The URL can be used to link to this page

Browse Search

Home My WebLink About790490.tiff 4 IN THE DISTRICT COURT IN AND FOR THE COUNTY OF WELD AND STATE OF COLORADO 79-CV-431 Division II THE BOARD OF COUNTY COMMISSIONERS ) OF WELD COUNTY , COLORADO ; THE ) TOWN OF FREDERICK , COLORADO; ) THE CITY OF FT . LUPTON , COLORADO ; ) BRIEF THE WEISNER SUBDIVISION PRESERVA - ) IN OPPOSITION TION ASSOCIATION , ) TO MOTION TO DISMISS Plaintiffs , ) AMENDED COMPLAINT vs . ) THE. CITY OF NORTHGLENN , COLORADO , ) ) Defendant . ) COMES NOW the Plaintiff, Board of County Commissioners , of the County of Weld, by and through the Weld County Attorney below named and submits the Following Brief in Opposition to Motion to Dismiss Amended Complaint : INTRODUCTION This is a suit for declaratory relief brought by the Plaintiffs in order to determine whether or not the City of Northglenn must receive permission from Weld County for the construction and operation of a sewage treatment facility in the Southwestern portion of Weld County . Injunctive relief is also sought to prevent the Defendant from constructing and operating said sewage treatment facility without first obtaining the necessary permits from the Board of County Commissioners of. Weld County . ' SUMMARY OF ARGUMENT Plaintiff, Board of County Commissioners of Weld County , submits that , under_ the Constitution and laws of the State of Colorado , the Board of County Commissioners of Weld County possesses the ultimate authority to grant or deny 790490 ?Loots �- permission for the constructs • ii of a sewage treatment facility within the unincorporated portions of Weld County . The source of that authority can be found , jointly or in the alternative in the following : The State statutes authorizing the regulation of zoning within the unincorporated portions ofcounties ; the County Home Rule Charter provisions of the Colorado Constitution; and case law limiting the authority of a municipality acting in a proprietary capacity or requiring a balancing of public interests where one governmental agency seeks to locate a facility within the jurisdiction of another . It is also the position of the Board that a Certi - ficate of Designation under the Solid Wastes Disposal Sites and Facilities Act must be obtained prior to the construc- tion and operation of the Northglenn facility . Furthermore , the City of Northglenn does not possess the authority under Section 30- 28 -110 (1) , 'CRS 1973 , to overrule the decision of the Board of County Commissioners of Weld County when a portion of the authorization and financing for said sewage treatment facility is within the jurisdiction of the Board . 1 . '1'11E BOARD OF COUNTY COMMISSIONERS • OF WELD COUNTY HAS 'Illli ULTIMATE AUTHORITY , WITHIN WILD COUNTY i;OVERNMENT, TO GRANT OR DENY PERMIS- SION FOR THE CONSTRUCTION OF lllli NORTIIGLENN SEWAGE TREATMENT FACILTTY . Plaintiff , Weld County , acting by and through the Board of County Commissioners of Weld Countv ,O, Colorado , is a Home Rule County, pursuant to Article XTV , Section 16 of the Colorado Constition and Section 3- 11 - 501 et seq . , CRS 1973 (1977 Repl . Vol . ) . The Constitution provides in part that - '' ( 1) Notwithstanding the provisions of sections 6 , 8 , 9 , 10 , 12 , and 15 of this article , the qualified electors of each county of the state are hereby vested with the power to adopt a home rule charter establishing the organization and structure of county government consis - tent with this article and statutes enacted pursuant hereto . (3) A Home Rule County shall provide 2 all mandatory county functions , services , and facilities and hall exercise all mandatory powers a may he required by • statute . (4) A Home Rule County shall be empowered • to provide such permissive functions , services , and facilities and to exercise such permissive powers as may he authorized by statute applicable to all Home Rule Counties , except as may he otherwise pro - hibited or limited by Charter or this Constitution . . . " Defendant asserts that the provisions of Section 30 -28 - 110 CRS 1973 ( 1977 Rep1 . Vol . ) grant to the Weld County Planning Commission the final. authority , within the Weld County goverment , to• approve of the Northglenn sewage treat - ment facility . The terms of the statute arc as follows : " ( 1 ) (a ) Whenever any county planning com- mission 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 w:r.y , ground, or space , no public huilding or structure , or no public utility , whether publicly or privately owned , shall he constructed or authorized in the unincorporated territory of the county until and unless the proposed location and extent thereof has been sub • - mitted to and approved by such county or regional planning commission . " However , this argument fails to take into account the pro - visions of