HomeMy WebLinkAbout3.0 Litigationa
Dennis Stranger, Director
Department of Develotrxrent
Earl G. Rhodes
C,arfield County Attorney
l,larch 30, 1983
GARFIELD COUNTY
COUNTY ATTORNEY'S OFF ICE
Glenwood Springs, Colorado 81602-0640
MElv0RAl[DW
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P.O. Box 640 Phone 945-9158
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TO:
FROlvl:
DATE:
lvlii. L1 1383
&iliyrur,.
StlBlffi: Coloroso vs. Garfield County
This will confirm my conversation with you in which I indicated that the
Plaintiffs, Mr. Coloroso and Dawn Holmes, have voluntarily dismissed C,arfield
County from the above lawsuit. It appears that Plaintiffs will pursue their
claim against the Rif1e Village South Metrotrnlitan District. I want to
indicate to you that this disrnissal is without prejudice, which means there is
some possibility this matter may be refiled. However, it is my Srcsition the
matter cannot be refiled unless there are new and different allegations in what
was alleged in the previously filed Conplaint.
As I understand it, the status of this matter is that the Planning @rnnission
has tabled approval of the final pIat, pending a demonstration by the
applicants that they have a contract for a supply of water. I see the
dismissal of this action as a confirmation of the Countyrs position. However,I do believe that the applicants are entitl-ed to a decision on their final plat
and, if the applicants request this action, I think the Planning Colnnission
should either approve it or deny it, based upon the facts presented at that
tfune.
F\.rrther, it is my understarding that denial- of the final plat does not send the
applicant back to sketch plan, but simply requires him to come forward with a
new showing of facts prior to the end of the one year period. Along theselines, if you have not done so already, I think it would be worthwhile to send
!,1r. Coloroso a letter reminding him of how long he has in order to file hisfinal p1at. It is only my guess, but if the applicants cannot resolve their
problems with Rifle Village South Metrotrrclitan District, it is quite possible
that the year period will elapse without a final plat being presented. I thinkit is important that the applicants are on notice of this problem prior to the
o<piration of the one year time frame.
If you have any questions about this matter, do not hesitate to contact me.
/srxc: Board of County Corrnissioner of C,arfield @unty
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STATE OF COLORADO
Case No.
ROBERT D. COLOROSO and
DAWN M. HOLIUES
Plaintiffs,
vs.
SUMMONS
RIFLE VILLAGE SOUTH METROPOL]-
TAN DISTRICT, ALETHA ABEL, and
GARFIELD COUNTY COIUMISSIONERS
Defendants.
THE PEOPLE OF THE STATE OF COLOR.ADO
TO THE ABOVE NAMED
You are hereby summoned and required to file with the clerkof this court an answer or other response to the attached complaint.If service of the summons and complaint was made upon you withinthe state of cororado, you are required to fire your answer orother response within 20 days after such service upon you. rf ser-vice of the summons and complaint was made upon you outside of thestate of colorado, you are required to file your answer or otherresponse within 30 days after such service upon you.
If you fail to file your answer or other response to thecomplaint in writing within the applicable time period, judgment
by default may be entered against you by the court for the relief
demanded in the complaint without further notice.
The following documents are also served herewith:
Complaint and attachments for above-captioned matter.
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IN TH ISTRICT COURT
IN AND FOR THE
COUNTY OF Garfield
torney
JOHI.] W
P. O.
RifIe, CO 81650
Address of attorney
orP a No.
SAVAGE,Box L926 I301 Arabian Avenue
Dated , r/')---r''
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DISTRICT COURT, GARFIELD COUNTY, STATE OF COLORADO
Case No.
ROBERT D. COLOROSO AND
DAWN M. HOLMES,
Plaintiffs,
RIFLE VILLAGE SOUTH METROPOLITAN
GARFIELD COUNTY COMMISSIONERS.
DISTRICT, ALETHA ABEL, AND
v
The Plaintiffs, represented by John W. Savage,the following as a complaint against the Defendanti.Jr., state
FIRST CAUSE OF ACTION
1. plaintiffs are theof Iand described as follows:owners of approximately 10.01 acres
Iand is within the service boundaries of theMetropolitan District ("Metro District',) .
Rifle Village
2. In November, 1981, plaintiffs applied toapproval of the Coloroso Subdivision.Garfield County
3. Plaintiffs have compried with art requirements of Gar-County for approval of the Coloroso Subdivision.
4- The Rifre village south Metropolitan District is adury incorporated Pubric .itity e*po*erei to provide water andsanitation facil-ities to its service area.
which
South
for
f ield
5. The Irletro District has indicated its willingnessability to service the coloroso Subdivision with water andtion service sufficient to serve the 49 units applied for.
and
sani ta-
of the
not
6. Garfield CountyCol-oroso Subdivision on the
shown an adequate supply of
has unlawfully refused approval
basis that the Plaintiffs have
water.
Plaintiffs pray for a writ ofCounty Board of County Commissioners
Mandamus requiring the Garfield
to approve Plaintiff's
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Subdivis ion rvi thby Rifle Village
and sanitary
Metropoli tan
sewer services toDistrict.be providedwater
South
SECOND CAUSE OF ACTION
7. Paragraphs I to 6 of Plaintiff's FirstCause of Actionare incorporated herein.
8. On April 27, 1982,entered into an agreement withof $10,000. 00.
the board
Coloroso
of the Metro
and accepted
District
his deposit
$r,750
laying
9. Payment of the deposit was to assurerate then in effect and reimbursement ofof 1ines.
tap fees at the
developer for
I0. The Metro District repudiatedL2, L9B2r oD the basis that Coloroso hadof the deposit.
this agreement on Augustnot paid the remainder
II. Coloroso was unable to pay the remainder of the depositbecause the Garfierd county commissionersr dcting through theGarfield County Planning Department would not approve the subdivision
because they held the opinion that the Metro District did not haveadequate water supplies to service the coloroso subdivision.
12. Either because the Metro District does not have an ade-quate water supply to fulfill its commitments or because of itsfailure to adequately inform the State Engineer's office and Gar-field County of its water supplies, the I'letro District breached its
agreement with Coloroso excusing his non-payment of the balance ofthe deposit.
WHEREFORE, Plaintiffs pray for an Order reinstating the
agreement arrived at on ApriL 27, L982, whereupon Coloroso willpay the remaining balance when and if the Metro District's watersupply capabilities are approved, tap fees wiII be $I,750 per unit
and the District wil] reimburse the developer for certain extensionsof District Iines.
TIIIRD CAUSE OP ACTION
I3. Paragraphs
and paragraphs 7-L2 ofporated herein.
I-6 of Plaintiffs'
Plaintiffs' Second
Cause of Acticn
of Action are incor-
Firs t
Cause
14. Prior to their purchase of the above Cescribed property
Plaintiffs contacted Aletha AbeI, a member of the Board of Directors
of the Metro District, and were assured that water taps were avail-
able from the District.
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16. praintiffs in reriance upon said representative didpurchase the above described prop.rty.
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15. plaintiffs hadtive of the Board.
17. Defendantsthe following amounts:
tationtiffs'
o
the right to rely on this representa_
mrsrepresentation has damaged plaintiffs in
$250,000.00
61,250.00
550.00fees 10,000.00
250 000.00
Loss of value of propertyIncreased amount of tap ieesInteres t
Added expenses and attorneyPunitive damages
Total S576,800.00
18' N?!i:" of potentiar craim for damages was given onNovember 10, Lg82, purluant to co10. Rev. stat: s 24-10-10g (rg73).
