 .nlinsoi rioN to r'All ! R Fnlrrul'.h
AND VIII ACTION Wn 1, rte nl r_nit n
Ills -Il,s,sI'I) WrfiOur ruf:.II DICE AND
as County Commissioners , Wt rout'l' ECIZTIiiiiz NOTICE. Inforntulion
limn the ei,url concerning Ibis (Rd action
l)f:FL1SLlAY'1' s m:ry oat hr 4v,tilahle unlit ten days aft, r !Ire
summon,. is sercrd.
THE PEOPLE OF THE STATE OF COLORADO,
TO THE DEFENDANT ABOVE NAMED GREETING:
You arc hereby summoned and required to tilt with the ('Irilk :ul ❑IL.WI r to Ill' ruuy,Ltittt teithin 21)
days alter service of Ihis snnunous neon pall. If vnu fall .,I to Jn, n� mu•III Ili tl'lultll ‘‘ill Im i:th !I a uiltr)
you for the relief delininded ill the complaint.
If service upon vinl i- made nulaldr HIP tiLttt. III 1 � Inr:u ln,or Ilc In01111 :1t loll, Ire if a copy of ILc ciao-.
plaint. be nut derVl'1 I ❑I 11 )III W it h Iltis .uuuuons, eau are rwluireh to !lie vVur a In-Aver to (Er 'nuydainl
within 30 days after .ervire Ilf this summons upon pint.
This is ;ill art ion*
for Verified Complaint for Declaratory Judgment
Pursuant to Rule 57 , Colorado Rules Civil Procedure,
attached hereto.
li
Rued , 19 7
/
IIi x.1111 (ill I±'I. A.FOODULVI.) felt l'L;INTlFI.
Ralph S . J . ephsohn #588
Br . City Atto ney, City of Longmont
DEN Ty (TIT!, Civic Center Cor5r olte]c:: ILV AI iultNEs.
xtll,: - rhi„�:I•�,,,,�., Longmont , CO COl,.80I5011 IIlI,T;el ;a:776-j050 ext .
tln��l �lln,•. 206
(SEAT. OF COURT)
'11 the ummons is I l l h.LH ti or I o I how, a is.c, II ,,ph h, tin rrhrl'ienewdrd.
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__ 710 41
PL0639
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF WELD
STATE OF COLORADO
Civil Action No .
THE CITY OF LONGMONT , )
A MUNICIPAL CORPORATION, )
)
Plaintiff )
)
vs . ) VERIFIED COMPLAINT
WELD COUNTY, COLORADO and ) FOR DECLARATORY JUDGMENT
PURSUANT TO RULE 57
THE BOARD OF COUNTY ) COLORADO RULES CIVIL PROCEDURE
COMMISSIONERS THEREOF, STATE OF )
COLORADO, and NORMAN )
CARLSON; JUNE STEINMARK; )
LYDIA DUNBAR; LEONARD ROE ; )
and C . W. KIRBY in their )
capacity as County Commissioners , )
)
Defendants . )
COMES NOW Plaintiff City of Longmont by Ralph S . Josephsohn,
City Attorney thereof, and makes Complaint for a declaration of
rights , status and legal relations between it and the Defendants
Weld County and the above named persons in their capacity as
County Commissioners pursuant to Rule 57 , Colorado Rules Civil
Procedure, and in support thereof would show unto this honorable
Court as follows :
1 . That Plaintiff is a Colorado Municipal corporation
located within the County of Boulder , and organized as a home rule
city pursuant to Article XX, Colorado Constitution.
2 . That Defendant Weld County is a Colorado county
organized pursuant to Article XIV, Section 16 , Colorado Con-
stitution, and that the Defendant Board of County Commissioners
is the governing body of said County as set forth in Section 3-8
of the Home Rule Charter for Weld County and G.R.S. 1973, 30-11-103.
3 . That Defendant County through its said Board has promul-
gated Ordinance No . 53 captioned as follows :
AN ORDINANCE ESTABLISHING A SURCHARGE 1U COVER THE ACTUAL
AND NECESSARY COSTS OF LAND, LABOR, EQUIPMENT AND SERVICES
NEEDED IN THE OPERATION OF SOLID WAS1'LS DISPOSAL SITES AND
FACILITIES IN WELD COUNTY, COLORADO, AND ESTABLISHING A
WELD COUNTY SOLID WASTES DISPOSAL SITE AND FACILITY FUND,
all of which more fully appears from a copy of said Ordinance
hereto attached as exhibit "A" and made part hereof as if fully
set forth verbatim herein.