the Weld County Home Rule Charter which grant the Board of County Commissioners the final authority to approve or disapprove of such a facility . Section 30 -11 - 511 , CRS 1973 (1977 Repl . Vol . ) provides that - "Any power , function , service or facility vested by statute in a particillar county officer , agency , or hoard , including the Board of County Commissioners , ' may be exercised or performed within a Home Rule County by such county officer , agency , hoard , or by any other county officer , agency , or • board designated in the hone Rule Charter . " The powers of the Board are set forth in the Charter as follows - "All executive , administrative , and legis - lative powers , functions , duties and pre- rogatives now or hereafter possessed by Weld County shall he vested in a Board of County Commissioners and in the. Fleetive Officers provided for by this Charter . • -3- • Executive and adrn : nistrative powers , here- by vested in the I• Prd may , to the extent provided in this (Mittel- , he exercised by the departments herein established as agents of the Board . The legislative powers of the County shall be exercised only by the Board. " Section 2 - 2 ; Weld County Home Rule Charter . " . . . the powers and duties of the Board shall include duties and powers to : . . . Perform or exercise , or provide for the performance or exercise of , any or all permissive functions , services , facilities and powers that may now or in the future be authorized by 1nh and not specifically mentioned or assigned by this Charter . The Board shall perform or assign any mandatory duty , responsibility or function required of the county by the laws or Constitution of the state , which may have been omitted in this Charter ." Section 3- 8 (4) (T) of the Weld County Home Rule • Charter . • Section 4 - 4 (A) (4) of the • Weld County Hoare Rule Charter sets forth the duties and functions of the lticld Comity Planning Commission as follows : " ( 4) the Planning Commission : (a) shall act and decide on all petitions and applications submitted to it , pursuant to law and regulation . (h) shall perform such functions and duties as shall be provided by law and as shall be directed by the Board . (c) all decisions of the Planning Commission shall he subject to review by the Board in accordance withState law and- t rules and rcaulati_ons established Tn' the Board? 'ernpha s i s adddj— Under the authority of the Charter and Section 30 - 28 - 113 CRS 1973 (1977 Repl . Vol . ) , the Board has promulgated the Weld County Zoning Resolution . Section 3 . 3 . N. ('I ) of the Zoning Resolution provides as follows : • "The following uses (within the A- Agrictil tural Zone) are permitted upon the granting of a Special Use Permit by the Board of County Com - missioners : m. Sanitary Landfill (Solid W,rstes Dis - posal Sites) subject to the additional requirements of Section 6 . 1 (8) of this Resolution . n . Sewage systems (pumping stations , sludge drying sites ) subject to the additional requirements of Section 6 . 1 (9) of this Resolution . (emphasis added) -4 - II . THE CITY OF Nfl I IIGLENN HAS NOT OBTAINED A SIT Al.I USE PERMIT FROM THE WELD (,UIJNTY BOARD OF • COUNTY COMMISSIONERS AS REQUIRED BY STATE LAW . Weld County possesses those powers enumerated in State statutes for the regulation of zoning within the unincorporated portions of the County . Sections 30 - 28 - 101 et seq . , CRS 1973 (1977 Rep' . Vol ) . Following the adoption of a Master Plan by the Planning Commission , Section 311 - 28 - 109 , the Board of County Commissioners may adopt , following considera - tion by the Planning Commission , a Zoning plan . This plan includes maps showing the various zones and a resolution setting forth restrictions on the location , height , bulk and size of buildings and other structures , the percentage of lot which may he occupied , the size of yards , courts , and other open spaces , the uses of buildings and structures , and the uses of land . Sections 30 - 28 - 109 - 111 , CRS 1973 . Pursuant to the above cited procedures , the Weld County Zoning Resolution with ' accompanying maps was enacted in 1961 and has been amended frequently since that time . The parcel on which Northglenn proposes to build its sewage treatment facility is currently zoned A-Agricultural and , as cited, supra , a Special Use Permit is required for the construction of• a "sewage system" in that. district . Defendant contends that three cases interpreting Section 30- 28-110 (1) , City and County of Denve4 v . Board of Commissioners of Arapahoe County , 113 Colo . 150 , 156 P. 2d 101 (1945) ; Reber v . South Lakewood Sanitation District , 147 Colo . 70 , 362 P. 2d 877 (1961 ) ; Blue River Defense Committee v . Town of Silverthorne , 33 Colo . App . 10 , 516 P . 