19- The Metro District's breach of contract and misrepresen-were actions taken in wanton and wilrful disregard of plain_rights and feelings and entitle plaintiffs to punitive damages.
WHEREFORE, praintiffs pray for judgment against the MetroDistrict for the damages set iorirr in flaragraph l7 above and forsuch further relief as the Court may dlem proper.
FOURTH CAUSE OF ACTION
20 - The arregations set forth in praintiffs
and Third Cause of Action are incorporated herein.
First, Second,
2l- rn an effort to meet the concerns of the GarfieldCounty Commissioners, Plaintiffs have an agreement with the cityof Rifle to supply water service to the Coloroso Subdivision.
22' Upon notifying the Metro District of this fact Colorosowas informed that if plaiiti-rrs pursued this course an immediatesuit would be filed by the District against plaintiffs and the Cityof Rif1e, that the plaintiffs wourd b; denied sewer ="r"i""-uvthe District and if they were served by sewer service the tap feesrvould be the same even though Plaintifis would have alreacy paid awater tap fee to the City of Rifre and would not be using tnlDistrict's water service facilities.
I^JHEREFORE, Plaintif f s request a I,Vrit of Mandamus orderingthe Metro District to provide ser.r service to the Col-oroso sub-division in the event the city of Rifre provides water serviceand that the District's tap fees be abated to refrect use of the
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"il?",:=? & 24
81650
rney for PIa inti
30I Ara bian Avenue
P.o. Bo x L926
50RifLet c
62 5- 147 0
D D
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I issues of
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sewer service onIY'
Plalntiffs addresses:
0
w S JR.,
o 816
Robert D'
loarz u-s '
Rifle, CO
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JURY
fact.
Demand t-= n"^t"t'rrT"ot" tt="A jurY fee or
r a JurY to hear aIt="i*i;;Ld n"t"*it'h'
1d
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EXHIBIT NA'
A tract of land situaLed in the NE1/ANvt],/4 of section 20,rownship 5 south, Range 93 west, 6t,h pr incipar Merid ian,being rocated within the boundary rine cf che Rifle viliagesouth Subdivision First'Firing, u. fired in the office of theclerk and Recorder of Garfield counEy; colorador Ers Document,No. 227220, described as follows:
Beginning at the Sout,heast corner of said NE1/4Nw1/4,being an iron pipe with a brass cap, properly.marked andin place ,. thence S. 3O'50 | 30" W. 2-.40- f eet t; thenortheasterly line of a 60 foot,street; thence along thearc of a curve to the ref t '16 6. 4 6 f eet having a radiusof 212.11 feet,, the chord of which bears li. G7"59'36,'. w..'162-24 feet; thence s. 89'31 ' 19" w. 4.l3.9.l feet arongthe northerly line of said 60 foob street; thbnceN. 00 " 3 2'20" W. 65 0.0 0 f eet, t,o the southerly l ine ofBlock I of said subdivision; Ehence N. 99"31 r19,r E.565.00 feeE along the southerly line of said subdivisionto a point on the east,er).y rine of said subcivision;thence s. 00"32120" E. 710 feet arong the easterry rineof said subdivision to the point'of beginning.
Arso r,ots 22 thru 31, inclusive, in Block B of the Rif reVillage South Subdivision First Filing.
COUNTY OP GARFIELD
STATE OF COLORADO
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P.O. Box 640
GARFIELD COUNTY
COUNTY ATTORNEY'S OFFICE
Glenwood Springs, Colorado 81602-0640
MET\,IORANUX4
Phone 945-9158
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JAff J Z igg.t
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u*{ry"ieir:
Lu. ,n ,,,,oorilI0: Dennis Stranger, Director
Deprtrent of Developnent
FRCM: EarI G. Rhodes
Garfield County Attorney
DAIE:
STIBJECT:
January 14, 1983
Sunncns/Oomplaint Robert Coloroso
As I discussed with you on the 5hone, erclosed please find a copy of the
Sununcns and Complaint in the lawsuit Robert D. Coloroso and Dawn t4. Itclres
vs. Rifle Village South }4etropolitan District, Aletha Abel and C,arfield
County Conrnissioners. f intend to discuss this matter with the Board on
I'tonday, January L7, 1983, and recorunend that a l,krtion to Disniss be filed
fuunediately.
this will also confirm my request of you of a statenent as to the present
status of l,lr. Coloroso's application and copies of the Planning Conmission
Ivlinutes that relate to his application.
Erclosure
/sr
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IN THE DISTRICT COURT
IN AND FOR THE
COUNTY OF Garfield
STATE OF COLORADO
Case No.
ROBERT D. COLOROSO ANd
DAWN M. HOLMES
Plaintiffs,
vs.
SUI,IMONS
RIFLE VILLAGE SOUTH }IETROPOLI-
TAN DISTRICT, ALETHA ABEL, ANd
GARFIELD COUNTY COI'UTSSIONERS
Defendants.
THE PEOPLE OF THE STATE OF COLOR.ADO
TO THE ABOVE NAMED
You are hereby summoned and required to file with the clerk
of this court an answer or other response to the attached complaint'
If service of the summons and complaint was made uPon you within
the State of Colorado, you are required to file your answer or
other response within ZO days after such service uPon You: If s9r-
vice of the summons and complaint was made upon you outside of the
State of Colorado, you .t" i"qtired to file your answer or other
response within 30 days after such service uPon you'
If you fail to file your answer or other resPonse to the
complaint -in writing within the applicable time period, judgment
by befault may be entereci against-you by the court for the relief
dimanded in the complaint without further notice'
The following documents are also served herewith:
Complaint and attachments for above-captioned matter'
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JOHI.I W
P- O-
RifIe, CO 8I650
Address of a t.torney
torney orP a l-f No-
SAVAGE,
Box L92 1301 Arabian Avenue6-
Da ted ,r/)---
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DrsrRrcr couRT, GARFTELD COUNTY, STATE OF COLORADO
Case No.
ROBERT D. COLOROSO AND
DAWN M. HOLMES,
Plaintiffs,
v.
RIFLE VILLAGE SOUTH METROPOLITAN DISTRICT, ALETHA ABEL, AND
GARFIELD COUNTY COMI,IISSIONERS.
The Plaintiffs, rePresented by John W. Savage, Jx., state
the following as a Complaint against the Defendants.
FIRST CAUSE OF ACTION
1. plaintiffs are the owners of approximately 10.0I acres
of land described as follows:
land is within the service boundaries of the Rifle ViIIage
Metropolitan District ("Metro District") .
2. In November, 1981, Plaintiffs applied to Garfield County
for approval of the Coloroso Subdivision-
3. plaintiffs have complied with all requirements of Gar-
field County for approval of the Coloroso Subdivision.
l.'
which
South
4. The RifIe village south Metropolitan District is
duly incorporated PubIic entity empowered to provide water
sanitation facilities to its service area-
5. The l.letro District has indicated its willingness
ability to service the Coloroso Subdivision with water and
tion service sufficient to serve the 49 units applied for'
6. Garfield County has unlawfully refused approval
Coloroso Subdivision on the basis that the Plaintiffs have
shown an adequate supply of water.
