A ruling by the Colorado Court of Appeals last Friday will result in Western Slope Layers on Powell Mesa quitting operations.
Delta County Administrator Robbie LeValley issued a statement following the Appeals Court denial of a stay request by the owner of Western Slope Layers, Edwin Hostetler.
The county statement says, "On Nov. 1, The Colorado Court of Appeals denied the Hostetlers' motion for stay pending appeal. Accordingly, the cease and desist order issued by the county to the Hostetlers on Sept. 6 is reinstated. The county expects the Hostetlers will comply with the cease and desist order in a reasonable amount of time."
In a separate but closely related matter, despite the adverse Appeals Court ruling, Delta County government intends to move forward with its appeal of the local 7th Judicial District Court ruling in September against the Board of County Commissioners and Western Slope Layers.
"The Colorado Court of Appeals (has) accepted the notice of appeal filed by the Board of County Commissioners," LeValley said in her statement.
The Hostetlers' request for stay would have allowed the Western Slope Layers operation to remain in business until the county's appeal is decided, which could take up to a year.
Neighbors who oppose the Powell Mesa hen-egg operation were pleased with the Nov. 1 Appeals Court ruling. In a joint statement, Travis Jardon and Susan Raymond said in part, "We were not surprised by this outcome, but even more pleasing was how quickly the (Appeals) Court ruled .... We have argued that (the commissioners') actions in approving the Hostetler (specific development) applications were clearly arbitrary and capricious resulting in illegal land use permits."
In September, the 7th District Court ruled against the county and Hostetlers in a suit brought by neighbors of Western Slope Layers, including Raymond, and others. That September ruling included an order that the county issue a cease and desist order to the Hostetlers operation.
The county has appealed the entire 7th District Court ruling and will continue that appeal because, LeValley explained, it calls into question important issues affecting the commissioners' statutory oversight authority in land use regulation.
The county believes that the 7th District Court overstepped its own discretion by essentially second guessing the commissioners' specific development approval for Western Slope Layers.
As explained by the commissioners and their staff during an interview with the DCI on Oct. 28, the 7th District Court was expected to rule only on the correctness of the BoCC's hearing process for Western Slope Layers'
specific development application. Instead, the court conducted its own "re-hearing" of evidence and rendered its own judgment different from the BoCC's. By doing so, the 7th District Court supplanted itself in the Board of County Commissioners' statutory role, the county maintains.
The 7th District Court in its September ruling said that the county's failure to respond individually to health complaints from Western Slope Layers' neighbors amounted to a failure of process. The county maintains that its environmental health department did in fact respond to those complaints by monitoring pollution emissions from the Western Slope Layers' facility. The county position is that the BoCC weighed testimony and found there was conflicting evidence whether health complaints were actually caused by air pollution from the Hostetlers' operation.
By rendering its own judgment where the county commissioners have statutory authority, the 7th District Court overstepped discretion in the case, the county maintains.
County attorney Christine Knight explained, "It is the commissioners' job to weigh evidence and make the decision. There were 1,100 pages of evidence. There was a lot of conflicting evidence. But the standard (for plaintiffs) in that case is to prove there was 'no competent evidence at all' to support the commissioners' decision," she said. "We're saying the (7th District) Court improperly re-weighed the evidence."
The point on health complaints is not the only issue involved in the county's appeal. But in studying the 7th District Court's September ruling it appears to be a key point on which the ruling turned.
Among the results of its appeal the county is hoping for is a ruling that the Board of County Commissioners acted within its statutory authority approving the specific development application for Western Slope Layers.
County commission chair Doug Atchley said, "We would like the Court of Appeals to review the whole decision of the 7th District Court. In this specific case we would like to see it reviewed, and that's why we have appealed it."blog comments powered by Disqus