2d 452 (1973) , compel this Court to find that Northglenn need not comply with the Weld County Zoning restrictions . However , there are important distinctions between those cases and the case at bar and , in fact , the holding in Blue River is contrary - 5 - to the proposition it is citid for . The appeal in Blue River was from a summary judgment of dismissal of Plaintiff ' s claims that the Defendants failed to follow •Section 106 - 2 -9 , CRS 1963 (currently Section 30 - 23 - 110 , CRS 1973) , and violated Summit County' s Master Plan. The clear holding of the Court of Appeals , 516 P. 2d at 454 , was that the Trial Court 's judgment. of dismissal as to both counts was reversed . Therefore, by implication., the Court of Appeals Held that the towns must comply with the County Master Plan to obtain approval of the waste treatment facility . - There is an important factual distinction between • Denver v. Arapahoe County , and the case at bar . In that case , Denver was seeking to condemn land for an airport to he located in Arapahoe County and the County sought to enjoin Denver from proceeding with its condemnation pro- ceedings on the grounds that Denver had failed to make application to the Planning Commission . The land chosen by Denver was , under the Arapahoe County Master Plan , a proper use- in the development of the land and no action by the Board of County Commissioners or the Planning Commission was required to authorize that use of right : In this instance , a Special Ilse Permit is required pursuant to the Weld County Zoning Resolution in order to locate the Northglenn facility within an Agricultural Zone and in fact Northglenn chose to follow the procedures for obtaining a permit as set forth in the Zoning Resolution . Further authorizations from the Board must also he obtained prior to construction of the facility . (See discussion at Page 9 infra . ) The procedures set forth in Section 30 - 28 - 110 ( 1 ) assume that the sponsoring agency will , in good faith , consider the recommendations of the host governmental agency . The Court in Blue River , 516 P . 2d at 454 , stated it as follows - -6 - "liven though the o'i' ide entity may affirmatively overt le the county ' s decision, the residents of the county • are entitled to an opportunity to ' present their objections and views and to have these considered as part of the planning commission ' s approval or dis- approval and to • require that if construc- tion is to proceed , the constructing entity must determine to proceed in the face of the county ' s objection . We are not prepared to say , ipso facto , that the towns ' decision on the matter would be unaffected by the action of the Summit County Planning Commission . " In both Reber and Blue River all parties , as well as the site location in question , were found within the boundaries of one county . The case at bar involves an Adams County Municipality , Weld County Planning Commission and Board of County Commissioners as well as citizens of both counties . The legislative intent of providing meaningful input into the authorization process is subverted when a municipality miles away in another county is allowed to locate a sewage treatment facility one -half mile inside the Weld County line . Whereas the sponsoring agencies in Reber and Blue River • must deal with the counties on a day to day basis and with the political and social ramifications of locating a sewage treatment facility within their own counties , Northglenn does not . The City Council cannot be expected to make a fair decision regarding the benefits and detriments to the public of such a project when it sees only the benefits . The detriments fall upon the residents \of the area near the facility and the citizens of •Weld County . III . THE ZONING RESOLUTION OF WELD COUNTY , A. HOME RULE CHARTER COUNTY , MAY NOT BE OVERRIDCN BY THE CITY OF NORTHGLGNN. By its adoption of a Home Rule Charter, effective January 1 , 197u , Weld County has assumed a unique position under the Colorado Constitution in relation to other counties in Colorado . It has been contended that the counties possess only the power expressly delegated to them by the legis - lature of the State of Colorado . Weld County , by the enact- - 7 - • ment of a Home Rule Charter , has vested constitutional powers granted by Article XIV , Section 16 in itself . These vested rights cannot be taken away or impaired by action of the State Legislature . In the case of St . Louis County v. Cityof , Manchester , 360 .S .W. 2d 638 (Mo . , 1962) , the Missouri Supreme Court held that a city , under the general statutory authority to condemn • county lands for sewage disposal , could not override the constitutionally derived planning and zoning powers vested in a charter county . The Court stated , at 641 , that - "Contrary to the city ' s contention , the grant of municipal powers to charter counties under Section 18 of Article VI (of the Missouri Constitution) is meaning- ful and vests rights which cannot he taken away or impaired by the General Assemble , one of which is to exercise legislative power pertaining to planning ❑nd zoning on the part of the county outside of incorporated cities . " (citations -omitted) Similarly , Courts in Colorado have found that planning and zoning is a matter of purely local concern , and therefore , that in the event of a conflict between a State planning and zoning statute and a local ordinance dealing with the same subject , the local ordinance will prevail . Roosevelt v. City of Englewood , 176 Colo . 