Plaintiffs pray
County Board of Count-y
and
sani ta-
Mandamus requiring the Garfield
to approve Plaintiff's
a
and
of the
noL
for a writ of
Commissioners
o
Subdivision with water and sanitaryby Rifle Village South Metropolitan
o
are . 7. paragraphs I torncorporated herein.
sewer servicesDistrict.to be provided
SECOND CAUSE OF ACrION
6of Plaintiff.s First Cause of Action
8. On Apri1 27, Lgg2,entered into an agreement withof $10,000.00.
the board ofColoroso and
the Metro
accepted
District
his deposit
9' payment of the deposit was to assure tap fees at theil;fi! :;tir::aa--i"-"ri.ft".,,a r.i,nu,."Iment or deveroper ror
10' The Metro DisLrict repudiated this agreement on August.nt:t:;o:lril' basis-'ilt-;"1;;;;;-;;; ;:. paid the remainder
L2,
of
11' col0roso was unabre !o p.y the remainder of the depositbecause the Garfierd county commi=.ioi.r", acting through theGarfierd County.elanni"g-'oLp..t*.r',t-roJra not .p[.o,r" the subdivisionbecause rhev^lalo tr,.-"ii,i6r, rhar-.nJ-r..ro oiitricr did nor haveadequate water suppries'to service th; Cororoso subdivision.' L2- Either because the Metro District does not have an ade_quate water iupply ro t"iiirr it;-;;r*itme.,ts or because of itsfairure to adeqult"it i;;;r* the stare Engineer,s office and Gar_field County of its *"t"i-.rpplies.-tf,u lrletro District breached itsifl:T:;:.tr[]tn coloroso """"'.i"s-;i. "rJ'-o.rment or rhe barance or
WHEREFORE, plainttt!:,p:3y
!:l an order reinsrating theagreement arrived at on Aprir'27', igaz]'whereupon cororoso wirrpay the remaining balance'when ana-ii-if1. Metro District,s watersupplv capabiliii.:_3.. approved,. r;; iL". wilr be sr,75o per unir:ioril:,?::Ti::=It, i"iilt,.,u rhe d","roper ioi-""it.i,, exrensions
I3. paragraphs
anci paragraphs I _tZ' otporated herein.
TIIIRD CAUSE OF ACTION
1-6 of plaintiffs,
Plainti ffs ' Second
Cause of Actionof Action are incor_
Firs t
Cause
l4 ' prior to their purchase of the above described propertyPraintiffs contacted Aletha Abel, a *unbur of the Board of Directorsll.ln;,I;.1;"r;::i:::, ;;;'were assured thar water_;;p= were avair_
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16. plaintiffs in reliance upon said representative did
purchase the above described property.
15.
tive of the
I7. Defendants
the following amounts:
IB. Notice
November I0, L982,
tationtiffs'
Loss of value of property
Increased amount of tap fees
Interest
Added expenses and attorney
Punitive damages
s25o,ooo.0o
61,250.00
550.00
fees I0 r 000.00
250,000.00
o o
Plaintiffs had the right to rely on this representa-
Board.
misrepresentation has damaged Plaintiffs in
TotaI S576, 800 - 00
of potential claim for damages was-given on
pur-suant to CoIo. Rev. Stat- S 24-I0-109 (1973) '
WHEREFORE, Plaintiffs PraY for
District for the damages set forth in
such further relief as the Court may
19. The Metro District's breach of contract and misrePresen-
were actions taken in wanton and willful disregard of Plain-
rights and feelings and entitle Plaintiffs to punitive damages-
judgmenL against the Metro
paragraph L7 above and for
deem proper.
FOURTH CAUSE OF ACTION
20. The allegations set forth in Plaintiffs First, second,
and Third cause of Action are incorporated herein.
2L. In an ef fort to rneet the concerns of the Garf ield
County C"rn i==ioners, Plaintiffs have an agreement with the City
of Rifle to supply water service to the coloroso Subdivision'
22. Upon notifying the Metro District of this fact coloroso
was informed that if Plaintiffs pursued this course an immediate
suit would be filed by the District against Plaintiffs and the City
of RifIe, that the plaintiffs would b; denied sewer service by
the District and if they were served by sewer service the tap fees
rvould be the same even though Plaintifts would have already paid a
water tap fee to the City oi Rifle and would not be using the
District's water service facilities-
wHEREFORE, Plaintiffs request a i'Jrit of I'landamus ordering
the Metro District to provide sewer service to the Coloroso Sub-
division in the event the City of RifIe provides water service
and that Lhe District's tap fles be abatld to reflect use of the
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sewer service only.
P1aint,if f s addresses:
Robert D. Coloroso
30412 U.S. Hwys. 6 & 24
Rif1e, CO 81550
Dawn tl. Holmes
689 Mesa Avenue
Rifle, CO 81650
S , JR.
ney for Plainti30I Arabian AvenueP. O. Box L926Rif1e, CO 8L650
625-L470
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JUR,Y DEI"IAND
Demand is hereby made for a Jury to hear all issues of
fact. A jury fee of $25.00 is submitted herewith.
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EXHIBIT 'AN
A t,racE of land sicuaLed in t,he NEI/4Nlf1/4 of Section 20,
Tovrn'ship 5 SouEh, Range 93 West,, 6th Principal Meridian,
being located wiehin t,he boundary line cf the Rifle Village
SouEh Subdivision FirsE'Filing, as filed in the office of EheClerk and Recorder of Garfield CounEy, Colorado, as DocumentNo. 227220, described as follois:
Beginning at, the Sout,heast corner of said NEt/4NW'l/4,being an iron pipe with a brass cap, properly marked andin place; Ehence S. 30'50'30" W. 2.40 feet to Ehe
norEheasEerly line of a 60 foot . street; thence along t,hearc of a curve t,o the lef t 166.45 f eet, having a radiusof 212.11 feet, t.he chord of which bears l.l. 57'59'36'. W;
162.24 f eet,; t,hence S. 89'31 I 1 9" W. 4l 3. 91 f eeE alongthe northerly Iine of said 50 fooE street; ChlnceN. 00'32'20" W. 650.00 feet to Ehe southerly line ofBlock B of said subdivision; t,hence N. 89'31'19" E.
565.00 feet along the southerly line of said subdivision
to a poiat on the easterly Iine of said subCivision;
thence S. 00'32'20" E. 710. feet elong the east,erly Iineof said subdivision to the point'of beginning.
Also Lot,s 22 Ehru 3 I , inclusive, in Block B of t,he Rif Ie
Vi lIage South Subdivision First FiIing.
COUNTY OF GARFIELD
STATE OF COLORADO
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P.O. Box 640
GARFIELD COUNTY
COUNTY ATTORNEY'S OFFICE
Glenwood Springs, Colorado 8 I 602'0640
Tt[EII,IORANDT]M
Phone 945-9158
TO:
FROM:
Board of County Corrnissioners
DATE:
SUBJECT:
EarI G. Rhodes
C,arf ield County AttorneY
March 3, 1983
Iawsuit - Coloroso SuMivision
In regards to the above nntter, please find copies of the following:
1. Letter to attorney for Mr. Coloroso as to Countyrs position
for a frivolous and groundless lawsuit,;
Copy of Arcndd Motion to Dismiss, and Motion for Sununary
Judgment; and
3. Brief in support thereof.
I have rnade every effort to talk with John Savage and convince him that the
lawsuit is without merit. Although he stated on the telephone with me on
February 23, 1983, that he agreed with me, his c1ienL refused to disrniss the
matter, and I was forced to draft the enclosed Brief and file it with the
Court. I will keep you advised of the progress of this matter and any Court
decision.