4 . That Section 1 of said Ordinance refers to C . R. S .
1973 , 30-20-115 , relating to the establishment of a "county
solid wastes disposal site and facility fund, and further provides
that the Board of County Commissioners may levy a solid wastes
disposal site and facility tax. . . on any taxable property within
said county, the proceeds of which shall be deposited to the
credit of said fund and appropriated to pay the cost of land,
labor, equipment, and services needed in the operation of solid
wastes disposal sites and facilities . Any county is also
authorized. . . to fix, modify, and collect service charges from
users . . . for the purpose of financing the operations at those
sites and facilities . " (emphasis supplied) .
5 . That the Plaintiff owns certain realty within defendant
County used and solely operated by it as a solid waste disposal
site, the title of which is evidenced and legal description
appearing in two warranty deeds filed with Weld County records
as Book 663 , Reception No . 1585178 , and Book 767 , Reception
No . 1689012 , copies of which deeds reflecting adjoining and
contiguous realty being attached hereto and made fully part
hereof as if fully set forth herein as exhibits "B" and "C"
respectively.
6 . That the aforesaid properties have not been taxed by
Defendant at any time reflecting municipal ownership , and no
claim has been made by Defendant to Plaintiff for the imposition
of such tax beyond the issues raised by said Ordinance.
7 . That Section 4 of the Ordinance seeks to establish
a "surcharge" to fund the Weld County Solid Wastes Disposal
Site and Facilities Fund to finance the
operation at all Weld County solid wastes disposal
sites and in particular to cover the costs of health
inspections , removal of litter from roadsides ,
establishment and construction of road access to
Weld County solid wastes disposal sites , financing
the Landfill Management Program, equalizing costs
of transfer sites in Weld County, Colorado , capital
outlay associated with the transfer site system,
insurance costs , Weld County staff support costs ,
financing the requirements for compliance with the
Resource Conservation and Recovery Act , costs of
designation of future site locations , and rectifying
-2-
environmental problems created by past
and future solid wastes disposal sites .
8 . That Article X, Section 4, Colorado Constitution
provides that "The property, real and personal , of. . . cities . . .
and other municipal corporations . . . shall be exempt from
taxation. "
9 . That Defendants have indicated to Plaintiff City
that, on and after August 1 , 1979 , the effective date of said
Ordinance, it will subject Plaintiff to the collection and
payment over to it of the so called five percent (5%) surcharge
on all dumping fees received by Plaintiff in its operation of
the said waste disposal site as set forth in Sections 2 and 3
of said Ordinance , and otherwise subject Plaintiff to the
provisions contained in said Ordinance .
10 . That Plaintiff through its Department of Public Works
is providing solid waste disposal services as a municipal
service, and that the aggregate of all fees and rates collected
by it, including fees collected by it at said Weld County site ,
nevertheless result in an annual operational deficit to it of
Thirty thousand ($30 , 000 . 00) dollars , more or less , in the
operation of such municipal service , which deficit constitutes
a burden on the general funds collected by Plaintiff.
11 . It is the position of Plaintiff that :
(a) The so called "surcharge" considered in the full
context of the Defendants ' said Ordinance represents a tax
permitted by C . R. S . 1973 , 30-20-115 on taxable property, and
that Defendants , acting as a home rule county, have acted in
excess of powers derived from Articles X and XIV of the Colorado •
Constitution, and that the application of said Ordinance to
Plaintiff is prohibited by said statutory and constitutional
provisions .
-3-
(b) The collection of "service charges" from users
of such sites authorized by C . R. S . 1973 , 30-20-115 , is not
provided for the funding of the solid wastes disposal site and
facility fund , but rather is restricted to the purpose of
financing the operations at those sites and facilities ,
applicable only to county operation of disposal sites , or in
any event, not applicable to the broad and sweeping funding
purposes set forth by said Ordinance.
(c) The Defendants have no authority to impose upon
Plaintiff Municipality the burden of acting as collection
agency, subject to inspection and accounting requirements, the
County only being authorized to collect service charges pursuant
to said C .R. S . 1973 , 30-20-115 .
WHEREFORE, It is respectfully prayed that this honorable
Court determine the legal rights and status of the parties in
relating to the aforesaid county Ordinance upon the issues
presented herein, and otherwise grant such other or additional
relief, including the awarding of costs of action incurred by
Plaintiff, as the Court may deem appropriate in the premises
presented.
