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HomeMy WebLinkAbout4.0 District Court Order & Judgementoo D I STR I CT COURT , COUNTY OF Ca se No. 84 CV 398 ORDER AND JUDGI,IENT GARFIELD, STATE OF COLORADO ANNEL I ESE K. ALLEN, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY, COLORADO, Defendant - This matter came before the Court for hearing on the Plaintiff's complaint for C.R.C.P. 106(a)(a) review of the Defendant's denial of tne plaintiffrs prel iminary plan approval for the Mountain Meadows Subdivision. The Defendant's denial is contained in Resolution No. 84-211, the relevant portions of which are excerpted as foI Iows: ***** "l'lHEREAS, the sketch plan proposal for the parcel was conditional 1y approved by the Board of County Commissioners on April23, 1984 subject to certain conditions being met- The conditions attached to the approval of the sketih plan for the Mountain Meadow Subdivision included the applicant entering into a contract with the Basalt Water Conservancy Di stri ct or the fi I i ng of a water augmentation plan as might be required for the provision of a legal ly and physically adequate and dependable water supply to the proposed subdivision; the creation of a legal ly appropriate entity to control and manage the proposed central water system, with Specific provi sions for enforce- ment of any annual assessments requi red by any contract with the Basalt |.later Conservancy District; that provision be made, by means of protective covenants or other appropriate legal mechaniSms, for the management and operation of the existing underground pressuri zed i rri gation system and that adequate safeguards be put into effect to protect existing wells on adj acent property; and " lo oo .:\ / oo oo 84CV39B "I.lHEREAS , the 0ff i ce of the State Eng i neer , Co l orado Division of Water Resources, in a letter dated July 1, 1984' found that the applicant's water supply plans for the proposed subdivision were not sufficiently developed for that agency to recommend approval of the proposed water supply for the subdivision. The reasons for the State Engineer's office recommending denial of the preliminary plan included: concern over the lack of a Specific mechanism for the ot.lner- ship, control and maintenance of the proposed central water system and the exi sti ng underground pressuri zed i rrigation system as wel I as the admini stration of any contract with the Basalt Water Conservancy District, as well as the lack of adequate information to accurately predict the yields of the wells proposed to supply the central water system for the subdivision; and" "t,IHEREAS, the Garfield County Planning Commission, following the public hearing on the applicantts proposed prel iminary plan, held pursuant to Section 4.20 of the Garfield County Subdivision Regulations of 1984 on August B, 1984, recommended that the proposed preliminary plan be denied on the basis that the proposed residential subdivision would be incompatible with the existing land uses and the surrounding neighborhood, which are predominantly agricultural within appioximately one (1 ) mile of the proposal given its proposed density and that the appl icant had fai led to demonstrate that provisions had been made for an adequate domestic water supply f or" the proposed subd i v i s i on ; and " "WHEREAS, there has been extensive testimony before the Board of County Commi ssioners at the publ i c hearing held on this application in which substantial, competent evidence was presented regarding the compatibi 1 ity of the proposed subdivision with the surrounding neighborhood. The proposed access to the subdivision, County Road 1 1 1, is a relatively narrow, winding farm to market type road which could prove to be inadequate to meet the traffic usage generated by the proposed subdivision. The ability to use County Road 111 for farm to market purposes would deteriorate as vehicle usage increased because of the greater residential density resulting from the proposed subdivision. The proposed sub-division is surrounded by a predominantly large parcels in both Garfield and Pitkin Counties, which have not been subdivided. These parcels have been traditional ly usedfor agricultural purposes and continue to be so used today. An increase in residential density in the area would have a negative effect on the current agricultural usage of the surrounding parcels because of the activities commonly I\ oo oo 84CV398 associated with residential development of the density proposed, including increased vehicle traffic, the negative effect of the keeping of domesti c pets, and other residential activities; and" ***** "I,IHEREAS, the appticant has failed to provide for protective covenants' or other appropriate legal mechani sms for the control and management of the existing underground pressurized irrigation system as wel I as a legal ly apProPriate mechanism for the ownership, control and management of the proposed central water system; and" ***** "N0!{, THEREF0RE, BE IT RES0LVED, as follows:" ***** "3. Substantial competent evidence was submitted that the applicant's propbsed preliminary plan fails. to meet all the cohbitions plhced on the approval of the sketch plan for the Mountain Meadows Subdivision, including but not limited to: the fai lure to provide for the creation of a legal 1y appropriate entity tb control and manage the proposed centrai whter system with adequate powers to enforCe the proVi s ions of any contract with the Basalt l^|ater Conservancy bistrict; the fai lure to provide for an appropriate legal mechanism to manage the existing underground pressurized i rri gati on System, as we I I as adequate safeguards to protect existing wells on surrounding parcels." "4. Substantial competent evidence waS presented that the neighborhood surrounding the subject property in an approximately one ( 1 ) mi le radius, is predominantly agri- cultural in character with residenti aI housing being of significantly Iesser density than that proposed by the app I i cant. " "5. Substantial Competent evidence waS presented that the proposed aCCesS to the subdivision, County Road 1 1 1 , is a narrot^,, winding, farm to market type road, which could be inadequate to meei the demands placed upon it by the proposed subdivision, given its present condition." "6. Substant i a l competent ev i dence waS presented that the proposed subdivision,'given its density and other physical oo oo B4CV39B characteri stics, as set forth in the prel iminary plan submittal would be incompatible with existing land uses and the surround- ing neighborhood which are predominantly agricultural." ***** The defendant relies on the findings with respect to water supp I y and county road to support i ts dec i s i on . The Plaintiff argues that her proposed development comes the exi sti ng zoning and therefore she i s entitled to proceed the requested development as a matter of right. Since this development involves the subdivision of her land, she must o subdivision approval from the defendant. See Vick v. Board County Commissioners of the County of Larimer,-5EFP2cf699, The plaintiff contends that there was no basis either factual lyor in the subdivision regulations for the denial on the basisof an inadequate water supply. Section 4:91 of the Subdivision Regulations of Garfield County, Colorado of 1984 provides: "A water supply plan...shall provide the following inf ormation ...: " "A. In all instances, evidence that a water supply,sufficient in terms of quality, quantity, and dependabi I ity, shal I be avai IabIe to ensure an adequate supply of water for the proposedsubdivision. Such evidence may include, butshall not be limited to:" ***** Ev i dence that pub I i c or pri vate water owners can and will supply water to the proposed subdivision, including the feasibi lityof extending service to the area, proof of I ega I dependab i I i ty of the proposed water supply il ***** "8. If a central supply and di stribution systemis to be provided, a general description ofthe system, as