576 , .492 P. 2d 65 ( 1971 ) ; Service Oil Co . v. Rhodus , 179 Colo . 335 , 500 P . 2d 807 ( 1972 ) . Thus , in the event of a conflict between the provisions of the Weld County Zoning Resolution which require a Special Use Permit for the construction of a sewage treatment • facility , and a State statute purporting to grant the authority to overrule the denial of such a permit , the local zoning resolution must prevail when the basis of authority of the local zoning resolution is constitutional . The Board of County Commissioners of Weld County exercised that authority by its. action of February 21 , 1979 which disapproved of the application by the City of Northglenn for a Special Use Permit for the Sewage Treatment Facility . • - 8- IV. A PORTION of ! HE AUTHORIZATION AND FINANCIEG TOR DEFENDANT CITY OF NORTIIGLENN ' S SEWAGE TREAT- MENT FACILITY IS WITIITN THE JURISDICTION OF THE BOARD OF COUNTY COMMTSSTONERS OF WELD COUNTY AND THEREFORE CANNOT BE OVERRULED BY ACTION OF THE DEFENDANT. Section 30 - 28- 110 (1) (c) , CRS 1973 , provides that the action of a county in disapproving of the construction or authorization of certain public facilities may be overruled by another public body only if the authorization or financing of the public facility does not fall within the province of the Board of County Commissioners or other county officials or :boards . That section reads as follows - " (c) If the public way , ground , space , • building , structure , or utility is one the authorization or financing of which does not , raider the law governing the same , fall within the province of the board of county commissioners or other county officials or board , the submis - sion to the commission shall he by the body or official having such jurisdic - tion , and the commission ' s disapproval may he overruled by said body by a vote of not less than a majority of its entire membership or by said official. " Plaintiff does not contend that the Board of County Com- missioners of Weld County will incur liability to finance the facility nor that Weld County is attempting to initiate the construction of such a project. What is alleged in the Ninth Claim for Relief , however , is that without certain authorizations by the Board of County ( >mmissioners of Weld ' County , pursuant to State and Federal law , other than Section 30- 28 -110 , CRS 1973 , the Northglenn facility cannot be built . Furthermore , it is alleged that certain Federal monies which Northglenn has applied for would , if authorized , he granted to Weld County to be passed through to Northglenn for the construction of the facility . Section 208 of the Clean Water Act ( formerly known as the Federal Water Pollution Control Act or FWl'CA) , 33 USC Section 1288 , establishes a framework for waste treatment -9 - Gw IJ , • management planning and imp ] • entation of such planning for • areas which have been identified as having substantial water quality control problems . The statutory goal of this process is the achievement , within the plan area , of water quality goals mandated by the Clean Water Act, see , e . g . , 40 CFR Section 131 . 10 ; see , also , 33 U. S . C . Section 1251 (a) and Section 1281 . Once an intial areawide waste treatment management plan is certified , much of the burden of continued planning and implementation is placed upon waste treatment management agencies for the area . The management agency for pollutants discharged in the non-urban areas of Weld County is Weld County acting by and through its Board of County Commissioners . The Larimer-Weld Regional Council of Governments Area -Wide Water Quality Management Plan (l.arimer-Weld Management Plan) , developed pursuant to Section 208 (b) of the Clean Water Act , desig- nates Weld County as the management agency for wastewater treatment or discharge within the non-urban areas of Weld County including the proposed site for the Northglenn Sewage Treatment Facility . The Larimer -Weld Management Plan , which does not list the City of Northglenn as a management agency , has been approved conditionally by the Environmental Pro- tection Agency ; such conditional approval has been deemed by the EPA to be equivalent to full certification under Section 1 208 (d) unless otherwise conditioned . 