Ra ph S . Jo ephsohn #588
City Attorney
City of Longmont
Civic Center Complex
Longmont , Colorado 80501
776-6050 ext . 206
-4-
STATE OF COLORADO )
ss .
COUNTY OF BOULDER )
I, Roy Howard, being first duly sworn upon my oath,
depose and say that I am City Manager of the City of Longmont ,
Colorado , and that I have read the above and foregoing Verified
Complaint for Declaratory Judgment Pursuant to Rule 57 , Colorado
Rules Civil Procedure , and that the facts stated therein are
true to the best of my knowledge and belief.
Dated this g7i day of July, 1979 .
ROY HOWARD
SUBSCRIBED and sworn to before me thisc2, day of
July, 1979 , by Roy Howard, City Manager of the City of Longmont ,
Colorado .
7
NOTAR PUBLIC /
My Commission Expires
March 5 , 1980 .
-5-
1
EXHIBIT A
ORDINANCE NO. 53
RE: AN ORDINANCE ESTABLISHING A SURCHARGE TO COVER THE ACTUAL
AND NECESSARY COSTS OF LAND, LABOR, EQUIPMENT AND SERVICES
NEEDED IN THE OPERATION OF SOLID WASTES DISPOSAL SITES AND
FACILITIES IN WELD COUNTY, COLORADO, AND ESTABLISHING A
WELD COUNTY SOLID WASTES DISPOSAL SITE AND FACILITY FUND.
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF WELD
COUNTY, COLORADO:
Section 1
There is , hereby, established a Weld County Solid Wastes
Disposal Site and Facilities Fund pursuant to the provisions of
Section 30-20-115, CRS 1973 . Said fund shall be administered
by the Weld County Treasurer pursuant to law.
Section 2
There is , hereby, established a surcharge in the amount
of five percent ( 5%) to be added to all dumping fees received
by any operator operating a solid wastes disposal site within
Weld County, Colorado .
Section 3
It shall be the duty of any operator of any solid wastes
disposal site in Weld County, Colorado to collect said surcharge
at the time dumping fees are collected and to remit the same to
the Weld County Treasurer on or before the 20th day of the
month following the month in which said surcharge is collected.
Section 4
The surcharge contemplated by this Ordinance shall be
deposited in the Weld County Solid Wastes Disposal Site and
Facilities Fund for the purpose of financing the operation at
all Weld County solid wastes disposal sites and in particular
to cover the costs of health inspections , removal of litter
from roadsides , establishment and construction of road accesses
to Weld County solid wastes disposal sites , financing the Landfill
Management Program, equalizing costs for transfer sites in Weld
County, Colorado, capital outlay associated with the transfer
site system, insurance costs , Weld County staff support costs ,
financing the requirements for compliance with the Resource
Conservation and Recovery Act, costs of designation of future
site locations, and rectifying environmental problems created by
past and future solid wastes disposal sites.
Section 5
All operators of solid waste disposal sites in Weld County,
Colorado, shall make available to the Board of County Commis-
sioners of Weld County, Colorado or their designated agents , all
books of account of said operator of solid wastes disposal sites
for auditing purposes to ensure compliance by said operators of
solid wastes disposal sites in Weld County, Colorado with the
provisions of this Ordinance.
Section 6
If any section, subsection, paragraph, sentence , clause or
phrase of this Ordinance is , for any reasons, held or decided to
be invalid or unconstitutional , such decisions shall not affect
the validity of the remaining portions . The Board of County Com-
missioners of Weld County, Colorado, hereby declare that it would
have passed this Ordinance and each and every section, subsection ,
paragraph, sentence, clause and phrase thereof irrespective of
the fact that any one or more sections, subsections, paragraphs,
sentences , clauses, or phrases might be declared to be unconsti-
tutional or invalid .
Section 7
This Ordinance shall take effect on August 1, 1979 pursuant
to Section 3-14 (2) of the Weld County Home Rule Charter.
-2-
The above and foregoing Ordinance No. 53 was passed, approved
and adopted this 25th day of June , A.D. , 1979 .
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, III//COLORADO
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Weld County Clerk and Recorder .
a Clerk to the B r -
APP
County Jerk
APP WED AS TO-FORM:
c---
/
County Attorney
PUBLICATION: June 28 , 1979 in the Platteville Herald
Date Presented : June 25 , 1979
,
-3-
��b 3 1555173 Ai'N 1 EXHIBIT B ireExts
.-1 'r Reception No Recorder.
