HomeMy WebLinkAbout2020CV30580 - City Of Fort Collins V. Board Of County Commissioners Of Larimer County, Colorado And Streetmediagroup, Llc - 021A - Exhibit A - Thornton Complaint Case No. 2019Cv30339
DATE FILED: October 23, 2020 12:08 PMDATE FILED: April 16, 2019 7:05 PM
DISTRICT COURT, COUNTY OF LARIMER
FILING ID: 577B70D840207FILING ID: C8EF94D540A11
STATE OF COLORADO
CASE NUMBER: 2020CV30580CASE NUMBER: 2019CV30339
201 LA PORTE AVE.,SUITE 100
FORT COLLINS, CO 80521
Plaintiff:
CITY OF THORNTON, a home rule municipality of the State of
Colorado,
v.
Defendants:
Case No.:
B
OARD OF COUNTY COMMISSIONERSOF THE COUNTY
OF LARIMER, State of Colorado; John Kefalas, in his official
Division:
capacity; Steve Johnson, in his official capacity; Tom Donnelly, in
his official capacity.
______________________________________________________
Attorneys for the City of Thornton
Luis A. Corchado, Esq. Atty Reg. #17765
Joanne Herlihy, Esq. Atty. Reg. #17838
City of Thornton
9500 Civic Center Drive
Thornton, Colorado 80229-1220
(303) 538-7210
E-mail: luis.corchado@cityofthornton.net
joanne.herlihy@cityofthornton.net
COMPLAINT FOR JUDICIAL REVIEW UNDER C.R.C.P. 106
AND DECLARATORY RELIEF
Pursuant to C.R.C.P. 106 and 57 and Colorado statutes, Plaintiff City of Thornton,
Colorado, by and through its attorneys, respectfully bring this Complaint against Defendants,
Board of County Commissioners of the County of Larimer, State of Colorado; John Kefalas,
Steve Johnson, andTom Donnelly, all in theirofficialcapacities(“Board”).
INTRODUCTION
1.In four or five years, the City of Thornton (“Thornton”) will needmore drinking
waterfor its residents. It prepared for this need decades ago by purchasing water from the Water
Supply and Storage Company (“WSSC”)system in Larimer County andchanging that water in
Water Court to allow it to be transported 75 miles to be used as drinking water in Thornton. As
required by Larimer County regulationsat issue in this case,Thornton applied for a 1041 permit
from Larimer County tositeand develop asingle domestic water transmission pipelinefrom
WSSC ReservoirNo. 4,adecreed storage location of Thornton’s water right, through 26miles of
unincorporated Larimer County.Larimer County’s 1041 regulations set forth 12 criteriafor
approval of a 1041 permit.In its initial application, Thornton identified its preferred pipeline
route to be inDouglas Roadright-of-way(the “DR Route”) butalso identified threeother
reasonable pipeline alternatives:an alternative Douglas Road route being ashorter portion of the
Douglas Road routewhichthen cuts north toa central route;acentral route; and a north route
along County Road 56.SeeFigure 1below (demonstrative representation of the fourreasonable
siting alternatives);see alsoExhibit 1(the four reasonable siting alternatives individually
identified).The DRRoute allowed Thornton to install mostof the east-west segment of its
pipeline inDouglas Road inpublic right-of-way. Larimer County’s staff recommended approval
of this option but the Boarddid not approve this option for a permit, following aplanning
commission meeting and three publichearings. Providing no specific guidanceto Thornton, the
Boardrequired itsstaff to conduct a public vetting process for three months and return for
additional public hearings.
Figure1
2.Attempting to address general concerns Thornton heard from the Commissioners
and comments during the 3-month vetting process, Thornton selectedCounty Road 56 (the
“CR56 Route”) as itspreferred pipeline route.Exhibit 2(Figure ES-3S (Supplement3, January
18, 2019)).The CR56 Route was an option Thornton had previously identified in its application
(the north route) as a reasonable pipeline alternative that could be installed in public right-of-way
2
or private easements. Thornton additionally proposed that the DR Route(the south route)was
still a viable option that the Board could choose.Larimer County’s staff recommended approval
of the CR56 Route.After four public hearing sessions, the Boardalso rejected this option,
findingthat Thornton did not meet 7 of the 12 criteria. Ultimately, the Boardrejected an
application that presented two very different preferred routes supported by LarimerCounty staff
(anorthernand southern route),as well asthealternative Douglas Road route and central route.
This rejection occurred despite more than 1,700pages in the application, 7public hearing
sessions stretched over 8months, and an additional public vetting process that lasted three
months with2open houses,3webinarsand 5working group meetings. This rejection occurred
despite the Board explicitly finding that “\[t\]he benefits of Thornton’s proposal are also
significant, as clean and sufficient water supply is of critical importance.” It is undisputed that
“the Board’s authority is limited to approving the siting and development of pipelines.” Exhibit
3, Findings and Resolution Denying the Thornton Water Project 1041 Permit (“Findings”), p. 13.