44 P. R . 30035 , Section 35 . 1523- 4 (a) (May 23 , 1979) . Defendant contends that Northglenn , rather than Weld County , should be the management agency responsible for overseeing the discharge of Northglcnn ' s wastes within Weld County . Under this _interpretation of Section 208 , one of the designated management agencies for The Larimer-Weld area would lose its ability to control the disposal of those wastes within its jurisdiction , thus subverting the sta- tutory goal of the Clean Water Act . Pollution problems - 10 - arise in the area where vast arc treated and disposed and Weld County cannot be stripped of the authority to deal with those problems . Defendant further argues that a management agency must have existing authority under State law to finance , construct and operate the particular facility for which a grant is to he made . This reads much more into the Clean Water Act than is actually there . Section 208 (c) does require a management agency to have certain powers , powers - which Weld County does possess for land within its management agency jurisdiction , but it need apply those powers to finance or construct a facility only if the appropriate management plan ; under Section 208 (b) so requires . 33 USC Section 1288 (c) ( 2) (C) and (D) . Weld County admittedly does not have powers to authorize and finance a facility located within the City of Northglenn without appropriate approval from that City , but neither does Northglenn possess the necessary land use powers to operate as a management agency within Weld County . (see e . g. , 33 USC Section 1288 (b) (2) . ) Weld County ; as management agency , has the power to approve or disapprove of the use of Federal funds for the financing of the Northglenn facility . As has been alleged , the Larimer-Weld Management Plan provides that Federal grants will he available for the construction of wastewater treat - ment facilities located or discharging ‘kithin the jurisdic- tion of a management agency only if said management agency • reviews and approves said grant of funds . The Clean Water Act , at 33 USC Section 1288 (d) , provides that construction grants , such as the one Northglenn has applied for , may be awarded only to designated management agencies . (d) After a Waste treatment agency having the authority required by sub- section (c) has been designated under such sub -section for any area and a plan for such area has keen approved under sub-section (h) of this section , the Administrator (of CPA) shall not make any grant for construction of a pub- - 11 - licly owned treatment works under Section 201 (v ` II ) within such area except to suL. li designated lgencj and for works in conformity with such plan. (emphasis supplied) Therefore , without the Board of County Commissioner' s approval , federal funds cannot be made available for the Northglenn facility. Under the Clean Water Act and the Larimer-Weld Manage- ment Plan , Northglenn may not obtain Federal funds to finance the sewage treatment facility without the approval of Weld County as the management agency . Furthermore , as discussed , infra , Northglenn must obtain a certification for a solid waste disposal site and facility from the Board of County Commissioners , pursuant to Section 30- 20- 102 , CRS 1973 . In addition , the Colorado Water Quality Control Act at Section 25 - 8- 503 , CRS 1973 , and regulations promulgated pursuant thereto, S CCR 1002 - 2 Section 6 . I . SA provide that no discharge of pollutants into any waters of the State may he permitted unless there is a finding that such a discharge will he in conformity with the local land use plans or unless all requirements and conditions of the applicable Federal and State statutes and regulations have been met or wi11 be met according to a schedule of compliance . In effect , authorization must he obtained from Weld County acting through its Board of County Commissioners , before the Northglenn facility may he built and Federal money !granted for the financing of the facility . As such , the provisions of Section 30 - 28-110 (c) do not permit the City of Northglenn to overrule the disapproval of Weld . County . Defendant ' s uses as authority Blue River Defense Committee vs . Town of Silverthorne , 33 Colo . App . 10 , 516 P. 2d 452 (1973) ; and Reber vs . South Lakewood Sanitation District , 147 Colo . 