• ]RECORDER'S STAMP II
THIS DEED, Made this 15th day of September ,
19 67 ,between H. H. POWELL, also known as
HOUCK H. POWELL of the
tT County of Boulder and State of Colo-
rado,of the first part,and CITY OF LONGMONT,
1-
ti
a municipal corporation a corporation-organized and
CO existing under and by virtue of the laws of the State of
CO
of the second part:
rl� WITNESSETII, That the said party of the first part, for and in consideration of the sum of
rtl Ten dollars and other valuable consideration DOLLARS,
to the said party of the first part in hand paid by the said party of the second part, the receipt whereof is
hereby confessed and acknowledged, h:8 granted, bargained, sold and conveyed, and by these presents do eS
O grant, bargain, sell, convey and confirm, unto the said party of the second part, its successors and assigns forever,
O all of the following described lot or parcel of land, situate,lying and being in the
O County of Weld and State of Colorado,to wit:
Ns The Northwest quarter (NW'g) of the Southeast quarter (SE") and the
Southwest quarter (SW',i) of the Northeast cptarl:er (NE"',i) of Section
w 8 Township two (2) North, Range sixty-eight West of
eight ( ) , g (68)
the 6th P. M. , Weld County, Colorado, together with all of SELLER' S
right to existing rights of way and easements for ingress and egress
to the property.
Documentary Fee Exempt- 1.32-13-'I (U) .
•
TOGETHER with nll and singular the hereditaments and appurtenances thereunto belonging or in anywise
appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and all
the estate, right, title, interest, claim and demand whatsoever of the said party of the first part, either in law
or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances.
TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the
said party of the second part, its successors and assigns forever. And the said part y of the first part, for
him sel t, his heirs, executors, and administrators, does covenant, grant, bargain and agree to and with
the said party of the second part, its successors and assigns, that at the time of the enscaling and delivery of
these presents, He is well seized of the premises above conveyed, as of good,,sure, perfect, absolute and
indefeasible estate of inheritance, in law, in fee simple, and ha s good right, full power and lawful authority to
grant,bargain,sell and convey the same in manner and form as aforesaid, and that the same are free and clear from
all former and other grants, bargains, sales, liens, taxes, assessments and encumbrances of whatever kind or nature
soever,
and the above bargained premises in the quiet and peaceful possession of the said party of the second part, its
successors and assigns, against all and every person or persons lawfully claiming or to claim the whole or any part
thereof, the said party of the first part shall and will WARRANT AND FOREVER DEFEND.
IN WITNESS WHEREOF, The said party of the first part ha s hereunto set his hand
and seal the day and year first above written.
•
Signed,Sealed and Delivered in the Presence of .L../ [SEAL]
-y LI
•
_�rsr ,<`? „L. r-�C�i� ISEALI
[SEAL]
STATE OF COLORADO
County of
Bold der fss.
T)n 161. .elgoinginstrument was acknowledged before me this 1 5 tit day of Sep Lumber,
1477 ;b E' ' 1I.� rk, Powell , also known as 1[OUCI< H. POWELL
My cfnmiiesimt eipit?{:s December 22, 1969.
per; ^l . .i ct
o- AVI1 itSs myhapd,pnd official seal.
N),tnry 1'obnc.
No. 952. WARRANTY DEED TO CORPORATION—For Photographic Record.
—Bradford-Robinson Printing Company,1024-1G Stout Street,Denver,Colorado
/A:2 �k.1 Recorded at o'clock. t./.,'. Mi\Y i 1(116 EXHIBIT C
CQ p
Reception No ,�( 19(),dl l:p... S I.F.E. SHId iGF, JR. itecnrder_
T 1 1
GEORGE M. NJCASLIN
9
0 whose address is 1303 Longs Peak Avenue, Longmont,
.r
GT
County of Boulder , State of
cwt
-I Colorado , for the consideration of
CD
Sixty thousand and No/100 --- $60, 000.00) --
0? dollars, in hand paid, hereby sell(s) and convey(s) to
`ry CITY OF LONGMON'T, A Municipal corporation ;
0
whose address is Longmont County of
,-I
Boulder , and State of Colorado the following* real ci
property in the
f-, -- County of Weld , and State of Colorado, to wit:
The Last half (Lid) of the Southeast quarter (SE',i) , and the SouthcasL
quarter (SE 4) or the Northeast quarter (NE',1) o.f SeeLi.un right (8) -
N Township two (2) North, Range sixty-eight (OS) West of the 6th P.M. ,
Weld County, Colorado;
AND, that portion of the Southeast quarter (Slit,;) of the Northeast_
quarter (NE1,i) of the Northeast quarter (NEI,i) of sa id Seca ion c i gilt
(8) , lying Southeasterly of the right of way for ingress and egress
hereinafter described .