As further described below, the Board’sdecision exceeds its jurisdictionand/oris contrary to
law, misinterprets and misapplies its criteria, and was arbitrary and capricious because its
findings lack competent evidence tosupport the Board’s denial of Thornton’s application.
Thornton asksthis court to overturn Larimer County's decisionand,of the four routes Thornton
identified as reasonable in its application,either itself approve or require that the Boardapprove
either the DR Route or the CR56 Route for the siting and development of Thornton’s proposal.
PARTIES
3.PlaintiffCity of Thornton is ahome rule municipality of the State of Colorado.Its
principal place of business is located at 9500 Civic Center Drive, Thornton, CO 80229.
4.Defendant Larimer County Board of County Commissioners, including the
individual Commissioners in their official capacities,(the “Board”),is the governing body for
Larimer County.
JURISDICTION AND VENUE
5.This Complaint arises from the Board’sdenial of a 1041 permit in Larimer
County, Colorado.
6.This Court has jurisdiction under Rules 106(a)(4)and 57, C.R.C.P., and under §§
13-51-101 to -114, C.R.S. (Uniform Declaratory Judgments Law),§§ 13-51.5-101 to -103,
C.R.S. (Review of Land Use Decisions)and § 24-65.1-502, C.R.S. (Areas and Activities of State
Interest).
7.Pursuant to Rule 98(a), C.R.C.P., and § 24-65.1-502, C.R.S., venue is proper in
Larimer County because this action involves a decision by an elected body of Larimer County
concerning land use, including without limitation the denialof a1041permitfor the siting and
development of adomestic water transmission line in Larimer County, Colorado.
3
GENERAL ALLEGATIONS
Thornton’s Water Rights and Need for a Domestic Water Pipeline
8.Thornton has approximately 139,000 residents and soon its population will need
more drinking water than Thornton currently can deliver.
9.To prepare for such a day,decades ago, Thornton purchasedwater rights in the
Water Supply and Storage Company(“WSSC”) and Jackson Ditch Company (“JDC”), mutual
ditch companiessystem(together “WSSC system”).Thornton specifically purchased its WSSC
and JDC shares to meet its need for additional water supply from a high-quality water source
with adequate storageavailabilityin the WSSC system.Ownership in a mutual ditch company
constitutes ownership of a real property interest in water rights.
10.In 1998, Thornton obtained a water court decree in Consolidated Case Nos.
86CW401, 86CW402, 86CW403, and 87CW332, District Court, Water Division No.1 (March 9,
1998) (“Decree”). The Decree setsforth factual findings recognizingThornton’s need to acquire
and change itsWSSC and JDC shares to meet its need for additional water supply from a high-
quality water source. The Decree further recognizesThornton’s intent to withdraw its water
from a WSSC system reservoir via a pump station and then to carry that water via pipeline to
Thornton.
11.The Decreeidentifies that the points of diversion that Thornton is legally allowed
to divert its WSSC and JDC water (the water to be transported in the pipeline through Larimer
County) must be at the original headgate of the Larimer County Canaland Jackson Ditch.As a
shareholder in WSSC,by contractual agreement with WSSC, and under the Decree,Thornton
has the right to storeits water rightsdiverted at the Larimer County Canalin the WSSC
Reservoir No. 4(located in Larimer County).The Decree then provides that Thornton will
withdraw its water by a pump station at WSSC Reservoir No. 4.
12.As part of its acquisition of the WSSC and JDC shares, Thornton also purchased
1,766 acres of land in Larimer County. Thornton currently holds 1,590 acres in Larimer County,
having sold 176 acres to Dyecrest Dairy. The Decree requires that before Thornton may use its
water rights in Thornton, Thornton must remove the water historically used on this acreage and
either: 1) establish dryland farming practices; 2)revegetate theacreage to certified self-
sustaining native grasses;or3) establish suitable non-agricultural uses. Of Thornton’sremaining
1,590 acres roughly 50% is still in irrigated agriculture. The other 50% has been certified as
self-sustaining native grasses, is in the process of being certified, or is an established suitable
non-agricultural use.
13.Consequently,toserve thepurpose and need in acquiring its WSSC and JDC
water rights and to abide by its Decree and contractual agreement with WSSC,Thornton’s
starting point for its water pipelineis at WSSC Reservoir No. 4.Accordingly, Thornton
proposedto build a single domestic water pipeline in Larimer County in a new permanent
easement exceeding 30 feet in widthbeginning at the WSSC Reservoir No. 4 through Larimer
County.
4
Thornton’s Application for a1041 Permit
14.Thornton’s proposalfor a new permanent easement exceeding 30 feet in widthfor
asingle domestic water pipeline in Larimer Countyrequired that Thornton apply for a permit
under Larimer County’s regulationsadopted pursuant toC.R.S. §§ 24-65.1-101et seq.,(the
“Act”)referred to as a 1041 Regulations and a 1041 Permit.
15.Larimer County’s 1041 Regulations,application and hearing process are found in
Larimer County’s Land Use Code (“LUC”) in Sections 12 and 14 of Part IIand incorporated
herein by reference.SeeExhibits4 (applicable portions of LUC Section 12)and5 (LUC
Section 14).
