HomeMy WebLinkAbout790495.tiff IN THE DISTRICT COURT
IN AND FOR THE COUNTY OF WELD
STATE OF COLORADO
79-CV-431
THE BOARD OF COUNTY COMMISSIONERS ) j ! AUG 0 7 1979
OF WELD COUNTY, COLORADO; THE )
TOWN OF FREDERICK, COLORADO; A'ELD COUNTY
THE CITY OF FT. LUPTON, COLORADO; ) ATTORNEY'S OFFICE
THE WEISNER SUBDIVISION PRESERVA- )
TION ASSOCIATION, )
Plaintiffs , ) BRIEF IN SUPPORT OF
MOTION TO DISMISS
vs. ) AMENDED COMPLAINT
THE CITY OF NORTHGLENN, COLORADO, )
Defendant. )
COMES NOW the defendant City of Northglenn, Colorado , by and
through its special counsel, Musick, Williamson, Schwartz ,
Leavenworth & Cope, P.C. , and respectfully submits the following
brief in support of its motion to dismiss the plaintiffs ' amended
complaint.
INTRODUCTION
The original complaint herein was filed on June 27 , 1979. In
response to that complaint, the defendant City of Northglenn filed
a motion to dismiss and brief in support thereof on July 9 , 1979 .
Without responding to the motion to dismiss , the plaintiffs filed
an amended complaint on July 23, 1979 . The amended complaint is
virtually identical to the original complaint in all respects save
two: the fifth and ninth claims for relief in the amended complaint,
set forth at pages 7 and 14 respectively, present allegations which
were not raised in the original complaint.
Northglenn submits that its previously filed motion to dismiss
is dispositive of all of the issues raised in the amended complaint
with the exception of those presented in the fifth and ninth claims
for relief. The purpose of this motion and brief is to respond
directly to the new allegations raised in those sections of the
amended complaint.
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Northglenn respectfully requests , therefore, that its previously
filed motion to dismiss and brief be incorporated by reference into
this new motion. Together they establish that the plaintiffs '
amended complaint is without merit, and should be dismissed for its
failure to state a claim upon which relief can be granted .
SUMMARY
Plaintiffs ' fifth and ninth claims for relief, which are the
only new claims raised in plaintiffs ' amended complaint, fail to state
any claim upon which this Court can enjoin construction of the
Northglenn sewage treatment facility. There is no substantive law
that entitles the plaintiffs to this relief upon the facts they have
alleged.
First, plaintiffs have alleged that the Northglenn sewage
treatment facility will provide for the disposal of solid wastes in
Weld County. They ask that construction of the project be enjoined
until Northglenn obtains a "certificate of designation"" under the
Solid Wastes Disposal Act to engage in that activity. Assuming
for purposes of this motion only that this allegation is correct,
plaintiffs are not entitled to an injunction to halt construction
of the project on this ground because the Solid Wastes Disposal Act
does not require that this certificate be obtained prior to
construction of a facility that will dispose of solid wastes . The
certificate must be 'obtained prior to operation of the facility. As
a result, failure to obtain the certificate prior to construction
cannot justify the issuance of an injunction to halt construction.
Second, plaintiffs have alleged that Northglenn must obtain a
special use permit from Weld County prior to construction of the
Northglenn facility. They argue that Northglenn may not overrule
a negative decision by the Weld County Planning Commission under
§30-28-110 (1) (c) of the County Planning Act because Weld County is
the entity, to some unspecified degree, that has "authorized and
financed" the Northglenn treatment facility. Plaintiffs , however,
have not alleged that any Weld County money or any Weld County
indebtedness has been pledged or given to construct the Northglenn
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facility. The sole allegations of fact upon which this claim for
relief rests are : (1) Weld County is a designated management
agency within the §208 planning area of the Larimer/Weld Regional
Council of Governments ("LWRCOG" ) ; (2) the LWRCOG §208 plan has been
approved by the U. S . Environmental Protection Agency : and (3 ) the
City of Northglenn has applied for $7 million in federal grant money
to assist in financing the construction of the Northglenn facility.