/sr
Enclosures
)<c: Dennis Stranger, Director, Deparhrent of Developnent
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GARFIELD COUNTY
COUNTY ATTOR NEY'S OFFICE
P.O. Box 640 Glenwood Springs, Colorado 8 1602-0640 Phone 945-9158
March I, I9B3
.bhn W. Savage, Jr., Esquire
P. O. bx L926Rifle, CO 81650
RE: Civil Action !Ic. 83CVl0
Dear .Iohn:
Ttre g:rpse of this letter is to confirm our teleFhone conversations of
February 23, 1983. Ihese con\rersations are a follow-up of my letter to you of
February 17, 1983, in regards to the rroluntary dignissal of C'arfield 6unQr
from the abo\reraptioned lawsuit. In our first conversation of February 23,
1983, you stated ttrat it was your recorrrerdaEion to your client that Garfield
County be dropped as a Deferdant in ttre above-captioned action, but that you
needed to obtain your clientrs agrproval. In the secord conversation, you
irdicated that your client, tttr. Colososo, wants ttre matter to Srroceed, ard will
not agree to a voluntary disnissal of C,arfield County. At that point, I asked
you what basis there was in law for C,arfield County to be Deferdant in this
action, to wtrich point you res[Drdd, ttre only basis was what was in the
complaint, and that you rnay want to anerd the crcmplaint. I irdicated to you
that I did not think an aner&nent rtould solve the basic problem of the rnatter,
which is a failure to state a claim for relief as to which relief can be
granted. You did not disagree. [Icr.rever, you irdicated that the rnatter should
go forward, and that I should file my brief in supporE of my ltction to Disniss.
In regards to this rnatter, I want to irdicate to you several thirgs. Ey nV
Ietters to you of January 24, L983 ard February L7, 1983, I have made e'.2ery
effort to cooperate with you so that you can properly evaluate this case. I
have supplied you with inforrnation as to the &unty Planning process, ard to my
knowledge, have not denied you aocess to anything you thought relevant to your
inquiry. ltrerefore, I consider you have had an appropriate opportunity to
evaluate this matter, ard as an attorney, reach an inforned opinion as to the
nrerits of your client's position.
I want to indicate to you, as an attorneyr the responsibiliEy for proceeding on
a groundless rnatter, which responsiblity is an addition to that of your
clientrs. RuIe 11 of Colorado Rules of Civil Procedure states that:
"lte signature of an attorney constitutes a certificate by him
Lhat he has read tlre pleading; that to the best of his knowledge,
infornntion ard belief, there is good grourd to support it; ardthat it is not interposed for delay...for a wiIIfuI violation of
this RrIe, an attorney may be subjected to appropriate prnishnrent,
as in c.ontempt cases, and the Court may also direct him to pay to
the other party, reasonable attorney's fees and actual costs
oceasioned by said violation..." (emphasis added)
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John W. Savage, Jt., Esguire
l,larch L, 1983
PAGE TWO
lto the extent a Court determines that the County's position is correct thatthere is no basis for ircluding C;arfield 6unty in the above cause of action, Iinterpret the above language to expose you as to an ethical irqr:iry as to ntryC'arfield 6unty was ircluded in the above matter, ard ptentially iequire youto Fy the &untyrs attorneyrs fees for defense of this action. Itre question
here is whether your client's position, and your assertion of it, is outsidethe broad range of the exercise of rights aeorded Arerican citizens in our
@urts.
As I irdicated to you in my January 24, L983 letter, Colorado Statutes noryprovide for a cause of action against parties wtro file frivolous or grourdlessactions. rtris is found at section 13-17-Iof, c.R.s. t'1-3, as anended.Although, again, this position wiIL have to be rrerified by a Courtrs grantingof a !,rrtion to Disrniss, r want to prt you on notice that, if given theopprtuniQr, c,arfield 6unty wirl grrsue this renedy against you ard yourclient.
I have previously offered to amicably resolve this rnatter or assist you indefining your client's position. If you har.e any further questions about thismatter, I hope you will contact ne.
Very truly yours,
lrfZa
Earl G. Rhodes
Garfield. 6unty Attorney
EG(,/sr
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DISIRIST CqJFtf, @JNry oF C"ARFIELD, STAI.E OE COLORADO
Case tlo. 83CVt0
AT"IENDED !4OTIC[I 10 DISIVTIS.S, AtiID IN TI{E ALIERTiIATIVE MOTICN FAR SLMITARY JUmMEM
RCBERI D. @IXRGO ard DA^JN M. HCIMES, plaintiffs,
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vs.
RIIEE \IILI,AGE SCtmf MHROPO[,IIAN DISIRICI, ALHIIfi ABE, ard GARFIED q IIy
CITITUSSICNERS, Deferdants.
-Deferdant, Garfield 6qnty @nunissiorErs (trcarfield 6unty"), ap6earirgspecialty for the Brrpose of this Motion only by the urdersigrGd'itt6ineys,-rpves tttis 6urt, Sursuant to C.R.C.P. 12(b) to disniss the cunplaint andaction therein, ard as grourds tjprefore, states as forloqls3
FIR^ST DEEE}ISE TO ALL CLAII\,IS FER.RELIEF
FETJRII{ DEEEDISE IO ALL CTATI\.IS FOR.RELITF
The Plaintiffsr complaint and all claims for relief contained therein,fail to state a cause of action upon wtrich relief can be granted, andtherefore, their c.omplaint should be disnissed.
'rItre Plaintiffs have failed to join all irdispnsible Snrties, as is
!99uired by C.R.C.P. Rtle 19, and ttrerefore, Plai;Eiffs, c6mplaint should bedisnissed.
SEOT{D DEEEIiEE 10 ALL CTAII\,IS EfR RELIEF
the Plaintiffs harre failed to exhaust their a&rdnistratirre renedies, ardtherefore, this lawsuit is prernature and should be disnissed.
THIRD DEEEt{SE IO ALL CIAII,IS FUR RET,IEE'
The Plaintiffs have failed to sue the poper entity, as is reqtrired inSection 30-11-105, c.R.s. '73, as amerded, and-thereror!, plaintifisr complaintas to C,arfield Coungr should be disnissed.
FIEIII DEFEI.ISE TO ALL CtATIivIS ECIR RELTEF
Ihe Plaintiffs harre not pled that any rotice vras served upon Deferdant,Garfield County Conmissioners, as requirea Uy Section 24-lo-loi, C.R.S. ,73, asalrerded. Ihe service of said notice ard the pleading of the sane is apre-cordition to this 6urt's jurisdiction, ard therefore, plaintiffs'
complaint. should be dismissed.
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hIHEREFARE, Deferdant, C,arfie1d County, npves that this Motion should betreated as one for surmary judgnrent and oisposed of as provided in Rlle 56, andall parties should be given reasonable opprtunity to present all nraterial rnadepertinent to such nrotion by erle 56; ard
FIJRIHER, that Plaintiffs' complaint, as to Garfield &unty, be dismissedard trursuant to Section I3-17-10I, C.R.S. r73, as anrerdedr that this Court
assess attorneyrs fees ard costs against PlainEiffs as a result of theDeferdant, C,arfield 6*ty, being naned herein.