16.The procedural steps required for a 1041 permit decision are outlined in LUC
Section 14 and reference that in certain instances more specific information on the steps are
contained in LUC Section 12. The procedural steps require a: 1) Pre-application conference; 2)
receipt of a complete and sufficient application; 3) referral to affected agencies; 4) public hearing
before the planning commission and county commissioners; and 5) post-approval requirements.
SeeExhibit5,LUC 14.9.B.
17.No later than 30 days after receipt of a complete application, the planning director
must set and publish a notice of the date, time and place for a hearing before the county
commissioners.The notice must be published once ina newspaper of general circulation not less
than 30 nor more than 60 days before the date set for hearing.SeeExhibit 5, LUC 14.9.C.1.
Notice of the planning commission hearing must be published in a newspaper of general
circulation at least 14 days before the hearing date.See Exhibit 5, LUC 14.9.C.2.
18.Notice is to be mailed to property owners in the vicinity of the proposal at least 14
days prior to the hearings. SeeExhibit 5, LUC 14.9.C.3.Notice must be mailed (first-class,
postage-paid) to property owners in the vicinity of the proposal. Records of the county assessor
will be used to determine the names and mailing addresses of those to be notified. At the pre-
application conference prior to submitting the application, the applicant and the staff planner
assigned to the project will determine the area to be included in the mailing list. The area
included cannot be less than 500 feet surrounding the property. Depositing the notice in the U.S.
mail with postage prepaid is the responsibility of the planning department or rural land use center
and satisfies the mailed notice requirement. Failure to send a mailed notice does not invalidate
any public hearing. See Exhibit 4, LUC 12.3.3.
19.The planning director may, when necessary, decide that additional expertise is
needed to review a project.SeeExhibit 5, LUC 14.9.E.
20.The general requirements for approval of a 1041 permit application are that: 1) he
applicant must submit a complete and sufficient application that is consistent with the submittal
requirements that are stated at the pre-application conference; 2) the applicant must satisfactorily
demonstrate that the proposal, including all proposed mitigation measures, complies with all of
the applicable criteria. If the proposal does not comply with all the applicable criteria, the permit
shall be denied unless the Board determines that reasonable conditions can be imposed on the
5
permit which will enable the permit to comply with the criteria; and 3) if the Board determines at
the public hearing that sufficient information has not been provided to allow it to determine if the
applicable criteria have been met, the Board may continue the hearing until the specified
additional information has been received.SeeExhibit 5,LUC 14.10 A.-C.The Board can, on its
own motion,table the public hearing to a specified date. Tabling for more than 40 days without
the applicant's consent is not permitted. SeeExhibit 4, LUC 12.4.2.C.
21.Larimer County’s 1041 Regulations setsforth 12 criteria applicable to the “siting
and development” of adomestic water pipeline. SeeExhibit 5, LUC 14.10.D. 1-12.
22.Beginning in 2014 and continuing in 2015,Thornton heldpreliminary discussions
with County Planning,Public Works/Engineering and Open Lands Department staff about
Thornton’s proposed single pipeline project, including possible alignments and corridors.
Thornton also conducted public outreach in developing reasonable alternatives.At this time,
Thornton was told by Larimer County staff that it should locate its pipeline outside of Larimer
County right-of-way and future right-of-way.
23.In May 2016, Thornton attendedapre-application conference for a 1041 permit
with County staff and, although not required by Larimer County’s 1041 application process,
conducted public outreach througha series of mailings and open houses in late 2016 and through
2017.
24.Originally, Thornton proposed a quarter-mile wide corridor and then, at the
request of Larimer County staff, Thornton proposed a preferred alignment with a 500-foot wide
corridor for the proposal in the area around the WSSC Reservoirs and east to Larimer County
Road 9. Later, the alignment on the DR Route was reduced to the Douglas Road right-of-way
with the approval of Larimer County staff.The corridor approach was encouraged and approved
by Larimer County staff. The Board never stated that the corridor approach was unacceptable.
The purpose of proposing a corridor for the 1041 permit, rather than an exact alignment, isto
allow flexibility in locating the water pipeline (typically within a 50-foot permanent easement
with an additional 40-foot temporary construction easement) during final design and to not need
to obtain future action or approval under the permit for location changes in the corridor based on
unforeseen obstacles or property owner location preferences.
25.Thornton completed an Alternative Corridors Analysis from WSSC Reservoir No.
th
4 to 168Avenue in September 2016. Based on that analysis, Thornton selected Alternative D
as the preferred corridor for the pipeline.SeeExhibit6 (Figure 3-6 of “Reach 2 Alternative
Corridors Analysis”, Appendix A-1toThornton’s 1/5/18 Application).Alternative D
generallystayed out of County right-of-way and followed thecentral route from WSSC
Reservoir No. 4 to County Road 9.