Grantor further grants to Gran Lee a right of way for ingress and
egress to and from the above described property being till rly (30)
feet in width as said right of way exists at the Cilne of this
agreement ; said easement beNig described as running over the East
thirty (30) feet of the Northeast quarter (NE1n) of the Northeast
quarter (NE- ) of said Section eight (8) ; and over a strip of land
thirty (30) Lent in width being a Lornl-_inuat ion of the easement Howe
granted anti PLUM [Mr, souihwester_Iy to the North Iinc of the Southeast
quarter (SE1,1) of the Northeast quarter (NE',I) of said Section eight
(8) •
Doc. Fee Exempt - L37-13-4(b) .
with all its appurtenances, and warrant(s) the title to the same, subject to
Signed this 18th day of April , 19 72 ,
-pelt" higthitt.....4.41,1‘;14
STATE OF COLORADO,
` iss.
.....,v,gounty of 130ULM;R
3C/it 'lit
t.
' hq.FOPVOiRtinstrument was acknowledged before me this 18 t It
dayz$E . l�pjr.i'D.`IS i , 19 72 , by George N. McCas I in
k• \o A 1 r •y '
Np t rinlyfiiski�l oipires \ L. 'i'1 /'/7
nwitnescrriy halt Ond official seal. _, / '
/
v OQ = / /
p .
t CF •
Gp� , r
t).•.A....,. , �N5tury Public
Statutory Aek,eowird gm eat.If by natural person or persons hero insert name or names: If by poi=on act lot: in reine:.enin Ilse or
official c9,aclly or as attorney-it,-fact then Insert name of po,.von as executor :,tiorney-h,-tact or othor e:q,aelly or drscrlp-
tiou: if by officer of corporation then insert name of ouch officer or offlcere as the president or of her officers of stark cor-
poration naming it.
No. 897. Warranty Deed—Short Form—Sec. 118-1.13,C.D.S.1963.--Bradford Publishing Co., 1824-46 Stout Street, Denver,Colorado- 10.69
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF WELD
STATE OF COLORADO
Civil Action No .
THE CITY OF LONGMONT, )
A MUNICIPAL CORPORATION, )
)
Plaintiff ) MOTION
vs . ) FOR PRELIMINARY INJUNCTION
WELD COUNTY, COLORADO )
and THE BOARD OF COUNTY )
COMMISSIONERS THEREOF , STATE )
OF COLORADO, and )
NORMAN CARLSON; JUNE )
STEINMARK; LYDIA DUNBAR; )
LEONARD ROE; C . W. KIRBY, )
in their capacity as )
County Commissioners , )
)
Defendants . )
COMES NOW the Plaintiff City of Longmont , by and through
Ralph S . Josephsohn, City Attorney thereof, and moves this Court
to issue a Preliminary Injunction pursuant to Rule 65 , Colorado
Rules Civil Procedure, enjoining the above named Defendants ,
and each of them, from applying and enforcing against Plaintiff
Municipality, Ordinance No . 53 , promulgated by Defendants and
relating to the establishment of a surcharge on dumping fees
paid at solid waste disposal sites in Weld County.
As grounds therefor Plaintiff refers to the facts set forth
in the Verified Complaint submitted herewith. These facts
demonstrate that immediate and irreparable injury will result
to Plaintiff, which is being subjected to taxation or require-
ments in excess of constitutional and statutory limitations and
authorizations .
Plaintiff further states that it believes no injury or
damage will be sustained by the County of Weld by the issuance of
preliminary relief, and although said Rule 65 , (2) (c) exempts
the municipal Plaintiff from giving security, it is willing to
provide substantial security to Defendants by withholding the
contested "surcharge" from paying users of its said disposal
site pending final determination of the issues presented by
this Court, and deposit said monies into an account , or with
the Registry of this Court, as the Court may deem appropriate.