Respectfully sutrnitted :
IGarfield 6unty Attorney
Attorney for Deferdant
P. O. Box 640
Glerntood Springs, @ 81502
lblephonez 303/945-9158
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DISIRTCT GJRT, G.'NIY OE C*RFIELD, STAIE OF OTNRAM
Case ti*r. B3C\lt0
BRIEI CF CJ\RFIEI,D GJNIY G!4{ISSIONMS IN SUPPORf OF ITS M TICN 10 DISTI{ISS
RCBERf D. @I0RGO ard DIWN M. IXCLMES, Plaintiffs,
\IS.
I1.. I
Rlrlg VILIAGE"SCIIB MEISOPOU(B,N DISIRICI, AliElIn'ABEL1- ard C'ARFIEID'Gr]}III '
CCTMISSICNERST Deferrlants. :
ccltEs !fX{ the Deferdant, Garfield Ounty @rmrissiorersr h!7 ard through
iEs 6unsel of record, ard grrsuant to Rrle 121, Olorado &rles of Clvil
prooedrrre, Section 1-15r hereblz files this ltenorardun Brief in $rport of its
I{ction to Digtriss as follows:
I. SDAf,EMENT OF FACTS
ptaintiffs have filed an trrcaptiored pleadirg, wtrich contains four
causes of actions. Alttough Plaintiffs fail to identify the s.rbject foFrtYr
the first cause of action relates to Plaintiffsr inrrolverent in the Garfield
6trnty lard use Focess for the prpose of subdivision atr4xonal. Etcto ttris
cause of action, Plaintiffs seek a Writ of uarfiams requirirg Crarfield Ounttz
to ag4xoge plaintlffsr subdivision wittr water ard sanitary seuer senrices to be
lrovided btz Eferdant, Rifle vilJ.age south Metropolitan Districtr (hereinafter
T'tetro Districtn).
plaintiffsr otler causes of action relate to other Deferdant's, ard will
rpt be s.uunarized here. Plaintiffsr cunSilaint, lacks sufficient detail ard
aerraclz as to the alteged acts of Deferdant, Garfield 6unty, in order for
ttris cburt to urderstard nhat cause of action the Plaintiffs might hanre.
o
Ttrerefore, the following descripEion is set out in order to assist the 6urt in
its determination.
Garfield &unty, 6lorado, is a legal ard political subdivision of the
State of 6lorado, wtrich exists for the efficient'nnnagerEnt of State affairs
on a local level. Board of Countv Co,m,nissiorBrs vs. lgygr 172 Olo. L?l, 47O
P.T'191-l}?3}.'IIT.:"5:'-.l:.'jI-:-1'H1*;Yr:...:**1*::;-;1.-...,
coplete lrcal gorrerznent, of its own.o.it is clothed wittr certain exggqtlve
peEEST hrt these are only a.rctr as are speciaAly granted to.tt'b1r the State."..
(61orado tanr of Citles ard Oountiesr .bhn C. Banksl Lg7g, Denrrer, 6lorado)
ttrrstant to 3O-It-107, qR.S. 1973, as anerded, a Board of OrrnQr hmissiorers.
is authortzed to d, on behalE of the 6unty. Nsor in arcordarpe with
30-28-1037 C.R.S. 1973, as anerded, the Board of 6unty Gnmissiorers has
appointed a Planning Gnnission, r+trich has certain authoritlz, as described
belon. Ebllorirg tte pssage of Senate Bill 35 in L972, (30-28-1331 €t. s€Q.7
C.R.S. '73, as anarded), C,arfiel-d Ountsy aalopted subdivision ontrols wtrictr are
rptr oodified as the Garfield 6unty &rbdivision Egulations of-1978r as'
attErded.
llhe gresent Garfleld 6tnty sr:laivision Erocess orintains ttrree step for
final ag4rorral. First, an applicant must, receive sketch plan approval.' Xhis '.
ls approval in corcept wtrich considers the ap5rogriateness of the prcel in
question for subdlvision EuEtDses ard the conptibilitlz of the prognsed.uses "
wittr the strrrounding uses. Erollowing this cores preLirnirnr,y plat a54xorral,
which is approrral of detailed ergireerirg r"ork, p:blic improrrerents brd,lot
design. Finally, there is final plat approval; after which the final BIat is
fil€d with the Garfield &unty Clerk ard recorder so that irdividual prcels '
nr4z be sold to the grblic. llhere is rp sr.rch ttring as conditional.final plat
al4roval, sirce the only prrpose of firnl plat approval is g.iUfic recordation.
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In their first cause of action, Plaintiffs play for a Writ of llardamus
reqtriring the "Garfield 6unQr Board of 6unty @rmissiorers to approve
plaintiffs, subdivision, wittr water ard sanitary services to be provided by
Rif1e Village Souttr llatroplitan District. " Itris prayer for relief is
upecessary, ard confirsirg. Marked Edtibit 'A'r, ard attached hetreto, is the
Affidavit, of t{iLdred Nsdorfe.c;arfield 6unEy clerk ard Eoorr:lera as;t4
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Garfleld 6r:nty Esolution lbs.,82:48,an1,82-202. B!, these Resolutions, ' :
platnttffs obtatrEd sketctr ard peltnlnary plan aSrynoval frorn Garf,teld OrrnE'.'
Ordltion llr. I of Resolution !{o. 82-48 (the sketch plan apgoval) states that
rtha! the questlons on water ard serrer serrrice be resolrred at Ereliminary
Flat.... Resolutlon !{o. 82-202, t}e prelirninarfr PIat Resolutlonr Orrlitlon No. I
provides:
"rhe derrelopr Eurstre trater br ttre citrr of Rifre or the Rifle
Village Souih Gtroptitan oistrict, ard that Division of Water
Resources aPEro\re tiat source prior to submittal of final PIat' r'
Becaue of the existerce of the servioe area of the lletro.District, it was
agreed that the Metno Dlstricts rpuld povide aestr service. Ihe on1y. utltitft
isgre was water, wtlich C;arfield Ounty said could be provided the.letro
Diski;t, if, in fact, the plaintiffs could obtain those services.
Alternately, if the plaintiffs could obtain water from the Citlz of Riflen this '
rtould also neet witi the Otrntyts a64roval.
On Septerrber 8, 1982r one of the PtaintiffsT.l'8. Ofo-"o, atr4=ared
before the Garfield 6unQr Planning Gnrnission. llarked as Ectribit, 'Br'. ard
attached hereto, is the Affidavit of Barbara. Iorahr. Secretary of the C'arfield
6unty plan11irg OomrissionT 'ds to the Minutes of thats reetirg; qr the above
date, the ptanntng Gmission rptcd to table the rnatter.wittr the specific'
ffurfing that .the developr has rpt provided eviderce of a legal water. sttpply
3
l,
I
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or the required approval from Ehe Division of Water &sources.t On September
2O, L982, this matter was brought before Ehe C'arfield &unty Oormissioners, at
which tirre the Garfield Ounly Grunissioners confinred the action of the
plannirg Oonrnission. See attached E&ibit 'A', the Affidavit of !{ildred
Alsdorf, C'arfield 6unty Clerk ard Reoorder.
Seoord, the 6unty has rpt denied Ptaintiffsr aptrronal of .their.final PIat, hlt
rather has tabl€d tlre rction1 prdirg the Plalntiffs obtalning a ontrct for
water nith elther the citlz of Rifle or the lGtro District.
