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Home My WebLink About3.0 Claim for ReliefDISTRICT COURT, COUNTY OF GARFIELD, STATE OF COLORADO Case No. , Division COMPLAINT ASPHALT PAVING CO., a Colorado corporation, Plaintiff, vs. BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY and FLAVEN J. CERISE, EUGENE DRINKHOUSE AND LARRY VELASQUEZ AS COUNTY COM- MISSIONERS IN THEIR OFFICIAL CAPACITIES, Defendants. COMES NOW the Plaintiff, Asphalt Paving Co., by its attorney, Lance Astrella, for its complaint against Defen- dants, states and alleges as follows. FIRST CLAIM FOR RELIEF (Review Under C.R.C.P. 106)-- 1. Plaintiff, Asphalt Paving Co., is a Colorado corporation with its offices and principal place of business located at 14802 West 44th Avenue, Golden, Colorado 80403. 2. Plaintiff is the owner of the real property des- cribed in Exhibit A, attached hereto and incorporated herein by reference (the "Property"). The Property is located within Garfield County, Colorado, and it is the denial of the Application for Special Use Permit for the Property which is the subject of this action. 3. The Board of County Commissioners of Garfield County ("County Commissioners") is the governing body of that County, the individual members of which are presently, and at all times material to this action, were duly elected representatives of such Board. Said members consist of the following -named individuals, Flaven J. Cerise, Eugene Drinkhouse and Larry Velasquez. 4. On or about April 26, 1982 the Garfield County Planning Commission ("Planning Commission") met to consider an Application for Special Use Permit filed by Plaintiff (the "Application") requesting approval of an open pit sand and gravel mine and asphalt and concrete batch plants to be located on the Property. 5. At its meeting of April 26, 1982 the Planning Commission adopted a Resolution recommending approval of the Plaintiff's Application. A true and accurate copy of this Resolution is attached as Exhibit B and incorporated herein by reference. 6. On or about May 24, 1982 the Plaintiff's Appli- cation gas reviewed by the County Commissioners. However, despite that and despite the recommendation of the Planning Commission and Plaintiff's agreement to comply with all conditions imposed upon the operation, the County Commis- sioners, on May 10, 1982, denied Plaintiff's Application without legitimate reason, competent evidence or factual justification. A true and accurate copy of the County Commissioners' Resolution is attached as Exhibit C and incorporated herein by reference. 7. The County Commissioners exceeded their juris- diction, acted arbitrarily, capriciously and abused their discretion in denying such Application by, among other things, basing their decision on matters of speculation and on inconsistent application of the Garfield County Compre- hensive Plan. 8. The County Commissioners' action does not promote the health, safety, convenience and welfare of the citizens of Garfield County. 9. Defendant County Commissioners is an inferior tribunal which, with respect to the subject matter of this Complaint, exercised a quasi-judicial function. 10. Plaintiff, pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure, alleges that it has no plain, speedy and adequate remedy at law as to the action of the County Commissioners and that it is adversely affected by such action as described above. WHEREFORE, the Plaintiff requests the following relief. (a) That the Court enter its Order voiding and de- claring invalid the denial of Plaintiff's Application as exceeding Defendant County Commissioners' jurisdiction and constituting arbitrary and capricious action and an abuse of discretion; (b) That the Court enter its Order directing the County Commissioners to approve the Plaintiff's Application and/or authorizing the Plaintiff's mining operation; (c) That the Court order Defendant County Commissioners or any of its agents having custody of the records of the proceedings described in this Complaint to certify to this Court at a specified time and place the tapes, minutes and a -2- transcript of the record of the proceedings and all docu- ments and exhibits held by such Defendant pertaining to its record of proceedings; (d) That the Court issue a citation to Defendant County Commissioners to show cause why the relief requested herein should not be allowed; and (e) That the Plaintiff be awarded its costs, expert witness and attorneys' fees and such other and further relief as the Court may deem proper. SECOND CLAIM FOR RELIEF (Due Process) 11. Plaintiff incorporates the allegations contained in paragraphs 1 through 10 of this Complaint. 12. The action of the County Commissioners was not based upon any reasonable standards. 13. As such, the action of the County Commissioners in denying the Plaintiff's Application violated the procedural and substantive due process rights of the Plaintiff, has damaged Plaintiff and has deprived Plaintiff of valuable property rights without due process of law contrary to the provisions of the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution. WHEREFORE, the Plaintiff requests the following relief. (a) That the Court enter its Order voiding and de- claringinvalid the denial of Plaintiff's Application as constituting a denial of due process; (b) That the Court enter its Order directing the Defendant County Commissioners to approve the Plaintiff's Application and/or authorizing the Plaintiff's mining opera- tion; (c) That the Plaintiff be awarded compensatory damages in an amount to be established at trial; and (d) That the Plaintiff be awarded its costs, expert witness and attorneys' fees and such other and further relief as the Court may deem proper. THIRD CLAIM FOR RELIEF (42 U.S.C. §1983) 14. Plaintiff incorporates the allegations of paragraphs 1 through 13 of this Complaint. -3- 15. This claim is brought under the Civil Rights Act of 1871, 42 U.S.C. 51983, for deprivation of the Plaintiff's right to due process of law and equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution. 16. The actions of the County Commissioners complained of herein were performed in their official capacities as Commissioners of the County of Garfield, State of Colorado, a political subdivision, and were under color of state law. 17. The actions of the Defendants as outlined in this Complaint have deprived the Plaintiff of a valuable property right without due process of law and have invidiously dis- criminated against the Plaintiff in violation of its right to equal protection of the laws. 18. As a direct and proximate result of the actions of the Defendants, the Plaintiff has been damaged. 19. The Plaintiff is entitled to recover its costs and attorneys' fees incurred in this action pursuant to 42 U.S.C. 51988. WHgREFORE, Plaintiff requests the following relief. (a) That the Court enter its Order voiding and de- claring invalid the denial of Plaintiff's Application as constituting a denial of due process and equal protection of the laws, violative of 42 U.S.C. 51983; (b) That the Court enter its Order directing the Defendant County Commissioners to approve the Plaintiff's Application and/or authorizing the Plaintiff's mining operation; (c) That the Plaintiff be awarded compensatory damages in an amount to be established at trial; and (d) That the Plaintiff be awarded its costs, expert witness and attorneys' fees and such other and further relief as the Court may deem proper. Dated this 8th day of June , 1982. ,tG Lance Astrella Attorney for Plaintiff 1801 Broadway, Suite 1205 Denver, Colorado 80202 628-9021 -4- #5183 Address of Plaintiff: 14802 West 44th Avenue Golden, Colorado 80401 CERTIFICATE OF MAILING I hereby certify that a true and correct copy of the above and foregoing Complaint was mailed, postage prepaid, this 8th day of June, 1982 to: Earl Rhodes, Esq. Garfield County Attorney Post Office Box 640 Glenwood Springs, Colorado 81602 -5-