Ralph S . Jos phsohn #588
City Atto ey
City of ngmont
Civic Center Complex
Longmont , CO 80501
776-6050 ext . 206
-2-
IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF WELD
STATE OF COLORADO
Civil Action No .
THE CITY OF LONGMONT, )
A MUNICIPAL CORPORATION, )
)
Plaintiff )
)
vs . ) MEMORANDUM BRIEF
)
WELD COUNTY, COLORADO and THE ) IN SUPPORT OF MOTION
BOARD OF COUNTY COI'IUSSIONERS THEREOF, . )
STATE OF COLORADO, and NORMAN ) FOR PRELIMINARY INJUNCTION
CARLSON; JUNE STEINMARK; LYDIA )
DUNBAR; LEONARD ROE; and C.W. )
KIRBY in their capacity as )
County Commissioners , )
)
Defendants . )
COMES NOW plaintiff City of Longmont by Ralph S .
Josephsohn, City Attorney thereof, and respectfully submits
this Brief in support of the Motion for Preliminary Injunction
filed in the above captioned matter .
In Colorado, a county and its commissioners possess
only such powers as are expressly conferred upon them by the
Constitution or Statute and such incidental implied powers as
are reasonably necessary to carry out such express powers .
Board of County Commissioners of Jefferson County v. City
and County of Denver, 571 P . 2d 1094 (1977) . A county is not
an independent governmental entity existing by reason of any
inherent sovereign authority of its residents ; rather , it is
a political subdivision of the State , existing only for the
convenient administration of the state government , created
to carry out the will of the state. Board of County Commissioners
of the County of Dolores v. Love, 470 P . 2d 861 (1970) . The
powers conferred on counties thusly limited stand in distinct
contrast to the authority provided by Article XX, Section 6 ,
Constitution of Colorado in its home rule provisions applicable
to municipal bodies politic , granting to the people of appli-
cable municipalities the "full right of self-government in
both local and municipal matters . . . " City of Ft . Collins v.
Public Utilities Commission, 69 Colo . 554, 195 P . 1099 (1921) ,
Burks v. City of Lafayette, 142 Colo . 61 , 349 P . 2d 692 (1960) .
Article XIV, Section 16, Constitution of Colorado ,
recognizes mandatory compliance by home rule counties with
functions and powers required by statute, and further recognizes
permissive exercise of functions and powers "as may be authorized
by statute applicable to all home rule counties , except as may
be otherwise prohibited or limited by charter or this Con-
stitution. " Recognition of the aforesaid constitutional ex-
pression is set forth in Article II of the Home Rule Charter
for Weld County, a copy of which is hereto attached as Exhibit
In reviewing Part 1 , C . R. S . 1973 , 30-20-101 , et seq .
relating to Solid Wastes Disposal Sites and Facilities , pro-
vision is made that "the governing body of any city. . .by
ordinance may designate and approve one or more solid wastes
disposal sites and facilities , either within or without its
corporate limits , if designated and approved by the board of
county commissioners , as its exclusive solid wastes disposal
site and facility or sites and facilities , and thereafter each
such site and facility shall be used by such city. . . for the
disposal of its solid wastes ; but prior to any such designa-
tion and approval , such governing body shall hold a public
hearing to review the disposal method to be used and fees to
be charged, if any. " (emphasis supplied) . C . R. S . 1973 ,
30-20-107 . From the above, it appears that defendant , acting
through its City Council designates its wastes disposal sites
and prescribes , without county participation, fees to be
charged , if any.
-2-
A city or county, or association thereof may establish
and operate approved sites and facilities under such terms and
conditions as may be approved by the governing bodies of the
governmental units involved , or the governmental unit may
contract with non-governmental operators to operate such
facility. C. R. S . 1973 , 30-20-108 (1) and (2) . Governmental
units are also provided condemnation powers pursuant to
C . R. S . 1973 , 30-20-108 (3) .
It is now appropriate to examine the statutory under-
pinnings of the Weld County "surcharge" , premised on C .R. S . 1973 ,
30-20-115 , which in its authorization to counties contemplates
permissive powers . An evaluation of this provision reveals
two separate revenue resources , namely the levy of a solid
wastes disposal site and facility tax, or other tax authorized
by law, on any of the taxable property within said county, and
also service charges from users . (emphasis supplied) .