A few qprds rEed to be said about the Ountlzrs obligation.urder Olorado
Statutes ard its orvn Subdivision kgrulations for an assurarEe of a sugply of
water prior to final plat approyal. Section 38-28-133(6), C.R.S. r73r' as
anrerrJed, states as follows:
'!tc Board of ountlz @nmissioners shall apporie arryz geliminarlz
plan or a final plat for arryr subdivision located wittrin the
6,rnty, unl-ess tie sr:fafvider has govided the following rnaterials
as 5p;t of the prelirninary plan or firnl plat subdivision submission:
(a) EviderEe to establish tttat definite Srovision
has been made for a water su54[y that, ls sufficient'
in terrns of quantity, deperdability, ard qtralitl'r to
grovide an aP6ropriate supply of water for the type
of srbdivision Sroposed;'
At Section 30-28-136, C.R.S . 173. as anerded, the statute states:
(1) "Upon receipE of a complete .preliminary plan submission,
the goard of 6unty GrmissiorEf,ST or its authorized relresentatirrer.
shall distrihrte copies of prints of the Flan'as follons... (h) (f)
likely to oocrrr to decreed water rights by virtue of diversion of
water neessary or 6roposed to be usea rc supply the trrotrnsed -
subdivision, aird daqur..y of proposed water supply to neet require-
rents of the proposed subdivision.' ' ' t' l
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In accordarce with the State directive in Section 30-28-133, C.R.S. 1973, as
arrerded, C,arfield 6unty has adopted subdivision regulations. Sect,ion 5.4
deals with r*ater supply ard states:
\{ater supgly shall be available or nrade available to all
lots plataed:..where a &rrrnrnity water sysEem is proposed,
the arraifability of the water Eources 6haIL be explaired
ard certified by an engireer registered in tlre state of
olorado ard an attorney, lf rcoessarlzr to sqbstantiate
wat€r rights. r'
At Sectlon 4.02.06, the applicant rust povide a prelirninarf plan wittr the
foilowing infornation:
i. \{ater an64ily. If a central nater supply-ard distrihrtion' system is to-be-trrovided, a genglal descriptlon of the systo
stlall be shotm. (U Source-eviderEe that a water suply ttnt
ls sufficlent in de;ns of quagtlr, qr:antiQr ard deendablfjEy
wiIL be arrailable to insure an dequate supply of nater for
the ty6e of subdivision lroposed-..'
At, Section 4.03.02r inforrnation nust be filed with the f,ina1 plat whictt states:
rIhaC all sugplenental inforrnation furnished with the
preliminary iriat is valid for the final plat, (at Section
'A) ."
Ihus, GarfieLd 6unty tras enacted regrulations in cm$iarce rrittr state lanre
e,trich'require an appllcant for a subdivision to deronstrate the availabilitlz
ard adequacy.lot " water s'pply for the popsed subdivision.
II. PLNItTIIE TS @,[Pt AINI A!{D EACII AND EI/ERY CLNIT{ ITTIEREIN
EAIT,s A CAIISE AS G'RT
RELIE'
Ttre grarraren of Plaintiffst first cause of action is that:
'Ihe Garfield 6unQz Board of 6unty onmissioners to apErg\'e
plaintiffsr sr.rbdiviiion wittr water ard sanitary sesEr services
to be poo"ia"a ry niff. Village Souttr !€tropolitan District"
tris makes rx) sense. Garfield @trnQz has atready aPprOved the Oloroso
Subdivision to the extent it can, ard until ttre Plaintiffs resolrre tteir
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obvious disgrte with the lbtro District, Carfield 6unty cannot approve ttreir
final plat.
Ib the extent ttrat ttris type of prelirninary "atrryovaln is what the
PlainEiffs desire, t}ey alreadlr have it,, ard therefore, there is no case or
controrrersy before this 6urt,. fhe recessiQr of a case or.cpntrot'ersy for a
justiciable lssue tras been.establlshed btrr the United States Suprene 6urti
where its preedent tas been folloqrcd by the Olorado Su5rre 6urE.. (Sge
lfashville C e St. L. Railtan vs. Walt-ace, 288 U.S. 249. 77 L. E. 730, 53 S..
Ct. 345 (1933), aril see tbron vs. Denrrerr 4I1 P.A 314 (1966).
AlEernatcly, tlle Plaintiffs rnay be askirg for a Writ of !{ardarus to
order the Board to approve t}re final plat with mter service frcrn the,
Deferdantr tGtro Distrlct. If this be the cls€1 there are ntrlErous objecEions
as to wtryz Plaintiffs do not have the right, to such a rqredlz. R.rIe 106,
C.R.C.P., sets forttr nhat reredial action the @urt can order. RrIe 106(a) (2)
is connonly referred to as a writ of nrandanms, wtrich ocists for the lurgnse of
orderirg an inferior tsrihlral to gerform an act wtrich the law reguires or to
not, prform sfiEttling as to wtrich it is prohibited fron doirg by law. 'It also
is available to require an inferior tribunal to alloqr an elected official to
trerform.hls statutory respnsi^bilities. Plaintiffs harrc not sotrght relief to
require Garfield 6unty to rnake a decision for apporral or denial, and the.
other pssibility is rot applicable. ttrerefoE€r d writ of rnardanr.rs is rpt'.
aptrxotrxiate.
ft is also trnssible that Plaintiffs nay !s:rludirg to sore right urder.
Rrle !.06, SecEion(a) (41, wtrictr is dersninated a certiorari gooeeding, and
wtrich has to do wittr tJre revien of decisions of inferior trihrnals. I,f' this is
the basis for Plaintiffst Fayer for relief, then iE nu.rst, fail for.several
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reasons. Itre first defect is ttrat. Ehis action must be brought within thirty
(30) days of the date of the decision complained of. See Rule I06(b), ard
Civil Service Conmission vs.DisErict Court 186 61o. 308, 527 P.2d 531
(Lg74l. Sirce the rction complained of oocured in Septenrbet, L982, the filing
of Plaintiffsr conplaint, is untfutaly.
E\ren if those problens do rpt bar the Plaintiffsr rction, 'ttris matter ls
rnt pstured for a eEtlorari review. Urder RrIe 106(a) (4) r. the trrrpse of tte
judictal lnqriry ls to detetmtre whether an Lnferior tritxmal elceeded its
jurtsdiction or ahrsed its discretion. See tbllv Derrelogtent, Irc. vs. @
of Ountv &rmissioners, 140 61o. 95. 342 P.U LO32 (1959). Gtly after that
determirntion is made, ouLd a partlz ask that an lnferior triburnl be ordered
to do a specific act. In the instant case, the Plaintiffsl request is
gxernature sirce no decision has been nrade, ard they have not asked for review
as to the nerits of that decision. Obviously, this rnatter is trrernature for
certiorari review by this 6urt,.