As discussed in detail in Northglenn ' s motion to dismiss plaintiffs '
first complaint, the Weld County Planning Commission voted to approve
the Northglenn project. Consequently, it was not necessary for
Northglenn to overrule that decision. Notwithstandng the irrelevance
of this argument by plaintiffs, there is no substantive law that would
permit the court to conclude from these allegations of fact that Weld
County has "authorized and financed" the Northglenn treatment facility.
On the contrary, the Colorado Constitution and statutes thereunder
reveal that Weld County has no power under Colorado law to "authorize
and finance" the construction of a sewage treatment fhcility to serve
the City of Northglenn, and, thus, could not have done so as plaintiffs
have alleged. This authority, furthermore , is not provided under
federal law.
As a result of plaintiffs ' failure to allege facts upon which
some substantive law would entitle them to the relief they have
requested, their amended complaint must be dismissed under C.R.C.P.
12 (b) (5) for failure to state a claim upon which relief can be
granted.
ARGUMENT
I . THE CITY OF NORTHGLENN IS NOT REQUIRED TO OBTAIN
A CERTIFICATE OF DESIGNATION UNDER THE SOLID
WASTES DISPOSAL ACT, C. R.S . 1973, §30-20-102 ,
PRIOR TO THE CONSTRUCTION OF ITS MUNICIPAL SEWAGE
TREATMENT FACILITY IN THE UNINCORPORATED TERRITORY
OF WELD COUNTY.
Paragraph 37 of the fifth claim for relief in the plaintiffs '
amended complaint (page 8) alleges that the City of Northglenn
has not obtained a certificate of designation from the Board of
County Commissioners of Weld County for the operation of a solid
wastes disposal site and facility in the unincorporated territory
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of Weld County. The plaintiffs, relying on the statute governing
the operation of solid wastes disposal sites and facilities , C.R. S .
1973 , §§30-20-101, et. seq. , seek to enjoin the construction of
the Northglenn sewage treatment plant. Their reliance is misplaced.
In the first place, the Northglenn sewage disposal plant is not
a "solid wastes disposal site and facility, " as that term is defined
in the statute. This case concerns the construction of a sewage
treatment plant, not the operation of a dump or landfill .
The Solid Wastes Disposal Act defines the term "solid wastes"
as follows :
[G] arbage, refuse, sludge of sewage disposal
plants , and other discarded solid materials ,
including solid waste materials resulting from
industrial, commercial, and community activities
C.R.S . 1973, §30-20-101 (b) . (Emphasis added. )
It further defines "solid wastes disposal site and facility"
as follows :
[T] he location and facility at which the deposit
and final treatment of solid wastes occur.
C.R. S. 1973 , §30-20-101 (8) . (Emphasis added. )
The specific inclusion of the term "sludge of sewage disposal
plants" within the definition of "solid wastes" shows that only one
component of the sewage treatment process was meant to be within the
purview of this statute: sludge. The language of the statute is
completely silent on the construction and operation of a sewage
treatment plant; it deals, instead, with the deposit and final
treatment of the sludge.
The mere fact that sludge may be generated as a by-product of
the sewage treatment process does not turn the Northglenn facility
into a solid wastes disposal site and facility, any more than the
generation of wastepaper turns an office building into one. Separate,
comprehensive statutes govern sewage treatment plants , their
construction and operation. The plaintiffs ' tortured interpretation
of this statute simply cannot turn this plant into a solid wastes
disposal site and facility.
Second, and more fundamental, the statute does not support an
injunction against the construction of the Northglenn plant upon
the facts alleged in the amended complaint. The statute prohibits
the operation of a solid wastes disposal site and facility without
the appropriate permission. C .R. S . 1973, §30-20-102 (1) , (3) , -106 .
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It does not, however, prohibit the construction of such a facility ,
or require a certificate of designation as a condition precedent to
such construction. Until such time as the plaintiffs can show that
Northglenn is proceeding with the operation of a solid wastes disposal
facility without a certificate of designation in violation of the
statute, or is imminently threatening such a violation, neither the
Solid Wastes Disposal Act nor this Court ' s injunctive powers have
been called into play.