Unfortunately, defendant Weld County in its legislative wisdom
created the designation by Ordinance of "surcharge" , which
must be now evaluated as to which, if either , tax or service
charge is involved. A reading of the statute discloses
fundamental differences not only in the resource base but also
in the application of the revenues obtained:
(a) The tax "proceeds . . . shall be deposited to the
credit of said (county solid wastes disposal site and facility)
fund. " Although initially the creation of said fund by the
county is permissive, if such tax is to be imposed, then the
creation of the fund is mandatory, since the proceeds of the •
tax may not be otherwise credited.
(b) Appropriation from the fund is also designated
to " . . . pay the cost of land, labor , equipment , and services
needed in the operation of solid wastes disposal sites and
facilities . . . " It is clear that the application of the tax
is designed to generally financially assist the county in
its solid wastes programs , to wit , off site acquisition and
development .
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(c) The county is also authorized, after public hearing,
t) fix, modify, and collect service charges from users . . . "for
the purpose of financing the operations at those sites and
facilities . " The revenues derived from these charges , as
opposed to tax revenues , are not earmarked for deposit to the
credit of the aforesaid fund, and rather than being destined
for the general development of solid waste programs , are collected
for the purpose of financing the specific operations at the site
and facility involved. This revenue source requires the county
to conduct a prior public hearing in the establishment of service
charges , which requirement should be read in conjunction with
the provision setting forth municipal public hearings on fees
contained in C. R. S . 1973 , 30-20-107 .
Basic to the construction of legislative enactments
is the principle that the entire statute is intended to be
effective . C.R. S . 1973 , 2-4-201 (b) . A statute must be read
and considered as a whole , so as to ascertain the intent of
the general assembly. Howe v. People, 178 Colo . 248 , 496 P . 2d
1040 (1972) . And every word is to be given effect if possible .
Johnston v. City Council, 177 Colo . 223 , 493 P . 2d 651 (1972) ,
Blue River Defense Comm. v. Town of Silverthorne, 33 Colo .
App. 10 , 516 P. 2d 452 (1973) . In presuming that the Colorado
General Assembly did not draft the specific language of
C . R. S . 1973 , 30-20-101 , et seq. idly, it is significant to
observe that it did not promulgate the following in C .R. S . 1973 ,
30-20-115 :
The board of county commissioners . . .may
levy a solid wastes disposal site and
facility tax, in addition to any other
tax authorized by law, on any of the
taxable property within said county , or
otherwise establish service charges to
be collected from users . . . the proceeds
which shall be deposited to the credit
of said fund. . .
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In further examining the statute , it is apparent
that both governmental units and the private sector may
operate solid wastes disposal sites , person being defined as
"an individual , partnership, private or municipal corporation,
or other association of persons" , C. R. S . 1973 , 30-20-101(3) ,
subject to the person obtaining a certificate of designation
from the county. C. R. S . 1973 , 30-20-102(1) . Although not
defined as a person, the county too may operate such site .
C.R. S. 1973 , 30-20-108 . Although the county must "approve
its own operations , it is not defined as a "person" , and
apparently need not issue itself a certificate of designation.
(a) The General Assembly therefore provided per-
mission to counties for the imposition of taxes generally
funding the wastes disposal program of counties , however ,
exempted territories owned by public entities in recognition
of Article X, Section 4, Constitution of Colorado .
(b) The General Assembly did not include service
charges as a resource to fund the county solid wastes disposal
site and facility fund, and restricted such application to
financing the operations "at those sites" .
(c) The General Assembly granted the governing
body operating such site , after public hearing, to establish
any fees to be charged. C. R. S . 1973 , 30-20-107 .
(d) The General Assembly authorized the county to
fix, modify and collect service charges contemplated in
(b) above.
(e) The General Assembly provided for governmental
units to act in association under "terms and conditions as
may be approved by the governing bodies of the governmental
units involved. " (Emphasis supplied) . C . R. S . 1973, 30-20-108 (2) .
It is respectfully submitted that the intent of the
General Assembly was as follows :
(a) That taxing powers were granted to counties
over the private sector .
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(b) That tax exempt (governmental) units other than
the county operating disposal sites have authority to otherwise
establish fees .
(c) That if the county operates its own such site ,
it can collect service charges from users , since it could not
tax itself, and requires a funding source in parallel to the
fees other governmental entities are permitted to establish
in the operation of their extraterritorial sites .