26.After input from residents, the primary area of controversy concerning the
proposalfocused on the location ofapproximately 3miles of the pipeline betweenWSSC
Reservoir No. 4 and TurnberryRoad.As a result, Larimer County staff requested that an
analysis of alternative water pipeline alignments from the connection to the WSSC system to
approximately County Road 9 be included in the application.No revisions or analysis to the
6
approximately 23 remainingmiles of pipeline in the proposed corridor east of County Road 9 or
along the north-south alignment County Road 1/Weld County Road 13 were required by Larimer
County staff. In addition, Larimer County staff statedthat locating the pipeline in Larimer
County right-of-way would be consideredat some locations.
27.Thornton completed an Alternative Configurations Analysis-WSSC Reservoir
Area to Larimer County Road 9 in October 2017. Thornton analyzed 10 alternative
configurations in this analysis as shown in Exhibit 7 (Figure 5.1.12.2-1 of“Alternative
Configurations Analysis-WSSC Reservoir Area to Larimer County Road 9”, Appendix A-2
to Thornton’s 1/5/18 Application).Thorntondivided theten alternative configurations
considered in the analysisinto four general sectors: North, West, Central and South. Based on
this analysis, Thornton identified, and presented to the Board,fourreasonable alternatives for
siting the pipeline. The fourreasonable siting alternatives resulting from the analysis were the
South 2 and South 4 routes, the West 2 route and the Central route. SeeExhibit 1.These are
alternatively described as the DR Route(South 2), the alternative Douglas Road route(South 4)
the CR56 Route(West 2)and the central route(Central)identified in Paragraph 1and shown in
Figure 1.In the same vein, theeast-west segment of the Alternative D route noted in Paragraph
25corresponds to the central route in the October 2017 analysis.See alsoExhibit 1.
28.As requested by Larimer County staff Thornton selected a preferred alternative
from the October 2017 analysis for inclusion in the application. Thornton selected the DR Route
(aka the South 2 route).The DR Routeincludes a connection to the WSSC Reservoir No. 4
outlet thence south to Douglas Road right-of-way, thence east in Douglas Road right-of-way to
Thornton-owned propertyatTurnberry Road. The route proceeds onThornton-owned property
to County Road 56, and then alongCounty Road 56 to County Road 9. SeeExhibit8(Figure
5.1.12.2-11 of “Alternative Configurations Analysis-WSSC Reservoir Area to Larimer
County Road 9”, Appendix A-2 to Thornton’s 1/5/18 Application).The DR Routewas not
the least expensive route, but was selected because it best met evaluation criteria taking into
consideration impactsto among other things, residential properties, traffic and environment.
29.On January 5, 2018,Thornton submittedits application for 1041 approval of a
single domestic water pipelinewith the DR Route as the preferredroute.Where the corridor
parallels Douglas Road, the application proposed that the water pipeline be located in Larimer
County right-of-way where feasibleand as approved by Larimer County. In the event that the
location of the pipeline could not be accommodated in Douglas Road or County Road 56 right-
of-way, Thornton proposed to purchase easements from property owners.
30.Thornton discussed the source water pump station (to be located near WSSC
Reservoir No. 4) with Larimer County staff at the pre-application conference. Larimer County
staff stated that the source water pump station was not a part of the 1041 permitting process but
would be separately permitted through the Site Plan Review permit process pursuant to LUC 6.0.
Nevertheless, Thornton included information in the application on the source water pump station
for informational purposes and to present a more complete scope of the overall pipeline siting
and development. Thorntoncommitted to proceeding with a Site Plan Review permit application
for the source water pump station in accordance with LUC 6.0.
7
31.Later, in its staff report referenced in Paragraph37Larimer County staff stated
that it considered the pump station to be a part of the 1041 application because of its location and
intensity of use. Thornton objected to inclusion of the pump station as part of the 1041
application in a June 29, 2018 Statement because of Larimer County’s lack of authority to
regulate the pump station under its 1041 regulations, but without waiving its right to challenge
this decision, agreed to address aspects of the pump station before the Board.
The Planning Commission Hearing
32.On January 16, 2018, after the planning director determined that Thornton’s
application was complete, he issued and published a Public Hearing Notice settingnotice of the
date, time and place for a hearing before the Planning Commission and Board. Those hearings
were to be heldon February 21, 2018 and March 26, 2018 respectively.
33.The Planning Commission’s role is as an advisory commission, to review the
application, conduct a public hearing, consider all information presented by the applicant and the
planning departmentand formulatea recommendation to the Board for approval, approval with
conditions or denial. The Planning Commission’s recommendation must include findings stating
how the proposal meets or fails to meet the review criteria. See Exhibit 4, LUC 12.2.6.
34.Subsequently, Larimer County staffpostponedthose hearingsforThornton to
provide additional information requested by the County.The information requested from
Thornton was: 1) to provide field survey and pipe alignment information to determine whether
Thornton’s pipeline could be constructed within the Douglas Road right-of-way; 2)identify a
construction schedule for segments along Douglas Road; 3) provide a pavement restoration plan;
4) summarize how Thornton will coordinate and provide for any utility relocations necessary to
install the pipeline; and 5) provide additional basic information on the pump station.
35.Thornton provided the requested information. Thornton confirmed that
Thornton’s pipeline could be constructed entirely within the existing Douglas Road right-of-way
and Thornton proposed to construct the pipeline and limit its construction footprint to be entirely
within the existing Douglas Road right-of-way. The alignment in the Douglas road right-of-way
would entirely avoid impacts to homes, private improvements and/or landscaping from the
pipeline or its construction.