designed by a Colorado registeredengineer. In addition:" "1. Nature of the legal entity which will own and operate the water system; and" "2. Proposed method of f i nanc i ng the water system; " within with roposed tainf p b o tr4 to Ol ot oo 84CV398 C.R.S. 30-28-136(1 )(h)( I ) provides: " ( 1 ) Upon receipt of a complete prel iminary plan subdivi sion, the board of county commissionersor its authorized representative shal I distribute copies of the points of the plan as follows:" " (h ) ( I ) To the state engineer for an opinion regarding material injury, likely to occur to decreed water rights by virtue of diversion of water necessary or proposed to be used to supply the proposed subdivision ..." The defendant determined that the prel iminary plan should be approved, in part because the plaintiff had fai led "tothe creation of a legal 1y appropriate entity to control a the proposed central water system with adequate powers to the provi sions of any contract with the Basalt l.later Cons District Iand] to provide for an appropriate legal me manage the existing underground pressurized irrigation sy wel I as adequate safeguards to protect exi sting wel ls on areas." not prov i de for nd manage e nfo rce ervancy chanism to stem, as surround i ng There was competent evidence in the record to support all of these findings. Therefore the denial must be affirmed. Western Paving Constiuction Co. v. Jefferson County Board of Countf- With respect to the operation of the water distribution system, the plaintiff argues that a weIl, water and road agreement that she intends to enter into with each lot purchaser was sufficient to satisfy the requirement for a legal entity to own and operate the system. That instrument merely provides that each lot ot'|ner waS to pay a one-sixteenth of the cost of operating the system. It did not provide for management and operation of the system nor for ownership of the system. Even if it is implicit that the plaintiff would continue to own the system, no provision was made for the supply of water once all of the lots were sold. Even if it is assumed that the plaintiff was responsible for operation of the system after sale of all of the lots it vras within the discretion of the defendant to determine that that did not provide adequate safeguards for the lot owners. If it is assumedthat the system would become the property of the lot owners' no provision was made for the operation of the system other than by agreement of all of the owners. The refusal to accept such a system as an adequate legal entity was within the discretion of the defendant - \ a ol oo 84CV398 lllith respect to the protection of decreed water rights, t!9 plan to place'the water wbll within 600 feet of an existing well. j;;iifieb a determination that there were inadequate safegualds to piot.ci exi sti;a wet is. The plqint!ff argues t!ul the location of the well is iiinin the jurisdiction of the state engiqegr qnd. not the defendant' c'R's'-30-28- 136(1 )(h)(I) gives the defendant jurisdiction io O.nV subdivision approval based on injury to decreed water ri ghts . The defendant also based its denial on the lack of an adequate county road to service the subdivision. The conCern was the increase in traffic on the county roiO that would be caused by the subdivision' The increased traffic is soiely as a result of the increased land use density. Density is a functioir of zoning. The proqerty.in.question i s zoned fo. i*o" aiie residential use. Tne proposed subdivision i s in conformance with the existing zoning. If' the defendant believes that the allowable zoning resulis in too great a 9e!:ity the. remedy is to change the zoning, not to attempt to control it through !he of Larimer County, SuPra. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED thAt thC dCNiAI of prel iminary ptan approval -by the defendant is affirmed. Dated th i s 1A th day of November , I 988 - BY THE COURT: CEBIIFICAIE OF UAIIING I Certif thst a coPY ol .. f o-dind was maited-to all Counsel of i t day Sf ,t>919.-,,' \,1 L'xt,4 <(, /.,,'nf.- ('r"-(r*"-' 6 GAVINiD rn\a i err DrsTRrcT couRT, couNTY Case No. 84CV398 OF GARFIELD, STATE OF COLORADO RESPONSE BRIEF ANNELIESE K. AtLEN, Plaint,if f , vs. BOARD OF COUNTY CO!,1II{ISSIONERS OF GARFIELD COUNTY, COIORADO, Defendant. COII,IES NOw, the Defendant, by and through its attorney and submits the following Response Brief pursuant to Rule 106 of the Cotorado Rul-es of CiviI Procedure. EgA!-Eg-EI!-9-E-g!-4-SAE-E Anneliese K. A}len owns approximately eighteen (I8) acres of land in Garfield County, Colorado, located approximately two (2) miles south of Carbondale that is accessed by the Dinkle Lake Road. There is currently one (1) house on this property. In 1984, Anneliese K. Allen made a request to subdivide this property into eight (8) lots of approximately two (21 acres or more each. To accomplish this, Anneliese K. Atlen filed a sketch plan and then a preliminary plan to create a subdivision called the Mountain Meadows subdivision. The application for a preliminary plan was referred to the planning Commission of Garfield County by the Board of County Commissioners. The Planning Commission denied the preliminary plan after considerable evidence was presented to it. Such denial was based on several reasons as stated in the Transcript Regarding: proceedings for Approval of the Planning Commission for the Proposed oltI Irlountain lrleadows Subdivislon; Before the Garfield County Planning Commission dated August 8 t 1984 (Transcript of the Planning Commission). Anneliese K. Allen chose to pursue her request before the Board of County Commissioners of Garfield County to obtain approval of this subdivisionr despite the Planning Commissionr s denial of it. The Board of County Commissioners, again after considerable evidence was presented to it, also denied the subdivision request. The reasons for the denial are contained in the Resolution adopted by the Board of County Commissioners (Attachment 1), and the Transcript of Record dated September 10, 1984 before the Board of County Commissioners (Transcript of the Board of County Commissioners). Prior to the Preliminary PIan, Anneliese K. A1len submitted a Sketch Plan for the Mountain Meadows subdivision. This Sketch PIan was approved by the Board of County Commissioners, despite the fact that the Subdivision Regulations of Garfield County in effect at that time provided: 'Informal agreements on the Sketch Plan shall not constitute Board approval at the Preliminary Plan or Final P1at." (See Attachment 2t p. 11.) (In April of 1984, the County enacted new regulations, Subdivision Regulations of Garfield County, Cotorado (subdivision regulations) . ) Ihis approvalr howeverr was conditioned upon Anneliese K. Allen addressing several concerns. Compliance with those conditions was expressly required in the resolution before approval was technically given. (See Attachment 3, Resolution Approving SkeLch p1an.) Anneliese K. Allen is appealing the decision of the Board of County Commissioners denying the preliminary plan for the MounLain : I t 1 Ivleadows Subdivision. This appeal is taken pursuant to C.R.C.P. RuIe 106.The Plaintiff is asserting that the Board of County Commissioners denied the preliminary plan for her subdivision without cause. The Board of County Commissioners' position is that the preliminary plan was denied because the Plaintiff did not comply with the requirements of the statutes and the subdivision regulations' the Plaintiff did not comply with the conditions of the sketch pIan, and the evidence presented to the Planning Commission and the Board of County C6mmissioners was not sufficient to convince either the Board or the Planning Commission that this subdivision met the standards of the reguJ-ations. ARGUMENT I. AN APPEAL BROUGHT PURSUANTIS LII,IITED TO A FEVIEW DISCRETION OR EXCEEDED ITS Challange to the quasi-judicial is subject to review under TO RULE 106 (a) (4) , C.R.C.P., OF WHETHER THE BOARD ABUSED ITS JURISDICTION. action of a board, as in this C.R.C.P. RuIe 106, C.R.S. (1987case, suPp- ). Pursuant to Rule 106 (a) (A) (I) : "where any governmental body or officer or any lowerjudicial body exercising judicial or quasi judicial functions has exceeded its jurisdiction or abused itsdiscretion, and there is no pIain, speeding and adequate remedy otherwise provided by law: I. Review shal1 be limited to a determination ofwhether the body or officer has exceeded its jurisdiction or abused its discretion, based on the evidence in therecord before the defendant body or officer. " The burden of proof faIls upon the Plaintiff, Anneliese AIIen, to prove that the inferior tribunal-, the Board, lacked jurisdiction or abused its discretion. g!ggy*_y-_*g9g$y___qg_gf!,651 P.2d 908, (Colo. App. 1982). The Plaintiff is alleging that the Board both exceeded its jurisdlction and abused its discretion by denying the preliminary plan for her subdivlsion. The plaintiff alleges that the nobjective criteria contained in the regulation governing zoning and subdivisions have been met in the instant case'.