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Opening Brief
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Last modified
1/26/2010 4:41:42 PM
Creation date
7/29/2009 3:05:54 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8230.2F
Description
Colorado Supreme Court Appeal
State
CO
Basin
Colorado Mainstem
Water Division
4
Date
7/26/2004
Author
Ken Salazar, Susan Schneider
Title
Opening Brief
Water Supply Pro - Doc Type
Court Documents
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S rin s, 489 P.2d 324, 325-26 (Colo. 1971) (to overcome a presumption of validity, invalidity <br />must be established beyond a reasonable doubt); Sundance Ass'n v. Arapahoe County, 534 P.2d <br />1212, 1217 (Colo. 1975) (burden is "beyond a reasonable doubt" to overcome presumptively <br />valid rezoning decisions); Lomax v. Cronin, 575 P.2d 1285, 1286 (Colo. 1978) (must overcome <br />"presumption of validity" afforded by Governor's warrant by "clear and convincing evidence"); <br />Augustin v. Barnes, 626 P.2d 625, 628 (Colo. 1981). <br />All reasonable doubts as to the correctness of the CWCB determinations must be <br />resolved in favor of the agency. Bird, 489 P.2d at 325-26. A party challenging a presumptively <br />valid finding bears the burden of overcoming that presumption, and courts "indulge every <br />intendment in favor of its validity." Snyder Family Trust v. Adams County Bd. of Ecualization, <br />835 P.2d 579, 581 (Colo. App. 1992); Arapahoe Partnership v. Board of County Commissioners, <br />813 P.2d 766 (Colo. 1990). <br />If the language of section 37-92-305(13) putting the burden on the Applicant is not clear, <br />the intent of the Legislature is. During the hearings on SB 216 wherein the Board's role was <br />discussed, Senator Perlmutter explained that a"rebuttable presumption is stronger than an <br />advisory suggestion" by the CWCB. (Exhibit L, Sen. Perlmutter, p. 3). The CWCB <br />determinations would be "taken by the courts as true and accurate and appropriate, somebody <br />then comes in, has the burden, the burden then is on anybody else to try to overturn what the <br />CWCB has said." Id. "So you made it harder, so it is not advisory, you made it harder for the <br />objectors to complain about the CWCB suggestions or decisions." Id. "This is not an advisory <br />kind of report given by the CWCB, but it is, it has a lot of evidentiary weight that the court will <br />take as true and accurate unless even greater evidence comes by the other folks." Id. <br />20
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