36.On April 19, 2018, again after determining that Thornton’s application was
complete, the planning director issued and published a Public Hearing Notice setting notice of
the date, time and place for a hearing before the Planning Commission and Board. Those
hearings were scheduled for May 16, 2018 and July 9,2018 respectively.
37.In advance of the Planning Commission hearing, the Larimer County staff issued
its written report on Thornton’s application includingthat report in the Agenda for the May 16,
2018 Larimer County Planning Commission hearing.Larimer County staff concluded that
Thornton “presented a thorough analysis of the proposal and the proposed alignment/corridor.”
Larimer County staff concluded that Thornton’s application met all 12 review criteria and
recommended that the Planning Commission recommend approval of the application to the
Board with 25 conditions.
8
38.On May 16, 2018, the Planning Commissionheld a 4-hour public hearingon
Thornton's application.
39.Much of the public/residents’ testimony focused on asking the Planning
Commission to require that Thornton send its water down the Poudre River rather than approve
the siting and development of a pipeline, which is the issue in the 1041 permit application.
40.In discussingThornton’s proposal the Planning Commissionexceeded its
authority andfactored into itsdecision the notion that Thornton should not build a pipeline but
rather send its water down the Cache la Poudre River.
41.In addition, a number of the Commissioners stated that Thornton’s application
lacked “specificity”. However, when asked by Larimer Countystaff to provide some indication
as to what additional information the Planning Commission was seeking or a recommendation as
to what the Board should seek, one Commissioner stated that asking for the Planning
Commission to outline what they are looking for is “crazy.”
42.The Planning Commission with 3of its9members absent, voted4-2 to
recommendthat the Board denyThornton’s application.Contrary to LUC 12.2.6.C., the
Planning Commission did not make findings of how the proposal met or failed to meet the12
review criteria.
The Board Hearings
43.In advance of the Board hearing, Larimer County staff issued a second written
report on Thornton’s application includingthat report in the Agenda and the Addendum to the
Agenda for the July 9, 2018 Board hearing. Larimer County staff concluded that Thornton
“presented a thorough analysis of the proposal and the proposed alignment/corridor.” Larimer
County staff concludedthat Thornton’s application met all 12 review criteria and recommended
that the Board approvethe application with 29conditions.
44.On July9, and 23, and August 1, 2018,spanning over 8hours, the Board held
public hearings to consider Thornton's application.
45.Some residents south of Douglas Road asserted that they had not received notice
of the proposal. However, as described in Paragraphs 18, 32 and 36a Public Hearing Notice was
issued and published by Larimer County in accordance with LUC14.9.C.2.Further, pursuant to
LUC 14.9.C.3written notice of the hearing was delivered or mailed, first class, postage prepaid
to landowners within 500 feet of the proposal.In addition, as described in Paragraph23
although not required by Larimer County’s 1041 application process, Thornton conducted public
outreach through a series of mailingsand open houses in late 2016 and through 2017 about the
proposal.
46.Thornton testifiedand explainedhowthe proposal for its single pipeline metthe
12review criteria. Many area residents appearedin opposition to the proposal but some did
support it.
9
47.Much of the residents’ testimony focusedonasking the Board to require that
Thornton send its water down the Poudre River rather than approve the siting and development
of a pipeline, which is the issue in the 1041 permit application.
48.At the conclusion of the August 1, 2018 hearing, and without specific guidance or
specific requests for information, the Boardmoved to continue the hearing to allow County staff
and Thornton time to provide additional information discussed by the Boardanddirected County
staff to involve the public in the information gathering process through public meetings or open
houses. In violation of LUC 12.4.2 requiring it to seek Thornton’s consent for a delay exceeding
40 days,the Board tabledthe application to a December 17, 2018 hearing, with Commissioner
Donnelly stating that the Board did not “need to ask the applicant if --for their concurrence.”
49.Stepping outside of the 1041 process at the Board’s direction, Larimer County
staff then assembled a working group to examine the project.The working group process
spanned three months with 5 working group meetings, 3webinars and 2 open houses. Thornton
was not made a member of the working group but attended all meetings to listen, to provide
answers to working group member questions, and provide any documents or presentations about
technical subjects or the project process.
50.In addition,Larimer Countyinvited the NorthernColorado Water Conservancy
District (“Northern”) to participate in the working group process also as a non-member.
Northern is also seeking a permit pursuant to Larimer County’s 1041 process for, in part,a water
pipeline across Larimer County in the same vicinity as Thornton’s proposal. However, Northern
isproceedingby way of an intergovernmental agreement with Larimer County for itsNorthern
Integrated Supply Project(“NISP”).Larimer Countystaff said the purpose forNorthern’s
participationin the working group processwas to explore the possibility of co-location of the
NISP pipeline and Thornton’s pipeline toreduce community impactsof consecutive pipeline
projects.
