ENFORCE36304 - Laserfiche WebLink

Home Browse Search

WELBORN, DUFFORD 8 BROWN Mr. David C. Shelton April 24, 1984 Page 1 absence of circumstances constituting good cause, i.e., substantial justification, for issuing a cessation order may likewise serve as the good cause for vacating it. In most cases, including this one, those factors will also define what constitutes a "reasonable time" for abatement of the associated NOV and good cause for an extension under Section 123(2) of the Act and Rule 5.03.2(2)(b). As to this last point, it is important to recognize that consideration of "good cause" to vacate a cessation order under Section 123(5) can only occur after failure to abate the NOV within the time originally set, or as extended, if the order was issued under Section 123(3). By allowing for vacation of cessation orders, including those under Section 123(3), these provisions also implicitly contemplate the possibility of extending the NOV abatement period after it has passed. The provisions dealing directly with establishing abatement periods confirm this interpretation. The only limitation in the Act on abatement periods for an NOV is that they be set at a "reasonable time, but not more than ninety days, ." C.R.S. §34-33-123(2). Section 123(3) also contemplates extensions, subject to the "reasonable time" and ninety day limitations. Rule 5.03.2(2)(b) expands somewhat on these statutory standards by requiring a written request and showing of good cause for an extension. Neither the Act nor the regulations specify when, as compared with how, why and how long, an extension is to be requested or granted. An NOV abatement period extension request, therefore, may be made and granted either before or after the initial period has passed. This conclusion is confirmed by the absence of any prohibition against it and by the contemplation of the Act and regulations that cessation orders issued under Section 123(3) may be vacated after expiration of the NOV abatement period. Furthermore, the Division is required to consider an extension request after the period has passed to determine whether the total abatement period, including the extension, is reasonable. If it is, then allowing the shorter, expired abatement period to stand would constitute imposition of an unreasonable abatement period in violation of Section 123(2) and Rule 5.03.2(2)(b). ' Of course, it is highly advisable to request an extension before the initial abatement period has passed. The foregoing analysis does not diminish that notion. Rather, it