CONCLUSION
It is respectfully submitted that the Weld County
Ordinance in contention is void and inapplicable to plaintiff
City of Longmont, and violative of Articles X and XIV, Colorado
Constitution, C. R. S . 1973 , 30-20-101 et seq . and the Charter
of said defendant county. The Ordinance attempts to fund by
"surcharge" its Solid Wastes Disposal Site and Facility Fund,
designated for application in a broad panoply of direct and
general county wide purposes related to solid wastes disposal .
Because the said statute restricts such funding to a tax on
property, at best, the Ordinance is inapplicable to plaintiff.
It is further otherwise submitted that the surcharge funding
is void in toto in that it is not a tax, and therefore may
not be broadly applied as specified in said Ordinance under
the permissive provisions and restraints imposed by the
General Assembly.
Although the "surcharge" is not a direct tax on
plaintiff, it does invade the local province of Longmont to
establish fees on the operation of its said disposal site ,
which is predicated on public hearing before its governing
body . The unilateral surcharge did not involve municipal
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consent, and if sustained by this Court , would facilitate
future modifications usurping plaintiff' s ability to establish
reasonable fees in addressing its disposal deficit . And the
"surcharge" is not a service charge, in that a service charge
is an established and anticipatable fee not dependent on the
vagaries of plaintiffs fee schedule . Further , no authority
is indicated to impose collection or accounting duties upon
the plaintiff, such function being clearly designated to the
County, in the event the "surcharge" should be valid .
Respectfully submitted,
Ralph S . Josep sohn #588
City Attorney
City of Longmo t
Civic Center Complex
Longmont , CO 80501
776-6050 ext. 206
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Exhibit A
ARTICLE II
COUNTY POWERS
1 Section 2-1 -- General Powers .
2 Except as this Charter provides to the contrary , Weld County
3 shall exercise and provide all mandatory and permissive county
4 powers and functions as provided by law and shall have all rights
5 and powers now or hereafter granted or allowed by the laws of the
6 United States and under the Constitution and laws of the State of
7 Colorado for exercise by counties ; in addition thereto it shall be
g authorized without amendment to this Charter to provide all functions ,
9 services , and facilities and to exercise all prerogatives , functions ,
10 duties , and powers that may now or hereafter be authorized by the
11 Constitution of the State of Colorado and statutes enacted pursuant
12 thereto for home rule counties , it being the intent and purpose of the
13 people in adopting this Charter to vest their county government with
14 all of the prerogatives and powers of local government that are now
15 or in the future shall be available to it .
16
17 Section 2-2 -- Exercise of Power.
lB All executive , administrative , and legislative powers ,
19 functions , duties and prerogatives now or hereafter possessed by
20 Weld County shall be vested in a Board of County Commissioners
21 and in the Elective Officers provided for by this Charter . Executive
22 and administrative powers , hereby vested in the Board may , to the extent
23 provided in this Charter , be exercised by the departments herein es-
24 tablished as agents of the Board . The legislative powers of the County
25 shall be exercised only by the Board .
w
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1 Section 2-3 -- Cooperative Agreements .
2 The county shall have the power to enter into contracts or
3 agreements with other governmental units for joint use of
4 buildings , equipment , and facilities , and for furnishing and re-
5 ceiving commodities or services , including law enforcement ser-
6 vices . Such agreements or contracts shall be authorized only by the
7 Board of County Commissioners .
8
9 Section 2-4 -- Service Districts .
10 The county shall have the power , when authorized and per-
11 mitted by law , and requested by a district , to provide functions and
12 services within existing service districts . New service districts may
13 be created only after the purpose and boundaries of such district
14 have been submitted to and approved by a majority of those voting
4
15 electors living in and owning property in the district . The procedure
16 for designating and establishing special districts and submitting the
17 question to the voters shall be established by the Board .
18 Special districts may be created under such laws as are now in
19 effect or may hereafter be adopted .
20 The county shall have the power to charge , levy and collect such
21 taxes and other revenues as may be authorized or permitted by law or
22 this Charter within such service districts for the support of district
23 functions and services .
24
25 Section 2-5 -- Construction .
26 In this Charter no mention of a particular power or enumeration
27 of similar powers shall be construed to be exclusive or to restrict
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1 the authority that the county would have if the particular power
2 were not mentioned or the similar powers not enumerated . The
3 Charter shall be liberally construed , to the end that , within the
4 limits imposed by the Charter and by the law of the United States
5 and of the state , the county have all powers necessary or convenient
6 for the conduct of its affairs , including all powers that counties
7 may assume under the statutes of the state and under the provisions
8 of the state Constitution concerning county home rule .
9
10
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