The amended complaint, moreover, fails to show an impending
violation of the statute. It simply alleges that Northglenn "intends"
to dispose of sludge in unincorporated Weld County. Amended complaint
at paragraph 34 , page 8 . Too many essential allegations are missing
for the plaintiffs to be entitled to injunctive relief . For example :
When is this purported violation supposed to occur? Does Northglenn •
intend to deposit sludge without first obtaining the appropriate
permission? Has a certificate of designation been sought and denied?
Is the certificate unobtainable? Certainly the plaintiff Board of
County Commissioners has not already determined, before permission has
been sought, that permission would be denied. What immediate and
irreparable harm is threatened to occur if such an injunction is not
issued? The amended complaint is , of course, totally lacking in these
essential allegations.
It is fundamental that courts sit to resolve real , existing
disputes. Heron v. . City and County of Denver, 159 Colo. 314 ,
411 P . 2d 314 , 315 (1966) ; Taylor v. Tinsley, 138 Colo. 182 , 330 P . 2d
954 (1958) . Unless a case or controversy exists , ripe for judicial
review, the Court has no jurisdiction. Gabriel v. Board of Regents ,
83 Colo . 582 , 267 P. 407 , 408 (1927 ) . The subject matter of this
claim, sludge, does not presently exist. Operation of the sewage
treatment plant is not contemplated for months in the future, and
accumulation of sufficient sludge to necessitate its being "deposited"
and "treated" is even farther in the future. Clearly, the plaintiffs '
appeal to the Court ' s equitable powers is premature, at best.
The Solid Wastes Disposal' Act is simply of no help to the
plaintiffs in this case. Even if the statute applied to sewage treat-
ment plants, per se , rather than to just the disposal of sludge
obtained therefrom, there is no justiciable claim presented by the
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amended complaint. No existing or threatened violation of the
statute has been alleged, and an injunction cannot be issued against
a speculated future action. The fifth claim for relief must accordingly
be dismissed for failure to state a claim upon which relief may be
granted. C.R.C. P. 12 (b) (5) .
II . THE CITY OF NORTHGLENN -- NOT WELD COUNTY --
IS RESPONSIBLE FOR THE AUTHORIZATION AND
FINANCING OF NORTHGLENN ' S MUNICIPAL SEWAGE
TREATMENT FACILITY, AND IS ACCORDINGLY VESTED
WITH THE UNQUALIFIED AUTHORITY UNDER STATE LAW
TO PROCEED WITH THE CONSTRUCTION OF THAT FACILITY
WITHOUT A SPECIAL USE PERMIT FROM WELD COUNTY.
In its "Ninth Claim for Relief" contained in its Amended Complaint,
plaintiffs appear to be arguing that Northglenn does not have the
authority to overrule a negative determination on Northglenn ' s special
use permit request by the Weld County Planning Commission under
§30-28-110 (1) (c) of the County Planning Act, because Weld County has
"authorized or financed" the Northglenn sewage treatment facility.
Plaintiffs appear to base this argument on the provisions of the
Federal Clean Water Act, 33 U.S.C. , §§1251 et. seq. In short, plaintiffs
would argue that federal law has changed the relationship between a
municipal home rule city and an unincorporated county under the
Colorado Constitution and the applicable statutes thereunder. This
argument is utterly without merit.
As Northglenn has discussed in detail in its motion to dismiss
plaintiffs ' first complaint, the Weld County Planning Commission
voted to approve the Northglenn treatment plant . It was not even
necessary, therefore, for Northglenn to overrule that decision under
§30-28-110 (1 ) (c) . This new argument by plaintiffs , therefore, is
wholly irrelevant.
Plaintiffs ' novel assertion, however, that federal law now
prescribes the relative powers of counties and home rule cities to
authorize and finance the construction of sewage treatment facilities
in the state of Colorado warrants some further discussion ._
The power of a . home rule city to authorize and finance the
construction of a sewage treatment facility is contained in Article XX
of the Colorado Constitution. Sections 1 and 6 vest home rule
cities with:
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. . . The power, within or without its territorial
limits , to construct, condemn and purchase ,
purchase, acquire, lease, add to, maintain,
conduct and operate . public utilities or works
or ways local in use and extent, in whole or in
part, and everything required therefor . . . .