Several other procedural defects grevent ttris @urt from grantirg t]te
relief requestcd. R,rle 3, C.R.C.P., states that a civil action is cunrerned by
o(1) bf filing a conplaint with the Ouit...'. In the instant cES€, ,":
plaintiffsr pleadirg ontainsi ro statenent as to nhat it is. Sirce it does rpt
say that iC is a 'conplaint", it should be disnissed. Secorrlly, Plaintiffs
harre failed to foIlow the prooedure set fort]r in the Garfield 6unty
Subdivision Regulations, for final plat approval. Arly after an application is'
cunplete, is Garfield 6unty required to rnake a decision. Iherefore,
plaintiffs should not be allor,red to avail themselrres of an eqr-ritable rorcd1z
r+hen the plaintiffs haye a legal right to har;e a decision nrade upon ctmpletion'
of a propr application for final plat-
7
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Although Plaintiffs do not specify what legal basis there is for the
prayer for relief in the first cause of action, Deferdants, Garfield County,
harre attempted to go through the pssible legal bases for ttre Plaintiffsr
position. Urder none of these rtould the 6urt harre the authority Eo order that
the Deferdant,, Garfield 6unty, approve a final plat rvhen the issue of water
service is rpt resolved. Ihat ttris psition is manife;LtV oorrect, is obvious
frqn the balarre of Plaintiffsr curplaint agalnst the Deferdant, l'Etro
District, h,tlictr tndicates there ls rp agreenent as to the Srovislon of water
servie. Given ttris a&nitted statc of facts, it rrould be a gross violation of
the statutory requiretents for Garfield Otrnty to atr4rorre a final Plat, or for
ttris 6urt to entertain such a request.
rII. TIIME IS NO FINAL Affi[W ACTTON AT{D TTIERMORE
ITIIS GTI{PIATTiI'I STrcULD BE DIST{ISSED
Ihe above facts derronstrate that on Septenber 8, 1982r the Garfield
6unty Plannirg Cbnmission tabled consideration on the Plaintiffs' final PIat
snhnission until srch tine as the Plaintiffs conplied with requirerents of
Ordition lb. I of the prelr.ryinary PIan apSroval (Esolution tib. 82-2021.
AIso, on SepEerber 20, Lg82, the Board affirned the decision of the Plarulirg
Csnnission to table'the matter. [rerefore, there is rp decision which is
appable to the District 6urt.
6lorado tan recognizes that, rornally, non-final agetEy action'is not
subject, to jr:dicial review. (See Section 24-4-L06(2), C.R.S. 1973, as
anerded). In the Stat€ Board of @snotoloqy vs.District @urt in ard for the
CiW arrl Oounw of Denver, @Iorado, I87 61o. 175, 530 P.X L278, it is said:
'l{crrnally, jtrdicial review of a&ninistratirie action is. arrailabL only after o<traustion of a&ninistratirre renedies
ard final agenq/ action. (P. f280)
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Ihis is so sirce "the District Oourt does not harre jurisdiction to rest'rain an
a&ninistrative agerEy from performing its statutory furctions. (P. 1279) "
Similarlly, it is said in Colorado State Board of l.tedical E<amirrers,Insuiry
Panel vs. District Court of the Tttr Judicial District ,in the CounEy of
l,bntrose Oolorado 191 61o. 158, 551 P.X L94, that:
,orr rule hbre, suEportd br the rationa.Ie of our rulirgs
to the effect itat-tte jtraiciary strotrld rpE interfere with
an a&ninistratirre tparfrlg until the adninistrative agerEy
has reached a final oorpltrsion (Page 196)."
In the lnstant cds€r ordition tib. 8 of Resolution ti*r. 82-202 apFars to
be in ccnrplete cunpliarrce nittr state law of C;arfield 6unty Sr-rbdivision
Regulations, ard is a reasonable burden upn applicantrzPlaintlffs. In order to
grant ttre prayed for relief of the Plaintiffs, the 6urt' hould have to assulE
ttre a&ninistratirrc respnsibility of Garfield 6unQz, wtrich is sonettrirg it is
not authorized Eo do. In ttris instarce, particularly, it seems appropriate
ttlat the District Oourt should not interfere wittr the administrative [f,ocess
until srrch tirE as ttre 6unty has made a final decision as to the rnatter'
Alternately, the Plaintiffsr conplaint should be reframed to challerge either
ttre reasonableress of Ordition titr. 8 of ksolut'ion !{o' 82-202' ot a
requirerrent that the Planning @nmission rrake a decision.
In the instant caser naming the C;arfield 6unty onmissioners is
particallarly inappropriate since, bY its oml regplation, ttre Board canrpt hear
the matter until after the Planning onmission has nade its reconnendation'
section 3.0g, as anended, of the Garfield county.subdivision Begulations,
state:
,Itre Board, within fourteen (14) days after action by the
Plannirg onmission, unless an extension is deered necessary
t U= 6oara in order to accomplish its review, shall schedutre
iprblic hearirg upon the final p1at..."
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Ttrus, the Board of 6unty bnmissioners is por^erless to act without a Plannirg
Conmission recomrEndation. It is respectfully sutrnitted that the inability of
the Plaintiffs to receive approval as to their final plat submittal, has
everything to do wiEh Plaintiffsr c-omplaint against Defendant. l€Ero District,
ard/or the City of Rifle, ard nottring, nhatsoet€r, to do with C,arfield 6unQz.
II/. Pr,An{TIFEE IIAVE FAfLED.IO .IOIN ALL INDISPE!{SIBLE
PARTIES' em rssED
Plaintiffsr pleadirg alleges that Deferdant, Garfield 6unty, has done
nulerous acts to the apparent injury to ttre Plaintiffs. In ParagraFh 6,
Plaintiffsr pleading statcs "Garfield 6unty has unlawfully refused approval of
the Oloroso Srrbdivision...'. It is respectfully submitted ttEE, Crarfield.
6unty has done rothing wrong, but only atternpted to fu1fill its lega1
obligaEion as a political subdivision of ttre State of Colorado. It, is
acknowledged that the Garfield Oounty Plannirg Oonmission has tabled ttrat' firnl
pfat s*mission of the Plaintiffs, hrt the C'arfield 6unQr Plannirg @rmission
is not a nared Deferdant.
.,
"6loroso was unable to gay the rernairder of the depsit
because the C;arfield 6unt1z ConmissiorErs, actirg through
the C;arfield 6unty Plannirg Departnent, rvould rrct approve
,the subdivision, beiause they held the opinion ttrat the
iEtro District did not have adequate water supSties to
service the Oloroso Subdivision. "
Rrrsuant to Section 3.05(i) of ttre Garfield 6unQr Subdivision Regulations, a
referral of ttre Oloroso Subdivision preliminary plan was rnade to the State
Water Engirreer for his aplroval or disapproval of a water supply frqn the Rifle
ViILage South ltetroplitan District. Ttre response to ttris referral is a letter
of June IO, 1982, which is a corditional apgroval based ugnn the filing of a
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water augrrEntation plan by Defendant, Rifle village south l"tetropolitan
District. Tb the extent that Plaintiffs are complainirg of the qualit'y of
agproval receirred for their pgopsed subdivision, it is respectfully submitLed
that, the state of oolorado is an indispensible prty without which this oourt
cannot adjr-rdicate the righEs of all parties'
In ParagraEh 21, the Plaintiffs make refererpe to the Agreerent' wit'h the
citrr of Rifle. If it is the Plaintiffs' position tJrat this @urt has the
auttoriQz to order Deferdant,r GarfieLd &qnty, to approrrc a final plat as to a
specific water supply, it is resEnctfully sutrnitted that the Citsy of Rifle is
an irdispensible Frty to ttris action'
Dre process of larr requires that those prties nhose interests are at
I83oo.Io.I58,515P.,d632(1973).Bywayofargtrrentastothe
indispnsibility of the aborre prties, it should be pointed out' that the state
water p;xgireer has a vical interest in determinirg that there are adequate
watser sources for residential uses. ftrerefore, to force the @unty to appove
a specific water supply without the inrrolvenent and rec'onnerdation of the state
Water,'m,gir,*r, rpuld be harmful to ttre.lprlclic interesE' fn regards to the
CiW of Rifler Deferdant, Garfield 6unQr7 has never seen any Agreerent to
provid: water service, ard ttris Oourt should not order that that be dore absent
the inrrolrrcrent of the city, ard notice of its irnperdirg obligat'ions to
potential lot El4zers in the 6loroso Subdivision' Ib the extent that C;arfield
counQr has relied uSnn the action of the staEe water Engireer, the state is an
irdispensible prty in this action, and complete relief canrpt be accorded to
tlre plaintiffs without also namirg the citsy of Rifle herein'
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v.