(Plaintiffrs Brief, Page 18.) to be based on the premise that the Board denied the subdivision because it. did not meet the icharacter of the area'. The Plaintiff also claims that the Board cannot deny the subdivision request when access by existing County Roads is adequate, because there are no standards to measure the adequacy of roads. Lastly, the Plaintiff asserts that the issue of adequate supply of water was addressed adequately and could not be a basis for denial of her preliminary plan. "The standard of administrative action, the ultimate findings of evidence. " 999psr__y:= 604 P.2d r186 (1979). Denver, 552 P.2d 13 Court must review the record and uphold the decision of the inferior tribunal, unless there constitutes an abuse of Under RuIe 106, District Court "sha11 whether the inferior abused its discretion". Bqggg-y:--!!!y---9-E--E!gg!--3]gg-9, t82 Colo. 324, 5I3 P.2d 203 (1973) .Even if there is conflicting evidence on This claim seems review under Rule 106 (a) (4) , of final is whether, on the basis of the whole record, the agency are support by any competent Civil Service Commission, 43 Colo. ApP. 258, See aIso, Co_Epeg--Y:--S]!y--e!g*-!ggl!y--gE (Colo. 1976). In RuLe 106 proceedingsr the is no competent evidence to supporL it and it discretion or exceeds its jurisdiction. C.R.C.P., the role of the review of the not be extended further than to determine tribunal has exceeded its jurisdiction or 4 a point, absent a showing of an abuse of discretion, this Court must affirm the Boardrs decision. What the Plaintiff fails to recognize in this case is that all the applicable statutes and regulaLions must be met. The reasoning that the plan is incompatible with the Master PIan alone may be insufficient to support the Boardr s decision in this case. However, that reasoning does not stand alone. There are several other deficiencies in the plan that yrere noted and cited as reasons for the denial of deficiencies not only support but call for a denial. it and these Counties have only "such povJers as are granted to them. by Colorado Constitution or delegated to them by the General As sembly ' . E_9ey9_I*_U9gg9!_g__y:__E99g9__e_f**9p_g$y__g94g_gEl9!e_f_9__ oJ 9g$!y_gJ_!g:_igS:, 709 P.zd 932 (Col-o. 1985). rhe Board was acting under its delegated power and pursuant to standards duly enacted by the Legislature when the Board denied this preliminary p1an. The Plaintiff's complaint is faulty, in that she fails to recognize that the Board was not convinced by the evidence she presented on the issues she is compelled to address pursuant to the statute and regulations. Her appeal to the District Court to overturn the Boardrs decision cannot be sustained under the standard of review thaL exists in a Rule 106 appeal. rI. THE BOARDI S DECISION TO DISAPPROVE THIS SUBDIVTSION REQUBST WAS BASED ON COMPETENT EVIDENCE SHOWING THAT THE SUBDIVISION REGULATIONS HAVE NOT BEEN MET. After a public hearing was held, testimony taken and evidence admitted, the Board made findings and ru1ed. The fifth, sixth and tenth whereas clauses of the Board's Resolution speak to the evidence that was presented on the issue of providing adequate water 5 for this subdivision. Those clauses all cite, very specifically, that there was not sufficient evidence to show to the Board that there is an an adequate and continuing Source of water for the subdivision. Those clauses also cite a lack of compliance by the appficant of providing appropriate lega1 mechanisms for management of a water system. In ParagraPh 3 stated: of the Resolution, the Board .3. Substantial competent evidence was submitted that the applicant's proposed Preliminary Plan fails to meet all of llre conditions ptaced on the approval of the sketch plan f or the l"lountain Meadows Subdivision, including but not limited to: the failure to provide for the creition of a IegaIIy appropriate entity to control and manage the p.opo"dd Lenliaf- water system with adequate powers Lo enforce the provisions of any contract with the Bisalt Water Conservancy District; the failure to provide for an adequate appropriate legal -mechanism to manage the existing tinderground- pressurized irrigation system, as wel-l ai adequate safeguards. to protect e-*isting we11s on surrounding parcels. " (See AttachmenL 1, p. 2.1 Upon review of the Transcripts of the Planning Commission and the Board and upon review of the evidence that was presented at those hearings, it becomes readily apparent that the applicant did not present adequate evidence to meet these concerns. On the issue of whether adequate evidence need be presented concerning the water supply for subdivisions, several issues must be addressed. The primary concern is whether or not there is an adequate physical supply of water. Regulation 4:91 states: "Water supply pIan, dt the same scale as the Preliminary pl-an, sfriif- |rovide the following information in graphic and/or written form: A.In all instances, evidence that a water supply, of quality,quant ity andsufficient in termsdependability, shal1 be supply of water, for evidence may include, but available to insure an adequate the proposed subdivision.shaIl not be limited to: Such 6 1. Evidence of ownership or right of acquisition or use of existing and proposed water rights; 2. Historic use and estimated yeild of claimed water rights; 3. Amenability of existing rights to change in use i 4. Evidence that public or private water owners can and will supply water to the proposed subdivision, including the amount of water available for use within the subdivision by such providers, the feasibility of extending service to the area, proof of the legal dependability of the proposed water supply and the representation that all- necessary water rights have been obtained or will be obtained or adjudicated, prior to submission of the final plat; and 5. Evidence concerning the potability of their . proposed water supply for the subdivisioni" Two hearings were held, one before the Planning Commission and one before the Board of County Commissioners. The evidence presented by the appticant at those hearings was that ten gallons per minute is necessary and that a single well drilled in this area would yield from six to ten gallons per minute. (See Attachment 4, Letter from Dean Gordon to Mark Bean dated August 30, 1984, and Attachment 5, Engineering Report from Schmueser Associatesr PP. 3-4.) There was substantial evidence contradicting this contention. Before the Planning Commission, several individuals, including the staff of the planning Department of Garfield County, indicated that there was not sufficient evidence to show that there was an adequate supply of water. For example, oo page 1I of the Transcript of the Planning Commission, !,1ark Bean stated that "the developer's engineers have determined that it wiIl be necessaiy to pump ten gallons per minute to meet the peak hour demands of the subdivision. The engineer has not provided any data to support his position