70 , 362 P. 2d 877 ( 1961 ) for the proposi - tion that the powers that Weld County possesses to authorize or finance the Northglenn facility pursuant to the above cited State and federal provisions are merely the authority • • • - 12 - • to "license" , and thus have ne bearing on the right to overrule the County ' s decision . The issue of whether the requirements of other State or Federal • laws constituted "authorization" or "financing" was not even considered in those cases . So long as Weld County possesses the ability , through a statute which governs the construction of a sewage treatment facility , to authorize or finance that facility , • it cannot be overruled. • V. TIIE CITY OF NORTIICLIiNN HAS FAILED TO OBTAIN A CERTIFICATE OF DESIGNA- TION FOR A SOLID WASI'I;S DISPOSAL SITE AND FACILITY FROM '1111? NM) • COUNTY BOARD OF COUNTY COMMISSIONERS . The Amended Complaint , at paragraphs 33 and 34 , alleges that sludge from the sewage treatment facility which is the subject of this litigation will he deposited , collected , and stored within said facility and that final treatment and processing of the sludge will take place within the facility . Further , the Complaint alleges that the City of Northglenn intends to utilize or dispose of the treated sludge by application to the land on said facility and in the vicinity of said facility . These allegations are primarily issues of fact and cannot be resolved by a Motion to Dismiss given the applicable law, the Solid Wastes Disposal Sites and Facilities Act (Solid Waste Act) , Section 30 - 20- 101 , CRS 1973 ( 1977 Rep . Vol . ) . The relevant portions of the Solid‘. Waste Act are as follows : " (I ) Fxcept as provided in subsection ( 3) of this Section , it is unlawful for any person to operate a solid wastes disposal site and facility in the unincorporated por- tion of any county without having obtained therefor a certificate of designation from the hoard of county commissioners of the county in which such site and facility is • located . (3) The final use for beneficial purposes , including fertilizer , soil conditioner , fuel , and livestock feed , of sludge which • - 13 - • has been processed uul certified or desig - nated as meeting ill applicable regulations • of the department (of health) and the department of agriculture shall not require a certificate of designation for such final use . Section 30 - 20 - 102 , CRS 1973 . (6) ' solid wastes ' means . . . sludge of sewage disposal plants '(7) ' solid wastes disposal ' means the col - • lection , storage , treatment , utilization , processing , or final disposal of solid wastes . ( 8) ' solid wastes disposal site and facility ' means the location and facility in which the deposit and film]. treatment of solid wastes occur . " Section 30- 20- 101 , CRS 1973 . Defendant City of Northglenn contends that a sewage treat - ment facility cannot be a solid wastes disposal site and facility hut the plain language of the statute indicates otherwise . The Solid Wastes Act specifically defines solid waste to include sludge of sewage disposal plants , CRS 1973 , Section 30 - 20- 101 (b) , and a solid wastes disposal site • and facility as the location and facility at which the deposit and final treatment of solid wastes occur . CRS 1973 , Section 30- 20- 101 (a) . Defendant admits that sludge will he "generated" by the sewage treatment process but somehow contends that it will not he deposited, collected , treated or stored within the facility by analogizing it to an office building which generates wastepaper . The analogy holds only if the waste paper is collected , stored and treated within the building . There is , admittedly a question of fact� as to whether or not the precise methods proposed by Northglenn for handling the generated sludge constitute deposit and final treatment of the sludge , hut that issue cannot he resolved without . an evidentiary proceeding . Defendant asserts that if a Certificate of Designation is required , it is required only for the actual operation of the facility , and therefore there is no need to make applica - tion for such a Certificate until the last screw is tightened and the facility is ready to operate . Apart from the practical • - 14- folly of spending the money - essary for a -project of this type without first obtaining the proper certification , the language of the statute makes it clear that the statute comes into play well before actual physical construction has been completed . Section 30-20.- 104 , CRS 1973 ( 1977 Rep1 . Vol . ) sets the framework under which the Board of County Commissioners is to consider an application for a Certificate of Designation . The factors to be considered in advance of construction of the facility by the Board of County Commis - sioners include - • " (a) The effect that the solid wastes disposal site and facility will have on the surrounding property , taking into consideration the types of processing to he used , surrounding property uses and values , and wind and climatic conditions ; (b) The -convenience and accessahility of the solid wastes disposal site and facility to potential users ; (c) The ability of the applicant to comply with the health standards and operating procedures provided for in