51.On December 10, 2018,Thornton submittedto Larimer County Thornton Water
Project Larimer County 1041 Permit Application Supplement 3 in draft form (“Supplement 3”).
On January 18, 2019,Thornton submitted Supplement 3 in finalformto Larimer County.
52.At the direction of Larimer County, Thornton evaluated whether Thornton’s
pipeline and NISP’s pipeline could be co-located in Douglas Road. Thornton’s uncontroverted
evaluation concluded that Thornton’s pipeline and NISP’s pipeline could be co-located in
Douglas Road. Though not part of its 1041 application, Thornton considered and balanced
impacts versus benefits of co-locating Thornton’s pipeline and NISP’s pipeline in Douglas Road.
The evaluation revealed that co-locating Thornton’s pipeline and NISP’s pipeline in the DR
Routewas more impactfulthan locating only Thornton’s pipeline in the DR Route. Because the
working group and the public showed consistent support of co-location of the water pipeline and
10
1
the NISP pipeline, Thornton selected the CR56 Routeas its preferred alternative as a less
impactful route to co-locate these two pipelines. This route is shown on Exhibit 9(Figure 2.c-
S6)(Supplement 3, January 18, 2019))which compares the CR56 Route to the West 2 route
from Thornton’s January 2018 application. The CR56 Route allows for co-location of the
Thornton pipeline and the NISP pipeline beginning at a point between WSSC Reservoir Nos. 3
and 4 and thence east to County Road 9as shown inExhibit10 (CR 56 Co-Location Concept).
53.Supplement 3 also showed that the DR Routeremains a reasonable siting and
design alternative as set forth in the January 2018 application, so long as the project is not co-
located with the NISP pipeline in Douglas Road. Accordingly, Supplement 3 offered the Board
the option to permit Thornton’s pipeline in Douglas Roadas a less impactful stand-alone project,
or to allow Thornton’s pipeline and NISP’s pipeline to be co-located in Douglas Road.
54.In Thornton’s January 2018 application, in addition to the request for a permitfor
Thornton’s pipeline, Thornton also included a request for approval of a one million gallon
above-ground water tank to be located in Larimer County. In Supplement 3, Thornton withdrew
thewater tank request.
55.In advance of the January 28,2019Board hearing, Larimer County staff issued a
thirdwritten report on Thornton’s application including that report in the Agenda for the January
28, 2019Board hearing. Larimer County staff concluded that Thornton’s proposalmet all 12
review criteriaincluding that it:
• Is consistent with the Master Plan in insuring the provision of adequate public
facilitiesand insuring public safety.
• Causes no significant long-term impacts to the natural or man-made
environment fromthe siting of the pipeline.
• Is a reasonable alternative selected from multiple alternatives considered.
• Identifies the needed permits and permissions and commits to obtain those prior
toconstruction.
• Demonstrates a reasonable balance between the costs to the applicant to mitigate
significant adverse effects and the benefits achieved by such mitigation.
On these bases, among others, Larimer County staff recommended that the Board approve the
application with 43conditions.
56.On December 17, 2018, January 28, 2019, February 4, 2019and February 11,
2019,spanning over 10½hours, the Boardcontinued public hearingsand reopened the public
record onThornton's Supplement3.At the conclusion of the February 11, 2019 hearing, the
Board votedto deny Thornton's application.
1
This routehas been identified with a number of different names. It was identified in Thornton’s
January 2018 application as the West 2 route.This route was also identified by the working group
as the Option C or County Road 56 route and as Alternative 3 in Supplement 3.
11
57.Much of the public/residents’ testimony focused on asking the Board to require
that Thornton send its water down the Poudre River or down the Larimer County Canal rather
than approve the siting and development of a pipeline, which is the issue in the 1041 permit
application.
58.In discussion of Thornton’s proposal during the hearings, it is clear that the
Board, contrary to itsauthority, factored into itsdecision the notion that Thornton should not
build a pipeline but rather send its water down the Cache la Poudre River or down the Larimer
County canal.
59.The Boardissuedits findings and resolutiondenying the Thornton Water Project
Permiton March19, 2019, finding that Thornton failed tomeet7 of the 12 criteria: those being
criteria 1 through 4, 6, 10 and 11. SeeExhibit3,Findings.
60.The Board foundthat Thornton met 5 of the 12 criteria: those being criteria 5, 7,
8, 9 and 12.SeeExhibit3,Findings.
The Board’sFindings
61.As further described below in a non-exhaustive list, in rejecting Thornton’s 1041
application under criteria1 through 4, 6, 10 and 11,the Board’s decision exceeds its jurisdiction
and/or is contrary to law, misinterprets and misapplies its criteria, and was arbitrary and
capricious because its findings lack competent evidence to support the Board’s denial of
Thornton’s application.
Criteria1
62.Criteria 1 requires that Thornton’s proposal (Thornton’s siting and development
of a water transmission linein a certain sized easement)be “consistent with the master plan and
applicable intergovernmental agreements affecting land use and development.”
63.There are no applicable intergovernmental agreements, and the Board’s findings
statenone,with respect to Thornton’s proposal pursuant to Criteria 1.