that the new well can provide the needed ten gallons per minute, other than stating that the existing well has provided an adequate water source and developed fairly easily. " that a new well could be Mr. Turnbull also expressed concerns about supply at that hearing. In that Transcript on 'WelI, all I am saying, from wheredrilled Lwo dry welIs and well I have nowa single family house and you heard Bobthat well has gone dry and Johnny Cerisehis well and he's a neighbor right their." The applicant's engineer himself admitted that no test pump had been done on any existing well to determine what yield could be expected from a well drilled in that area. By the time this case came before the Board of County Commissioners, the applicant obtained additional information consisLing of opinions from 1ocal welI drillers as to the poLential yield of a wel} drilled in that area. The summary of the comments of those well drillers is contained in AttachmenL 4. Well drillers are licensed to drilI welIs, and are not qualified to give opinions about water supply.In the proceedings before the Board of county commissioners, other evidence of supply was presented. lllr. Turnbull toLd the Board about we1ls he had drilled that either were inadequate to service his house or came up dry. (Transcript of the Board of county commissionersr p. 32.) Ms. Mclntyre in a letter dated August 4, 1984, cited concerns of water supply and traffic on the road. (See Attachment 6.) Another concern expressed was whether the expanded use of ground water in this area would have an affect on existing homeowners and water users. Such concern goes directly to the issue of adequate supply. Mr. Emerson, in a retter dated september 6, 1984, cited his concern that the well proposed for this subdivision would adversely affect his well. (See Attachment 7.1 This concern the adequacy of the page 37, he stated: I used to Live, Iis marginal for Emerson say thathad to redrill was addressed at the hearings and by the report of Schmueser & Associates. (See Trancripts and Attachment 5.) The well proposed for this subdivision was to be located approximately 375 feet from the existing well that was servicing Mr. Emersonrs house. Section 37-90-137 (2) , C.R.S. 1973, (1987 Supp. ) r mandates that wel1s be located at least 600 feet from existing welIs. The evidence tendered by the applicant that the new well would not affect the existing we1I is statutorily deficient. This requirement of spacing wells 600 feet apart has not been met. The applicant's bold assertions that there would be no effect on other wel1s appear to be based on a cursory review of whether the waLer supply is adequate, without doing any actual work on the grounds or complying with State water Iaw. The system devised by the applicant involves the use of an alternate source of water to cover or augment the in-house uses of water. This augmentation plan involves obtaining water pursuant to a contract on a yearly basis from the Basalt Water Conservancy District. The contract for such augmentation water must be renewed and paid for each year. The applicant asserted ora1ly that a system would be devised to insure that the homeowners kept up the contract with Basalt, howeverr ro formal plan was submitted to the Planning Commissi.on or the Board of County Commissioners as to how this would be accomplished. Similarlyr rro agreement was tendered concerning well maintenance or maintenance of the proposed system for irrigation water r^ras provided. On page 34 of the Transcript of the Planning Commission, Bob Emerson stated: '... there should be some sort of system that controlswho turns on the power, who pays for the power and what happens if something breaks and how is the responsibility of the four-inch line divided between two-inch line and that sort of thing. I don't think that that has been adequately addressed maybe, ....' The subdivision regulations, Regulation 4:91, requires that: B. If a central supply and distribution system is to be provided, a general description of the systemr ds designed by a Colorado Registered Engineer' in addition: 1. Nature of the IegaI entity which will own and operate the water system; and 2. Proposed method of financing the water system; The applicant provided inadequate evidence of the nature of Iega1 entity which will own and operate the water system. At point in the progression of this case, the applicant did state such maintenance association would be similar to that as spelled in the welL water and road agreement which was tendered as exhibit.(See Attachment 8. )This agreement, however, is a the one that out an one would such contract between Dr. Allen and another individual for the use of wel-I. No modifications were made to reflect that a new well be drilled and it would service several homes and how agreement, including the augmentation requirement, would be met. There are several other instances in the record which show that the Board and the Planning Commission were inundated with evidence contesting the feasibility of the Mountain Meadows subdivision on the grounds that the water supply was not adequate and that the system was not fu11y or wel} thought out. No well permit was applied for or obtained from the State Engineer. Section 4:11 of the subdivision regulations requires that "al1 permits required by Colorado State law have been obtained or in the process of being obtained. " 10 o Section 4tJ.2 of the subdivision regulat,ions require that the State Engineer and the Department of Health be consulted by the County at preliminary plan stage. The State Engineer provided an opinion that the subdivision water supply was inadequate based on the information that was provided to him. (See Attachment 9.) No change of position was sought by the Plaintiff before the hearing was held with the Planning Cornmission or the Board. The State Engineer is the State's expert on water rights and administration of water rights. The County is required to consult and can therefore rely on his opinion. If the Plaintiff wanted to comply with the requirements and obtain a finding of an adequate supplyr sh€ should have addressed each and every one of the concerns stated in the State Engineerrs letter and solicited or asked the County to solicit a change of opinion from the State Engineer. Then that evidence should have been presented to the Board of County Commissioners. The Plaintiff chose not to take that action and should therefore be prohibited from now complaining about disapproval by the County Commissioners, which is based, in partr on the disapproval by the State Engineerrs Office. The Board was also unsatisfied with the road access to the subdivision.Numerous parties testified before the Board that County Road 11I is inadequate size. The Plaintiff provided service a subdivision of this information or evidence as to the to no adequacy of the road or how any problems with access would be addressed, The Board can consider the availability and suitability of public access in determining whether a subdivision is proper. The subdivision regulations, Sections L:21 and 1222, speak to 11 1,l {l l over extendinginsuring the orderly development of property and not public services and public support facilities. The Plaintiff chose to not address the issue of adequacy of the road systems. The only evidence before the Board was that the road system is inadequate to support development of the subdivision in that area. In the Transcript of the Planning Commission the traffic problem was addressed by several people. Tom TurnbulL stated on page 52 that the only impact, of a subdivision further up on the road is the tremendous volume of traffic. Bob Emerson sEated on page 31: "It's a windy road, it has very steep hills and you constantly come around the corner Lhen there is car you haven't seen or a child on a bicycle and that problem isgoing to be exaggerated. Itrs a road that has potholes, it's a road that's not patrolled, it's at the very end of the County line, it's a problem. Something, I