this part 1 and such rules and regulations as may he prescribed by the Department ; (d) Recommendations by local health depart - ments ." Section 30 - 20- 104 ( 1) . Furthermore , Section 30- 20-104 (3) provides that - " ( 3) Prior to the issuance of a Certifi - cate of Designation , the Board of County Commissioners shall require that the report which shall he submitted by the applicant under 30- 20- 103, he reviewed and a recommendation as to approval or disapproval made by the Department and shall he satisfied that the proposed solid wastes disposal site and facility conforms to the comprehensive county land use plan , if any . The application , report of the department , a comprehensive land use plan , and other pertinent informa - tion shall he presented to the Board of County Commissioners at n public hearing • to he held after notice . . . . " Clearly the language of the statute is prospective in nature , and speaks of the effects the facility will have . A planning process such as this will he rendered impotent if the Board of County- Commissioners is restricted to making a decision -1S - • on the Certficcate of Designation only after the facility has been built . The facility , to a certain extent , will impact the surrounding property whether or not it is in operation. Furthermore , changes in the construction and operation plans for the facility can be identified during this process which could lessen the effect the facility will have on surrounding property ; once the facility is built , the changes which could be incorporated into the facility are much more limited . Assuming , arguendo , that injunctive relief is not appropriate at this time because harm to the Plaintiffs has not yet occurred or is not imminent , this issue is very appropriate for declaratory relic ( pursuant to Section 13- 51 - 10 , et seq . CRS 1973 and C . It . C . I' . Rule 57 . Both the rule and the statute are declared to he remedial with the purpose of affording "relief from uncertainty and insecurity with respect to rights , status , and other legal relations , and arc to be liberally construed . Section 13- 51 - 102 , CRS 1973 , C . B . C . P . Rule 57 (k) ; Colorado State Board of Optometric Examiners V . Dixon , 165 Colo . 188 , 193 , P . 2d 287 (1968) . There is clearly a dispute between the Plaintiffs and the Defendant as to whether or not a Certificate of Designation is required for the Northglenn sewage treatment facility . A Court would not require Northglenn , in this situation , to wait until after the facility is constructed before the Court would make a determination on whether or not a Certi - ficate of Designation is necessary for the facility . The Court in State Board v . Dixon at page 493 rejected the proposition that - 11.1 "The person adversely affected by a statute and seeking relief from uncer- tainty and insecurity with respect to his rights by reason of a staute . . .must take the risk of toss of property . . . in order to secure adjudication of his rights . the Plaintiff as a person whose rights are favorably affected by a statute may also obtain declaratory relief . Silverstein v. Sisters of Charity of Leavenworth , 38 Colo . App . 286 , 559 • ' P. 2d 716 , 720 (1976) . It would benefit both the Plaintiffs • - 16- and the Defendant to have a J termination of the issues at this time before Defendant ha invested a substantial sum of money and before injury has occurred to the Plaintiffs . That is the very purpose of a declaratory judgment . VI . THE. OPERATION OF lift NORTH- GLENN SEWAGE TREATMENT FACILITY IS A PROPRIETARY RATTIER THAN GOVERNMENTAL FUNCTION OF THE CITY OF NORTIIGLENN, 'I'llEREFORE , THE CITY OP NORTIIGI.ENN MAST O13- TATN A SPECIAL USE PERMIT FOR THE NOR] iiCi ENN SEWAGE TREATMENT FACILITY In performing its duties and functions , a municipality operates in two capacities - one political and governmental and the other private and corporate . When a municipality operates a public utility , Board of Commissioners v. City of Ft . Collins , 6f3 Colo . 364 , 189 P . 929 ( 1920) , including sewer facilities , City of Northglenn v . City of Thornton , Colo . 569 P. 2d 319 ( 1977 ) it operates in a proprietary capacity . When a city acts in its proprietary capacity , it is governed by the same rules that apply to a private corpora- tion. City of Northglenn v . City of Thornton , supra ; Board of Commissioners v . City of Ft . Collins , supra ; City of - Shclliyville v . State , 220 Tenn . 197 , 115 S. W . 2d 159 ( 1967) ; Whitehead v . H. C. Development Coloration , 204 Va . 144 , 129 S . E . 2d 691 (1963) . In fact no distinct &on is to he drawn between such business when engaged in by a city and when engaged in by a private corporation , City:of Frankfort v. United Ass ' n of Journeymen , 53 III . App . 