A municipal sewage treatment facility is , of course, a public utility
within the meaning of Article XX. Town of Glendale v. City and County
of Denver, 137 Colo. 188 , 322 P. 2d 1053 (1958) .
The Northglenn City Charter expressly assumes "all power possible
under the Constitution and the laws of the state of Colorado, "
including all home rule municipal powers to construct public water
and sewer utilities . Northglenn City Charter, Article I , §1 . 2 ; Article
XI, §11 . 1. Pursuant to this authority, Northglenn authorized the
financing and construction of the Northglenn sewage treatment facility
to provide service to the inhabitants within the Northglenn service
area. The facility will not provide sewage service to the inhabitants
of Weld County. It is these constitutional powers to which C .R.S .
1973, §30-28-110 (1) (c) refers when it speaks to "the authorization
or financing" of public utility projects . Reference to the leading
cases construing that statute, City and County of Denver v. Board
of Commissioners of Arapahoe County, 113 Colo. 150 , 156 P . 2d 101
(1945) ; and Reber v. South Lakewood Sanitation District, 147 Colo .
70 , 362 P . 2d 877 (1961) , leaves no doubt that the authority to construct
a public utility emanates directly from the Colorado Constitution,
and resides exclusively in the hands of the local government body
for whose benefit the constitutional powers are being invoked. In
the instant case, that body is the City of Northglenn.
Weld County cannot be the entity that "authorizes or finances"
the Northglenn project as provided in §30-28-110 (c) , if Weld County
has no authority to do so. It is quite plain that, as a matter of
law, Weld County has no authority under the Colorado Constitution,
or the statutes of this state, to unilaterally authorize or finance
the construction of a sewage treatment facility to serve the inhabitants
of the City of Northglenn -- or any other municipality. Under Art. XX
of the Colorado Constitution, Northglenn -- not Weld County -- is the
entity with the power to authorize and finance the construction of a
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sewage treatment facility to serve Northglenn. Moreover, C.R.S . 1973 ,
§30-20-402 makes it absolutely clear that Weld County cannot perform
this function on behalf of Northglenn without Northglenn ' s authorization:
(1) In addition to the powers which it may
now have, any county without an election of
the qualified electors thereof has power under
this part 4 : ***
(b) To operate and maintain water
facilities or sewerage facilities , or both,
for its own use and for the use of public
and private consumers and users within and
without the territorial boundaries of the
county, but no water service or sewerage
service, or combination of them, shall be
furnished in any other county or in any
municipality unless the approval of such
other county or municipality is obtained
as to the territory in which the service is
to be rendered; *** (Emphasis added. )
Northglenn has never designated Weld County as its agent to pro-
vide sewage services in the Northglenn service area, nor authorized •
Weld County to finance or construct the Northglenn sewage treatment
plant. There is no allegation in either of plaintiffs ' complaints that
Northglenn has done so. Weld County has not attempted to undertake
this responsibility -- it has not incurred liability under the
Northglenn municipal bond issue with respect to the project, nor
otherwise contributed one cent to the financing of the project. Nowhere
in their Complaints have plaintiffs alleged that Weld County has
provided any county funds for the Northglenn treatment facility.
Common sense, moreover , suggests that Weld County would not be
authorizing or financing a sewage treatment facility to serve the
inhabitants of Northglenn. On the contrary, common sense must make
it obvious that only Northglenn can authorize the project.
Notwithstanding the clear state of Colorado law on this point,
plaintiffs appear to argue that the Federal Clean Water Act provides
Weld County with this authority. Even assuming the federal government
has the authority to empower Weld County to authorize and finance
the construction of a treatment facility to serve the City of
Northglenn, a review of the pertinent provisions of the Clean Water
Act demonstrates that the Clean Water Act does not, even by the
widest stretch of the imagination, purport to do so.
Title II of the Clean Water Act establishes a grants program
to assist public agencies in the construction of sewage treatment
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works. §208 (g) , 33 U. S .C . 1281 . Federal funds for this program are
allotted to the states on the basis of a complicated allocation system.