think, You should consider. " On page 25 of the lranscript before the Board Commissioners, ME. Turnbull told the Board of County 'I cannot continue to operate my operation, if the, if that kind of volume of traffic is on that road. I canrt put my cows on there. You know, I can't put my haying machine on there. I can't get on that road. f canrt get off that road when I need to, to do it and, and it wouldjust become a viable impossibilit,y for me to operate my business. So that one of the major things - problems that I see on that road is the traffic volume eight houses at four, dt four car trips per house is thirty-two more trips a day on that road and its already substantially impacted. The, the number two problem I havg....' Absent competent evidence to the contrary, the Board had no choice but to find that the subdivision plan was premature and would not be in the best interests of the County to go forward at this time because the County Road was simply inadequate to handle a greater volume of traffic. t2 I n the ca se o f We slSf n*-!gy] ng*-*c9n-E!ggS!.1e1--99:--Y=--JS! fg:egn gsgn!y__E-9e_Eg_-_g-f---ge-g!!y--Sgggfeelg!9rs, 689 P. 2d 703 (coIo. App' 1984), the same issue was presented to the court and the CountY Commissioners decided to deny an application for rezoning. One of the reasons was because of the adverse impacts of traffic. In that case the Court stated: "The bulk of the evidence concerning the adverse impacts of traffic came from concerned citizens. Western infers that citizens' testimony cannot be believe when professional planners and engineers . found that the road bould physicaliy handle the gravel trucks. We find this argumeit to be without merit. Section 30-28-116, C.i.S., l1g77 rep1. vo1. ) requires public notice and a public hearing Eo be held on a proposed rezoning. It ' iogically foliows that the opinions expressed _ at the puSf ic h-earing by ordinary citizens can be considered by tt e commissioners. n rygq!g-t!*!gv]!-g, s-9Prg, dt p. 706 . As in gestgrn__!gvf_!9, one of the enacted was to "lessen congestion of reasons that regulations were streets or roadsn. Traffic are well documented bY was not convinced bY the considerations are a legitimate concern in deciding whether subdivisions should be al1owed. a legitimate zoning objective "A decision made in furtherance of is not an abuse of discretion. gllY 9J_ge_I-9gege__Epglggs*v.*Smart, 620 P. 2d 1060 (coto. 1981) . "Western Eevlng, sgprg at p. 707. All of these above-stated concerns adequate evidence in the record. The Board Plaintiff's evidence presented at the hearings. When there is conffict of evidence or difference of opinionr dll adverse decision can not amount to an abuse of discretion or action in excess of j ur i sdiction.A difference of opinion is not a reason to overturn the Board's decision on an appeal pursuant to RuIe 106. "Where the 13 record supports the findings, a reviewing Court must uphold the City CouncilIs action. r Pgge-f_y=_gl!y_g_f*El9g!*B-1gg_g, sgprg at p. 203. The Plaintiff cannot support her statement that "the reasons are insufficient as a matter of 1aw to support the denial of the subdivision and were a simply attempt to accommodate adjacent landowners in disapproval of this subdivision." (plaintiffrs Brief at p. 14.) The Boardrs resolution shows that there were several reasons which contributed to the denial of this preliminary pIan. Such reasons are supported by substantial and competent evidence that exists in the record. III. THE SUBDIVISION OF PROPERTY REQUIRES APPROVAL WITHIN A STATUTORY AND REGULATORY SCHEME AND IS NOT A NUSE BY RIGHTN AS THE PLAINTIFF ASSERTS. Section 30-28-133, C.R.S., (1986 rep. voI.), sets up a scheme for the subdivision of property. That section mandates that counties enact subdivision regulations.Garfield County has complied and enacted subdivision regulations. The statuter ds well as the regulatiolrsr specify that subdividers submiL to the Board of County Commissioners detailed descriptions of several items. Included in Section 30-28-133 are: (d) Adequate evidence that a water supply that issufficient in terms of quality,sufficient in terms of quality, quantity,dependability will be available to insure an aan adequate and supply of water for the type of subdivision proposed. Such evidence may include, but shall not be limited to: (I) Evidence of ownership or right ofacquisition of or use of existing and proposed waLersupply; (II) Historic use andclaimed water rights; (III) Amenability of existingin usei estimated yield of t4 rights to a change o O. :' : i(Iv) Evidence that public or private water owners can and will supply water to the proposed subdivision stating the amount of water available for use within the subdivision and the feasibility of extending service to that areai (v) Evidence concerning the potability of the proposed water supply for the subdivision. There are several other requirements also included in this section. Additionalty, Section 30-28-135, C.R.S., (I986 rep1. vo1.) requires that the preliminary plan documents be refined and reviewed by various agencies. Section (1) (h) states: (I) To the st,ate engineer for an opinion regarding material injury Iikely to occur to decreed water rightsby virtue of diversion of water necessary or proposed to be used to supply the proposed subdivision and adequacyof proposed water supply to meet requirements of the proposed subdivision. If the state engineer finds such injury or finds inadequacy, he shall express such finding in an opinion in writing to the board of county commissioners, stating the reason for his finding, including, but not limited to, the amount of additionaL or exchange water that may be required to prevent suchinjury. In the event the subdivision is approvednotwithstanding the state engineer's opinionr the subdivider shaIl furnish to all potential purchasers a copy of the state engineer's opinion prior to the sale or a synopsis of the opinion; except that the subdivider need not supply the potential purchaser with a copy of such opinion or synopsis if, in the opinion of the boardof county commissioners, the subdivider has corrected the injury or inadequacy set forth in the state engineer's f inding . (II) A municipality or quasi-municipality, upon receiving the preliminary plan designating said municipality or quasi-municipality as the source of water for a proposed subdivision, sha11 file, with the board of county commissioners and the state engineer, a statement documenting the amount of water which can be supplied by said municipality or quasi-municipality to proposed subdivisions without causing injury to existing water rights. The state engineer sha1l file, with said board of county commissioners t wtitten comments on the report. If, in the judgment of the state engineer, the report is insufficient to issue an opinion, the state engineer sha1l notify the board of county commissioners to this effect, indicating the deficiencies. 15 tandowners must comply with both the statutes and the County regulations when applying for a subdivision. rn E!gp!ggg!