3d 207 , 2112 N . E. 2d 649 (1964) . " . . . When a municipal corporation engages in business activities pursuant to its proprietary function , it is subject to the same rules and regulations imposed upon a private entity engaged in a like business . " Shaffer v . Allt , 25 Ariz . App . 565 , 545 P. 2d 76 (1976) . See also - 17- r^ / Barnard v . Canner , 146 Colo IrlY , 361 I'. 2d 778 (1961 ) . In the case of City and County of Denver v. Puhlix Cab Co . , 135 Colo . 32 , 308 P. 2d 1016 ( 1957) the Colorado Supreme Court states : "A municipality cannot use its police or governmental powers to operate its proprietary business . As to the latter , a city stands on no higher plane than any individual citizen . " Zoning is an exercise of the police power , Rademan vs . City and County of Denver , 186 Colo . 250 , 526 P. 2d 1325 (1974) , and North,glenn cannot , in its proprietary capacity , he held to have superceded Weld County ' s zoning powers . City of Lakewood v . Haase , Colo . 8 Colo . Lawyer 1527 (June 11 , 1979) ; see Jefferson County v . City of Birmingham, 256 Ala. 436 , 55 So . 2d 196 ( 1951 ) . VII . IN THE ALTERNATIVE , iIIE DECISION ICIII;T11ER OR NOT TO LOCATE TIlE NORTIIGLENN SEWAGE TREATMENT FACILITY IN WELD COUNTY SIIOIILD BE MADE ON THE BASIS OP A "BALANCING OE PUB- LIC INTERESTS" TEST . The recent trend in Court decisions resolving disputes between a governmental agency seeking to locate within another agency ' s jursidiction has been a balancing of public interests test . See , e . g . Town of Oronco v . City of Rochester , 293 Minn . 435 , 197 N. W. 2d 426 (1972') ; Or_rnge County v. City of Apopka , 299 So . 2d 652 (Fla . App . 1974 ) ; Hillsborough Association for Retarded Citizens , Inc_ v . City of Temple Terrace , 332 So . 2d 610 (Fla . 1976) ; Lincoln County v . Johnson , 257 N . W . 2d 453 (S . D. 1977) ; Rutgers v . Kansas Iorestrv, Fish and Game Commission , 2 Kan . App . 2d 102 , 576 I'. 2d 230 ( 1978) . The balancing of interests test was perhaps best expressed in the case of Orange County v . City of Apopka . The Court first noted that - " ft strikes us as anomalous to allow one govermental unit charged with a specific responsibility , such as supplying housing , airports , or sewerage facilities , to enter another -18 - governmental unit and unilaterally decide to locate one of its govern- mental facilities anywhere it may • choose . " 299 So. 2d at 654 . The Court then set forth its test for resolving zoning conflicts between one governmental unit proposing to use property in the jurisdiction of another governmental unit contrary to that unit ' s existing zoning regulations as follows - " (T) he court can consider , . . . , the 'type of function involved , the applicant ' s legislative grant of authority , the pub- lic need therefor , the existing land use scheme , alternative locations for the facility in less restricted zoning areas , alternative methods for providing the needed improvements , and the detriment to the adjoining landowners . If after weighing all pertinent factors , the court finds the host government is acting unreasonably ( in denying the application) the zoning ordinance should be held inapplicable to the proposed improvement . . . " 299 So . 2d at 655 ; City of Temple Terrace v. Hillsborough Association for Retarded Citizens , Inc_, 322 So . 2d 571 , 577 .(Fla. App. 1975) , Aff' d 332 So . 2d 610 (Fla . 1976) . Under this test , the burden is placed upon the City of Northglenn to' show that the project , balancing the benefit to the City - of Northglenn and a detriment to Weld County and its resi - dents , is beneficial to the public interest . CONCLUSION The allegations of fact contained in Plaintiff' s amended complaint are sufficient , taken in the light most favorable to the Plaintiff, to support the claims for relief and cannot be dismissed pursuant to Rule I2 (h) (5 ) C . R . C. 1'. Bell v . Arnold , 175 Colo . 277 , 427 P . 2d 545 ( 1971 ) . The substantive law clearly supports the contention that Defendant may not con- struct or operate the subject sewage treatment facility -19 - without the proper form of ' mission from the Board of County Commissioners of Weld County , Colorado. • WELT) COUNTY ATTORNEY By : 1_SJ/ LEE D. MORR"ISON 118067 Assistant County Attorney 915 loth Street Greeley , Colorado 80631 (303) 356- 4000 ext. 369 - 20- is `e CERTIFICATE OF MAILING The undersigned hereby certifies that a true and correct copy of foregoing BRIEF IN OPPOSITION TO MOTION TO DISMISS AMENDED COMPLAINT was placed in the U . S . mail , postage prepaid to : Francis Culkin Attorney at Law 720 South Colorado Blvd . Denver , Colorado 80222 Joseph Cope Musick , Williamson , Schwartz , Leavenworth F, Cope , P . C . Attorney at Law 75 Manhattan Drive - Suite 1 P . O . Box 4579 Boulder, Colorado 80630 DATED THIS 26th day of October , 1979 . 1117" Sandy Shiba a • • • - 21 - Hello