64.The Board points to a “Partnership Land Use System” that it is developing as a
missionunder the Master Plan.On its face, Criteria 1 applies to an existing Master Plan. An
undeveloped aspirational goal is not a basis on which the Board can conclude that Thornton’s
proposal is inconsistent with the Master Plan.The planning director deemed Thornton’s
application complete without the need to address this mission. The Board did not identify the
need for information concerning this missionduring hearings.
65.TheBoardstatesthat there are many themes and principals implicated by
Thornton’s application, but doesnot point to any “inconsistencies” with the Master Plan
affecting land use and developmentbut instead assertsthat it “cannot conclude that Thornton's
proposal is consistent with the Master Plan.” Despite the planning director having deemed
Thornton’s application complete, the Boardidentifiesthe need for more information but did not
ask for additional information.
12
66.The Board determinedthat its ability to assess specific impacts to private property
along the route is unreasonably limited because of the corridor approach.The corridor approach
was encouraged and approved by Larimer County staff. The Board never stated that the corridor
approach was unacceptable. The Board has approved other 1041 applications which used a
corridor approach, including the Roundhouse Renewable Energy Transmission Line Project
1041 Permit Application (Plan Number: 18-ZONE2476) fora new overhead single-circuit, 230-
kV transmission line approximately 9.5 mile long in a 150 foot wide easement. The applicant
there requested and obtained approval of a 300-500 foot wide corridor.
67.The Board’s determinationto deny a 1041 permit to Thornton on Criteria 1
because the CR 56 Route will have most of the alignment in private easements;Thornton may
have to acquire some property by eminent domain;some uses of land subject to private
easements may be limited in the future; and landowners along potential pipeline routesexpressed
concern about short-term construction or long-term impact from maintenance crews,is arbitrary
and capricious because it is contrary to its own regulations and not supported by competent
evidence.
68.The Board’s determinationto deny a 1041 permit to Thornton on Criteria 1
because one personexpressed a concern about being exposed to strangers and equipment on
private property is arbitrary and capricious because it is contrary to its own regulations and not
supported by competent evidence.
69.The Board determinedto deny a 1041 permit to Thornton on Criteria 1 because it
wishes to consider the cumulative impacts of irrigated farmland turning to dryland.The planning
director deemed Thornton’s application complete without such information. The Board never
asked for this information.In addition,the Board found that its “authority is limited to
approving the siting and development of pipelines.” Exhibit3,Findings at 13. The Board’s
findingsfurtherexplicitly state that “it may not deny Thornton the use and benefit of its water
rights . . .”Id.Thornton’s siting and development of a water transmission line for its water
rights does not impact irrigated farmland. The Board does not have authority to regulate the use
of Thornton’s property in Larimer County for purposes of Thornton’s 1041 application.
70.The Board determined to deny a 1041 permit to Thornton on Criteria 1 because
“much of the remainingwater in WSSC is also owned by municipalities” and “WSCC expects
that most of the water will be removed from Larimer County in the future.”“The Board’s
authority is limited to approving the siting and development of pipelines.” Exhibit 3,Findings at
13.The Board’s findings explicitly state that “it may not deny Thornton the use and benefit of
its water rights . . .”Id.Thornton’s siting and development of a water transmission line for
Thornton’s water rights does not impact other water or water users in the WSSC system. The
Board does not have authority to regulate the siting and development of Thornton’s proposal
basedon what other municipalities might do with their water rights or to lands within Larimer
County.
71.The Board determinedto deny a 1041 permit to Thornton on Criteria 1 because“a
significant reduction in the amount of irrigated farmland is concerning to the Board and conflicts
13
with the goals of the Master Plan” and “the long-term viability of Larimer County’s agricultural
communities, and the economic, cultural and environmental impacts of drying up irrigated
farmland are valid considerations under the Master Plan.”The planning director deemed
Thornton’s application complete without such information. The Board never asked for this
information. “The Board’s authority is limited to approving the siting and development of
pipelines.”Exhibit 3, Findings at 13. The Board’s findings explicitly state that “it may not deny
Thornton the use and benefit of its water rights . . .” Id.The Board does not have authority to
regulate the use of Thornton’s property in Larimer County for purposes of Thornton’s 1041
application. Thornton’s siting and development of a water transmission line does notaffect land
use and development goals under the Master Plan because the proposal has noimpact on
irrigated farmland.
72.The Board interprets Criteria 1 to allow it to, due to an application for the siting
and construction of an underground domestic water transmission line in a 50-foot permanent
easement, regulate the water source to be transmitted in the pipeline and Thornton-owned
properties in LarimerCounty. The Board’s regulatory authority over the location and
construction of a pipeline does not grant it authority to regulate or impose conditions on
Thornton’s source water or Thornton-owned properties or to mitigate potentialities not related to
thelocation or construction of a pipeline. “The Board’s authority is limited to approving the
siting and development of pipelines.” Exhibit 3, Findings at 13. The Board “may not deny
Thornton the use and benefit of its water rights . . .”Id.