__y= Ege_Ig_ - 9_f * _Sg_U n!y__ Sg$S_i-E_E_19!9-t_E_ _9-t_ E_l__BaSg_S eg n!y, s 4 3 p . z d s 2 4 (Co1o. App. 1975) on page 527, the Court stat,ed: "Here, the landowner argues that since the proposed useof land was a use by right under the zonlng- raws, theBoard had no alternative but to either change tfre zoningor approve the p1at. This argument fails to take intoconsideration that a subdivider- must first meet thezoning regulations and then additionally must comply withstate and county subdivision statutes and regulations. " This argument is being made in this case now before this court. on page 18 of the plainLiff's Brief, she asserts that: 'The fact is that zoning on the subject propertypermitted single family residences on two (rl acie - rotsand that zoning standard is an objective standard ofcompatibility to other uses . o. rf a uie is permitted asa matter of right in a zone district, County regulationscannot be used as mechanism for denial of that use. " While it is true that zoning of this area permits single family dwellings on two-acre lots, the review process does not stop there. There are enumerated guidelines and criteria for subdivision of property that provide for the orderly planned development of the County. The Board does not have the authority to approve a subdivision when the statutes and regulatory requirements have not been met. SecLion 30-28-133, C.R.S., (198G rep1. vo1. ), states: (5) No subdivision shall be approved under section30-28-1I0(3) and (4) until such data, surveys, analyses,studiesr plans, and designs as may be requiied by - thissection and by the county planning commission or theboard of county commissioners have been submitted,reviewed, and found to meet alr sound planning andengineering requirements of the county contained i; itssubdivision regulations. (6) No board of county commissioners shall approveany preliminary'pIan or final prat for any subdiirision 16 located within the county unless the subdivider has provided the following materials as part of thepreliminary plan or final plat subdivlsion submission: (a) Evidence to establish that definite provision has been made for a water supply that is sufficient in terms of quantity, dependabilit.y, and quality to provide an appropriate supply of water for the type of subdivision proposed; (b) Evidence to establish that, if a public sewage disposal system is proposed, provision has been made for such system and, if other methods of sewage disposal are proposed, evidence that such systems will comply with state and locaI laws and regulations which are in effect at the time of submission of the preliminary plan or final plat; (c) Evidence to show that all areas of the proposed subdivision which may involve soil or topographical conditions presenting hazards or requiring special precautions have been identified by the subdivider and that the proposed uses of these areas are compatible with such conditions. The Plaintiff asserts that since this is not a request variance of the zoning of the land that she is entitled to This assumption are binding upon for a the approval of her request.ignores the fact that her as well as thesubdivision requirements Planning Commission and Board of County Comrnissioners. While it is true thaL 'a subdivision plat may not be disapproved, if the subdivision controls or regulations have been complied with, " those regulations must be complied with to the satisfaction of the Board in the first p1ace. YfS!__Y:_-Eoe-{g_-9E g9-g!!y*_-ggggfgSle!srg__98__!eftgsr__99g$y, 689 P.2d 6e9 (Co1o. App' 1984), In this case, the PtainLiff has not complied with the subdivision regulations and satisfied the Board of County Commissioners that there is an adequate supply of water or adequate road access for this subdivision. L7 The preliminary plan stage subdividing proPertY is the critical stage in determining the viability of a subdivision. Filing of a sketch plan is the initial stage and is to provide a potential preliminary plan applicant wiLh comments or suggestions on what that apPlicant should address at a later stage. The approval or denial of a sketch plan at this time is premature and cannot be relied on. A final plat is the finalization of the approved preliminary plan and serves to insure that all the conditions of such preliminary plan have been met. No public hearing is required for a final p1an, nor are there any specific requirements t:t a final ptan. PubIic and board input into the creation of a subdivision is done at preliminary plan time. This is also when all the evidence is presented at a public hearing on the specifics of the plan and when the County has the power to direct and control such development. This evidentiary requirement and the controlling standards are not paper requirements as the Plaintiff suggests- For the preliminary plan stage to be meaningful, all evidence should be scrutinized and considered to gether to determine whether the project is feasible. Approval cannot be given until the Board of County Commissioners is satisfied that the project meets "a11 sound planning and engineering requirements of the County as contained in 1n (the statutes and) its subdivision regulationsn. 30-28-133 (5 ) , C. R. S. , (1986 rep1. vo1. ) . IV. IT IS IN THE COUNTYIS BEST INTEREST TO INSURE THAT AN ADEQUATE WATER SUPPLY AND ROADS EXIST FOR ITS RESIDENTS. fn Shoptauglr EuPIa, the Court found that the Board acted properly under acceptable standards of health, safety and welfare to disapprove a subdivision based on extreme fire hazard. Those same Section 18 standards, ] health, safety and welfare, can be fgund subdivision regulations, Section 1:21. Section 1:21 states entirety: rThe subdivision regulations are designed andenacted for the purpose of promoting health, safety andwelfare of the present and future inhabitants of Garfield CounLy by encouraging orderly development, in accordancewith established County policies and plans and, infurtherance of the general policy of balancing thediversified needs of a changing population, includinglessening congestion of streets or roads, reducing wastein excessive amounts of dangers of roads, securing safetyfrom fire, flood waters and other dangers, providingadequate light and air, classifying land uses and thedistribution of land development and util Lzlng,protecting the tax base, securing economy in governmental expenditures,industries, and development. ' fostering agricultural and other in the in its protecting both urban and non-urban to proceed despite concerns about waterTo a1low a development availablity, future supply,affect on other users, and availability of access and overtaxing the Countyrs streets and roads would be irresponsible on the Countyrs part. Such approval would violate the very purpose that developers are required to come before the Planning Commission and the Board at a public hearing. Section Lz22 of the subdivision regulations states: The Board of County Commissioners may deem landpremature for subdivision when growth patterns of suchform and physical shape are created such thatgovernmental inefficienciesr unn€cessary public cost orfinancial burdens result from providing the extension ofpublic services and public support facilities whichcannot be accomplished in a planned, ordered or efficientmanner, or when the services or resources necessary forthe viability of a subdivision are neither assured norreasonably certain. Considerable evidence was presented of the inadequacy of the water system and of County Road 1I1.No efforts were made by the Plaintiff to address some of these issues that were set forth. Development of this subdivision is 19 clearly premature and not very hre1l thought out. The County should not approve a subdivision that may prove to later cost its taxpayers many dollars to improve a road system or insure that such purchasers have an adequate supply of water. The Garfield County Comprehensive Plan, adopted in May of 198I, was cited as a reason that this subdivision was denied. fn their disapproval, the Planning Commission and the Board of County Commissioners stated that Lhis subdivision is not in accordance with the comprehensive plan for the County. The comprehensive plan addresses several concerns and policies that the County is to enact in deciding zoning and subdivision concerns. To cite all instances where this plan does not comply with the comprehensive plan would be lengthy and too cumbersome for purposes of this appeal. Generally, howeverr the comprehensive plan demands that water availability and transportation concerns be addressed. ft states that agricultural concerns be addressed to insure the compatibility of development proposals with existing farms and ranches. It states as objectives and goals that roads be adequate to serve additiona] development and that developers be required to prove a lega1 and reliable water supply. (See Garfield County Comprehensive PIan, pages 3, 10, 17, 20-24, 36, 42-43, 70 and 83-85. ) Section 4:33 