§205, 33 U.S .C. 1285. The states , in turn, are provided the authority
to distribute their allotted funds to public agencies according to
state priorities , which must meet certain minimum federal requirements .
§216 , 33 U. S .C. 1296. The Clean Water Act further provides that
grant funds for the construction of a specific sewage treatment works
may only be awarded to the public agency designated as the management
agency for that treatment works under the applicable §208 areawide
management plan for the area to be served by the facility . §208 (d) ,
33 U.S .C. 1288 .
Title II of the Clean Water Act does not create power in any
agency -- federal , state, or local -- to authorize the financing and
construction of a sewage treatment works . It simply provides for
grants that may be awarded to agencies that already have this
authority, in order to assist them in the planning and construction
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of these facilities. Section 208 (c) very specifically requires , as
a precondition to the award of a grant, that the management agency
have existing authority under state law to finance, construct, and
operate the facility for which the grant is to be made. 33 U.S .C. 1288 .
Northglenn has applied for a federal grant under the Title II
construction grant program to assist it in financing the construction
of its sewage treatment facility. Whether or not Northglenn receives
this grant, it cannot possibly be said that by virtue of this application
Weld County is authorizing and financing the Northglenn treatment
facility. The grant funds are federal funds , and cannot by any stretch
of the imagination be deemed Weld County funds .
In short, the Clean Water Act does not provide any authority to
Weld County to authorize or finance the construction of the
Northglenn sewage treatment plant. It does not have this authority
under Colorado law, and it does not have this authority under federal
law. Weld County cannot be the entity authorizing and financing the
Northglenn treatment facility because it simply has no authority
to do so. Plaintiffs' claim that Weld County is financing the
construction of the Northglenn sewage treatment facility because
Northglenn has applied for federal grant money is ridiculous . Its
allegations of fact, therefore, fail to state a claim under either
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state or federal law.
Finally, the fact that any NPDES permit issued by the state for
discharges to waters of the state within the Larimer/Weld Regional
Council of Governments ("LWRCOG" ) §208 planning area must be
consistent with the LWRCOG §208 areawide plan has no bearing whatsoever
on this controversy. It is simply a statutory condition to the
issuance of a state discharge permit, and cannot support the argument
that Weld County is the agency authorizing and financing the Northglenn
sewage treatment facility. Moreover, it is the state that determines
whether the discharge is consistent with the LWRCOG §208 plan -- not
Weld County. Just because an agency has statutory authority to license
a public project authorized and financed by a municipality does not
mean that the licensing agency is the entity "authorizing or financing"
the project, as that phrase is used in §30-28-110 (c) . The courts
that have construed this section have uniformly held that the entity
that has the authority to initiate and finance the construction of
the project is the "authorizing and financing" entity, and thus has
the right to overrule a county planning commission. This right is
not lost simply because other agencies have licensing jurisdiction
over the project. See Blue River Defense Committee v. Town of
Silverthorne, 33 Colo . App. 10, 516 P. 2d 452 (1973) ; see also Reber
v. South Lakewood Sanitation District, 147 Colo. 70, 362 P. 2d 877 (1961) .
CONCLUSION
The allegations of fact contained in plaintiffs ' amended complaint
do not entitle them to the relief thay have requested. There is no
substantive principle of law that would entitle plaintiffs to an
injunction barring construction of the Northglenn sewage treatment
facility. As a result, plaintiffs ' amended complaint must be dis-
missed, pursuant to C. R.C.P. Rule 12 (b) (5) , for failure to state a
claim upon which this Court can grant the relief they have requested.
Nelson v. Nelson, 31 Colo. App. 63 , 497 P. 2d 1284 (1972) .
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Respectfully submitted,
MUSICK, WILLIAMSON, SCHWARTZ ,
LEAVEN • & COQ,. P .C .
By �►
John D. Music • , . #341
Joseph A. Cope, #7 ,33
William T. Smith, Jr. , #9190
Post Office Box 4579
Boulder, Colorado 80306
(303) 499-3990; (800) 332-2140
Special Counsel to the
City of Northglenn, Colorado
Dated this Z day of August, 1979.
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