AI{D
PIATNTIFTS HAVE FAILED TO SUE II{E PROPER PARTT
IST\,TISS SIrT,ILD BE GRANIED
Section 30-11-105, C.R.S. '73, as anerdd, states:
"In aII suits or prrceedings by or against a County, the
nanre in which the 6unQr shall sue or be sued shall be
"the Board of 6unty Corrrissioners of the 6unty of
Garfield &unEy is a plitical subdivision of the State of 6lorado,
wtrich is authorized by Article Xw, Section I of ttre Olorado OnstituEion, ard
Section 30-5-125, C.R.S. r73, as arEnded. Itrere ls rpt rpyr, ard there lE\rer
tns been, any entities legally krph,n as Garfield 6unEy @cmissiolrcrs.
In the case of Calahan trs. @, 163 61o. ?J2, 429 P.U
301 (1967), the olorado Suprenre 6urt said that Section 105 povides the
exclusirre rethod by which jurisdiction orrer a 6unQr can be obtairred, ard an
action attempted to be brought urder any other designat,ion is a nullity.
Iherefore, Plaintiffst cause of action should be disrnissed.
vr.PTAITiIITITESI EAIISE OF ACTICN STTULD BE DISTI{ISSED
FNR FATLI'RE TO SERVE lUftCE PURSUAT.}T TO SELTTCN 24-IO-].09
Plaintiffs.have rlct pled that any notice has been senred upn
Defendants, Garfiel-d 6unQr, in compliarce wittr Section 24-I0-IO9I and, in
fact, Deferdants have ro krotfledge that arqr such notice has been served' rhe
Olorado Coverrurental Inmunity Act, (24-10-101, et.seq., C.R.S. r73, as
arerded), is interded to preserve the defense of goverrunental inmunities with
certain express exceptions. Gre of the express excegtions is that a g:blic
entiQr wairres its irrrunity so lorg as certain procedures are foIloqrcd. Qre of
those procedures, in Section I09r requires that notice be serrred prior to the
corrrrenerrent of any action:
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"substantial compliarce with the notice provisions of
Section, shall be a cordition precedent to any action
under the provisions of this article, ard the failure
substantial compliance shall be a complete defense to
action. "
this
brought
of
any such
In ttre case of Roberts vs. The CitY of Boulder, L97 61o. 97 , 589 P.?t 934
(1979), the Oolorado Suprere Oourt held that the failure to file a written
noticre is a complete defense, ard in the abserce of which the prblic entity has
arighttorelyuponthedeferrseofsovereignfurrrnrniQz.Sirceap:blicentity
is defined in Section IO3(5) to ircltrde a 6unty, rptice as a trrocedural
prerequisite, ard nnrst have, in fact, occ.ured, and that fact' pled.
ltre failure of the Plaintiffs to provide rptice to the 6unty, ard to
plead that fact,, is a jurisdictional bar to ttris 6urt, grantirg nonetary relief
as to the Deferdants in any fashion.
VII. COICLUSION
plaintiffs, in the sanre pleadirg, harre brought suit against the Rifle
Village Souttr lbtroplitan District for a breach of contract and other tortious
claims, and at the sane tinp, alleged that Deferdants, C'arfield Oounty
Conmissioners, should ap[xove a final plat for the Oloroso Subilivisiot on the
assr.rnpt,ion that r.nter will be provided by the Rifle Village South t'letropolitan
District. Althoggh 6lorado Iaw allons for alternative pleadirg of causes of
action, tlre causes of action in Plaintiffsr complaint are conflictirg, ard stow
the absurdity of plaintiffs' psition. Ttris 6urt does not harre the auttrority,
urxler the present circunstances, to order ttrat the C,arfield County
Conmissioners approve the final plat with water from the Rif1e ViIIage South
t6tropolitan District, erren if the disgrte betr.reen the Plaintiffs ard ttre other
Defendants is sonekron resolrred. Itris rnatter is not rip for adjudication
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o
because of the posture of Lhe nratter in the administrative [xocess' F\rrther'
there is no such entity as the C'arfield county conrnissioners' and Plaintiffsl
complaint should be dismissed for their failure to nane the proper entity in
acc.ordarce with section 3o-II-I05. Plaintiffs have failed to nare all
irdispensible parties tprein, ard in ttre abserce which Plaintiffs' complaint
should be disnissed. FinaILy, Plaint'iffs have failed Eo plead a cordition
precedent so that rp mcnetary relief can be granted against DeferdanEs'
c,arfield 6unQr ormissiorErs. Deferdant, Garfield 6u^ty' ap[tars specially
for the trrrpose of ttris llction to Digniss, and request that' said !'lction be
grancd, ard further, in accordarEe with R-rle 11, C'R'C'P' r73' ard 13-17-101'
et.seg., c.R.s. r73, as allErded, make irqtriry as Eo nhether attorney's fees ard
c.osts of this action shourd be assessed against praintiffs-
RespectfullY submitted :
o
I ,
Garfield @unQr Attorney
AtEorneY for Deferdants
P. O. Box 640
Glernnod SPrirgs, @ 81602
Ible$onez 303/945-9158
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DISIRICI CqJFx., GJNIY oF CARFIEI,D, STA.IE oF cotoliADo
C-ase llo. B3C\/10
CERTIFICATE OF t'lAILIt'G
ROtsERf D. @IIRGO ard DAO{ !'1. IOLMES, Plaintiffs,
VS.
RrFr,E VrtftrE So(mi rcin l DisBrcr; Af,Etrn ABEL ard GARFTETD'Iu,IIr "
@V!,IISSIC$IER.S, Defendants.
I oertiflz that true ard aanrraqe c:o-Eres of the foregoirg ,htsrded llrtion to
Disniss, ard in U= aft t*Ci* llrtion f6r Sunrary .fudgrEn!: ad Brief of
Garfield 6unE1z G;rGGLrs in Suppo* of- iEs.u6tion to Digniss wag tnailed to
the belo+r-namea @trnsel, pstage p.;Fie, Urfs \$ d4r of t\ ^ \- ,
1983.
Jchn W. Savagel Jr., Esquire
P. O. Box 1926
1301 Arabian Avenue
Rifle, C0 81650
(Attorney for Plaintiffs)
Richard T. PalmteEl JE., Esquire
P. O. Box 789
Crested Butte, @ 8L224
(AebrrEy for Deferdants Rifle-viffagJ south MeEropolitan Dist'rict'
ard Netha Abel)