of the subdivision regulations includes the Garfield County Comprehensive PIan in the list of items that are to be consulted in deciding on the conformity or compatibility of the proposed subdivision. The Garfield County Comprehensive Plan should be read in conjunction with the subdivision regulations and 20 statutes, and used as a guide t.o determine whether adequate evidence has been submitted to allow the subdivision to proceed. There is nothing to prevent the plaintiff from coming back to the Planning Commission or the Board of County Comrnissioner when the plan is more fully developed and the concerns stated above can be adequately addressed. The Plaintiff's real remedy in this case is to meet those concerns and address them to the satisfaction of the regulations,. It .is only then that this subdivision should be allowed to go forward. V. THE COUNTY COMMISSIONERS CONDITIONALLY APPROVED THE SKETCH PLAN AND THE PLAINTIFF DID NOT UEET THOSE CONDITIONS AT PRELIMINARY PLAN TIME. The Plaintiff's argument that approval was given for her sketch plan and she relied on it is without merit. The regulations in effect at that time specifically stated that agreement on a sketch plan shal1 not constitute approval of the preliminary plan. Section 3:03 of the prior subdivision regulations (Attachment 2') does allow for 'informal agreement' which could be interpreted as approval. However, the sketch plan procedure was enacted for the purpose of allowing the Plaintiff to come before the Board in the preliminary stages of a subdivision to obtain comments of the Board on what the Board would like to see done. Sketch plan review has few requirements and determines wheLher the development should be continued to the next stage and is "subject to further review and regulations". (Attachment 2t p. 11.) Reliance on "approval" by an applicant as suggested in this case could not be properly taken. The regulations and statutes for subdivisions show that preliminary plan stage is when criticaL review is made. 2t The "approval" that vras glven vras conditioned upon several items. The conditions in paragraphs 4, 5, and 7 of that approval state: 4. That a legalIy appropriate entity be formed tocontror and manage the proposed waLer system, withspecific provisions irom roriin! the puy*"ni- of annualassessments to pay the Basa1t Water Conservancy DisLrictas agreed upon by contract. 5. That the protective covenants include amanagement. system to maintain the existing undergroundpressure irrigation system and that each lot be asiignedon equal proportion of the water rights. 7. That it be demonstrated at preliminary planthat adequate saf eguards have been ta-ken to prolectexisting wel1s on adjacent properties. (see Attachment 3.) The Plaintiff is asserting that she relied upon the "approval" of the sketch plan to her detriment. This alleged reliance necessarily had to include the conditions that were plainly listed in that "approval", as well as be based on the purpose for sketch plans and degree of review given them by boards. Since those conditions were not met at preliminary plan time, she could not rely on the approval of the sketch p1an. Thus, her statements that the Board mislead her are simply without merit. CONCLUSION The County acted within the guidelines of the Subdivision Regulations and statutes in deciding to disapprove the Mountain Meadows Subdivision in this case. The Subdivision Regulations clearly require that aL preliminary plan time the adequate evidence of a water supply and access via the County Roads be in pIace. The Boardr ds well as the Planning Commission, was persuaded by the evidence presented by the opposers showing that this subdivision was not well planned out at this time. The Board did not abuse its discretion or act in excess of its authority in this case. The 22 o burden met in Board placed this case of County DATED this upon t,he Plaintlff in a Rule 106 appeal has and the Court should uphold the decision Commissioners. --/lfaay of June, 1988. Respectfully submitted, not of been the a7- Assi Garfield County Attorneyreet, Suite 300109 8th Street, Suite 3 Glenwood Springs, CO 8160I(303) 94s-9rs0 ATTORNEY FOR DEFENDANT 23 rl the undersigned, hereby certify that a t e foregoing Response Brief vrars deposited1, postage prepaid, this 1_6_Yday of June, the undersigned, hereby certify that a true and accurate the foregoing Response Brief F_qs deposited in the Unitedcopy of States mai1, posiage-preplid, this /_Cy Schenk, Esquire Bank BuildingStreet, Suite 310Springs, CO 81501 1988, to: John R. Central 302 Brh Glenwood 1, o I 1i li i i I Lr t I I o OFDrsrRrcr corrRT, COITNTY OF GARFTELD, STATE Case No. 84CV398 COIPRADO ANSWER BRIEF ANNELIESE K. AT.LEN, Plaintiff, vs. BOARD OF COT NTY COMITrISSIONERS OF GARFIELD COt lfltY' COITRADO, Defendant. COIIES NOW, Plaintiff, by and through her attorney, and submits the following Answer Brief to the Response Brief submitted by the Defendant herein- The Defendant in its Response Brief has focused on two (2, aspects of the denial of the Preliminary Plan approval for the Mountain Meadows Subdivision. Those issues are water and the County Road leading to the subdivision. In respect to the water issue, Ptaintiff has met the requirements of Regulation 4:91. The specific optional infomation set forth under Subsection A of that regiulation is met by the Plaintiff's contract with the Basalt Water Conservancy District for a tegal supply of donestic water to be diverted through a weII located on the subdivision. Defendant has alleged that there rras insufficient evidence to show ttrere was an adequate physical supply of water. The only two (21 . re.ferences the Defendant could use to support that allegation of insufficiency were the staternents on Pages 7 and I of the Respondent,s Brief . lfhe first \ / I statement bY o Hr . Bean is taken out context.The plaintiffrs engineer, Dean Gordon, made an extensive presentation and diseussed the issue of availability of water on the site and used the existing well as evidence of the availability of such water. His testimony appears from Page L9, Line L7, through Page 22, Line L4, of the proceeding of the Planning Commission and also appears from Page 35, Line 18, through Page 38, Line 15, of said transcript. It is hardly fair to characterize the testimony as one of uncertainty as to the possibility of Gt"t development. The second statement used by the Defendant's counsel (Page I of the Responsive Brief) was self serving and was clearly speculation unsupported by any facts regarding this property. _statements as to availability of water on other properties whictr may or may not share common geology are not evidence on this site. The entire matter of the adequacy of the water supply in this proceeding etas totallyr inappropriate. In response to a Planning Cornnissioner's statement with regard to the concern for adeguacy of the water, Mark Bean, the County Planner, stated unequivocally (Page 47, Line 6 through g, of the Planning Commission transcript) that, rrThere is no reguirement that you have to drill a well before the Final Plat is approved. They are going to have to prove, dt the time they apply for a buitding pelmit, that they have a domestic t ater source within the 'unintelligible'. I' This position has been the policy of the Board of County Cornmissioners and the o of I I \ -2- o Subdivision Regi"ulations since their o the \ standards of inception. Ttrere is no requirement that a developer obtain a well perroit for the purpose of drilling the well or prove the physical capacity of the water during the subdivision approval process. This step is taken after subdivision approval and before construction. Notwithstanding the statement of the Defendant in the Responsive Brief, there is no requirement that matters regarding water supply be fully and finally resolved before a subdivision plan is approved or denied. Another asPect of the water issue raised by the Defendant was an allegation that'the Plaintiff had failed to comply with C.R.S. 37-90-L37(2). It is noteworthy that this is the first time this issue has been raised. The Defendant noll tries to use regplations and procedures of other governmental agencies which procedures would customarily follow the subdivision approval as a basis of denial of the subdivision. In fact, the authority for the issuance of a well permit is vested in the State Engineer. Notwithstanding the Defendant's statenents, it is possible to locate wells within 500 feet of existing wells based on a hearing before the State Engineer. This is not a hearing that takes place before the County as the County does not have jurisdiction in this matter. In addition, a review of the Subdivision Plat indicates that it is guite easy to locate a erelI at least UO9 feet from the existing weII and remain within the subdivision boundaries. There is no statutory deficiency in the process. -3- o ice o aspect \ Another of the water serv issue dealt with the item which was variously stylecl as rtlegally appropriate...-, entitytr or nadequate appropriate legal mechanismrr. Once again, this is a basis of denial which is not supported by the record. As has been stated irr the Brief, there is no zoning regulation requirement that a corporation be formed for the purpose of operating or maintaining the water and irrigation systems. Based on the smarr number of units in this proposed subdivision, a private agreement between the parties is appropriate. Notwithstanding the conments of the Defendant's counser in the Responsive Brief, the initial subrnittar of the Prerirninary plan incruded a response to section 4:60A that ttcommon facilities to be shared by the subdivision wirr be the domestic walter welr, piping systems, certain irrigat_ion and water rights; and the access road to the various rots. The tezas of the joint use of these facilities wilr be similar in for:urr to the werr, water and Road Agreement previously entered into by trtrs. Alren and the otners of properties constituting the two exempt lots rying north of the subdivision. The form of the werl, water and Road Agreement is attached as an Exhibit., (emphasis suppried) The fom of the agreement was bef,ore the staff and the Planning com:nission from the outset and no objections to the format were ever voiced in any proceeding untir the finar decision by the Board of county commissionera on october. 1, 1984. The form of this agreement wourd provide for equar sharing of operational costs as outlined in paragraph 3 of the sampre agreement and tr -4- o aPh o agreement, assessments forunder Paragr 11 of the sample collection of charges not paid by a defaulting Party would be collectible in an action at Iaw, together with interest and attorney's fees. The arrangement provides an adequate mectranism for both operating and maintaining the weII and also to pay any costs or charges incurred in connection with the Basalt water contract. Each party to the agreenent could protect =ucl party's rights by paying any amount due and have a claim against any nonpaying party to the agreement. It is difficult to understand how that mechanism would not be sufficient. Defendant,s counsel choses to set forth examples which seem to argue a specific contravention or failure to comply with the zoning regulations. It is clear that from the Countyrs Planning Staff position as reflected both in the Staff ctrecklist which is included in the certified record and the Staff's initial conments to the Planningr Conmission, that the Staff found no specific insufficiency and, in fact, recomnended approval to the Planning Cornmission. The specific alleged deficiencies are simply makeweights which are insufficient as a matter of Iaw. with regard to the statements of the State Enqineer, Defendant,s counsel has stated that the Plaintiff should have addressed each and every concern stated in the State Engineer's letter. In fact, resPonse was made in the submittat to the Planning Department and in the cornments starting at Page 1O, Line 4, through Page 11, Line 24, of the Planning Com'nission transcript. It is not a fact or a -5- o pprova Ins , the demonstration of physical supply of water is a matter to be detemined before .building permit issuance approval. under the is not a condition precedent for subdivision ct on adjacent water sources is a matter the questi isdiction of the State Engineer's office and of a rrlegally appropriate entitytr, whatever that phr may mean, if anything, is a condition of not a reason for denial.approval a part of Commissione Engineer's The r demonstrati decision. raised unti no criteria access statement o Regu-lations Defendant's Commissione: rrl want to all over Ga County you've o resolution that the disa the County the States is based on the trdisapprovaltr by ffice. issue for the subdivision is a further of the arbitrary nature of the Board's reason for rejection of this subdivision based the Board acted on October L, 1984. There is by which one can ascertain whether or not this is adequate or inadequate. There is no ' any standard found anlnrhere in the Subdivision which should be obvious by its omission from the Brief.The comments of the Planning , Evelyn FIcKay, are most pertinent. She said: nt about the road. We have that situation field County. You can take any spot in Garfield Well down in Parachute down on Morrisana Road, t all over.rr (Hearing of the Garfield County lby on road equacy was every raised by the Planning Staff nor was Planning t issue ever a basis for rejection by the sion and, in fact, the road issue was never -6- PJ.anning ission, Page 5O, Lines 2 through 4) One can only specul inadequate, that this County. rej ection criteria proposal. In co development Commissione: forth from the Transcr for denial existing landownersrr rationale f Resolution. ver Mead that there must be controlling standards and ich aie sufficient for evaluating a specific te as to what tlpe of road would be adequate or but it is clear from the Commissioner's remarks oad rras no different than other roads in the is basis is again a contrived rationale for this subdivision. It is the clear holding of question raised in Beaver Meadows and the lusion, the true basis for denial of this is found in the words of those Planning who moved and voted for its disapproval as set age 5O, Line L3, through Page 6L, Line L2, of pt of the Garfield Planning Commission. Grounds were siurply perceived rrincornpatibility to usesrr and "opposition by the surrounding The Garfield County Connrissioners provided no I its denial except as stated in the Motion and That Resolution sinply attenpted to throw up question ra sufficient particular ed here is whether the County reg:ulations have ificity to provide landowners with notice of tandards and reguirements. Beaver Meadows v. sioners, 'tO9 P.2d 928 (CoIo. 1985). rt is Iear in the present instance that the County has not irnpl ted standards which are sufficient. Under the criteria ac ually available to the County, this subdivision should and t to have been approved. for rejection hoping that one night surlivevarious ba -'7 - judicial A fair a proceedings considerati Icorrect c Street, Suiday of JuIy dernonstrat that the Garfield County Cornmissioners in subdivision were acting beyond the limits ofdenying th their jur iction in an arbitrary and capricious manner and that an ought to be entered in this case mandating the approval of the Preliminary PIat of this subdivision; RES Y SUBMITTED this 5th day of JuIy, 1988. CERTIFICATE OF HAND DELIVERY iew. Based on current law, none are adequate. comprehensive reading of the Minutes of the of the bodies considering this matter and of the materials submitted clearly certify that I hand delivered a true andof the foregoing ANSWER BRIEF to Sherry A. , 3OO, Glenwood Springs, Colorado, on this sth 1988. Caloia, Ass stant Garfield County Attorney, by leaving sameat the Ga ield County Attorney,s office at 1Q8 Eighth R. Schenk - #7788's for Plaintifftral Bank Building Eighth Street, Suite 310 Springs, CO 81601ephone: (3031 945-2447 -8-