Criteria2
73.Criteria 2 requires that Thornton present “reasonable siting and design alternatives
or explainedwhy no reasonable alternatives are available.” On its face, Criteria 2 is a general
requirement that Thornton provide a reasonable “siting” and “design” alternative. Thornton
presented details for two preferred options as well as siting and design alternatives for two other
options. Yet, contrary to the general language of Criteria 2, the Boardrequired exacting detail
for the alternatives. In addition, theBoardpoints to no competent evidence of the
unreasonableness of the siting and design of the pipeline options presented.
74.The Board’s determination to deny a 1041 permit to Thornton on Criteria 2
because Thornton presented a possibility of delivering itswater down the Cache la Poudre to its
council, a concept rejected by Thornton’s council 4years before filing its application, was
thoroughly explained on both legal and factual bases as to why it was not a reasonable
alternative. “The Board’s authority is limited to approving the siting and development of
pipelines.” Exhibit 3, Findings at 13. Delivery of Thornton municipal water down the Cache la
Poudre is not location and construction of a pipeline.Such concept does not afford Thornton the
use and benefit of its water rights. The Board “may not deny Thornton the use and benefit of its
water rights . . .”Id.
75.The Board’s determinedto deny a 1041 permit to Thornton on Criteria 2 because
it “was not convinced that \[the DR Route\] was the best option.”The Board’s role is to evaluate
whether the pipeline routesThornton presentedmet the 12 criteria. The criteria are nota license
for the Board to opineor speculate onoptions that are outside the Board’s authority.
14
76.The Board’s determination to denya 1041 permit to Thornton on Criteria 2
because the DR Route is a high traffic generator; the Thornton project would take 2-5 years to
complete in the DR Route; that there would be safety and emergency access conflicts during
construction; that there would be no guarantees that the construction would remain in the right-
of-way; and that area residents opposed widening Douglas Road,is arbitrary and capricious
because it is contrary to its own regulations and not supported by competent evidence.
77.The Board’s determined to deny a 1041 permit to Thornton on Criteria 2 because
the CR56 Route was “imprecise” because it is presented as a corridor and so “prevents
meaningful evaluation of the two alternatives” and so “Thornton should identify where the 50’
wide permanent easement will be located.” The corridor approach was encouraged and approved
by Larimer County staff. The Board never stated that the corridor approach was unacceptable.
The Board has approved other 1041 applications which used a corridor approach, including the
Roundhouse Renewable Energy Transmission Line Project 1041 Permit Application (Plan
Number: 18-ZONE2476) for a new overhead single-circuit, 230-kV transmission line
approximately 9.5 mile long in a 150 foot wide easement. The applicant there requested and
obtained approval of a 300-500 foot wide corridor.
78.The Board’s determinedto deny a 1041 permit to Thornton on Criteria 2 because
Thornton did not present the “Shields Street alternative” as a reasonable siting alternative. The
“Shields Street alternative” is a variation on the public/resident’s and Larimer County’s push for
Thornton to deliver its water down the Cache la Poudre. Thornton thoroughly explained on both
legal and factual bases as to why the “Shields Streetalternative” was not a reasonable alternative.
“The Board’s authority is limited to approving the siting and development of pipelines.” Exhibit
3, Findings at 13. Delivery of Thornton municipal water down the Cache la Poudre is not siting
and developmentof a pipeline. Such concept does not afford Thornton the use and benefit of its
water rights. The Board “may not deny Thornton the use and benefit of its water rights . . .”Id.
79.The Board’s determinedto deny a 1041 permit to Thornton on Criteria 2 by
vaguelyreferencing unidentified “positive attributes” of unreasonable siting and design
alternatives outside the Board’s authority and speculating that such “positive attributes” could be
combined with the routes rejected by the Board to satisfy other unspecified criteria. The Board’s
role is to evaluate whether the pipeline routes Thornton presented met Criteria 2. Criteria 2 is
not a license for the Board to generallyspeculate about whether some other proposal could
satisfy other unspecified criteria.
Criteria 3
80.Criteria 3 requires that Thornton’s proposal “conforms with adopted county
standards, review criteria and mitigation requirements concerning environmental impacts….”
The findings do not allege that Thornton’s proposal fails to conformto adopted county standards,
review criteria or mitigation requirements concerning environmental impacts.The Boardonly
speculatesonand speaks tofuture possible permitting obligationsfrom other agenciesor
agreements with other entities. At the same time, the Board acknowledges that Thornton will
meet these obligationsfinding “\[t\]here is no evidence that Thornton will not seek all necessary
permits and permissions and coordinate as needed at the relevant time.”Exhibit 3, Findings at
13.
15
81.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Wetland
Areasfor exactly the same reason as Larimer County staff determined that Thornton met this
portion of the criteria. SeeLarimer County staff reports referenced in Paragraphs37, 43 and 55.
82.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Wetland
Areas because a “Nationwide Permit from the Army Corps of Engineers (“Corps”) may be
required to confirm that no jurisdictional wetland areas are affected by construction.”This is not
a correct recitation of what is required. To confirm jurisdiction of wetland areas, a
“Jurisdictional Determination” or confirmation of “No Permit Required” is requested to confirm
whether the Corps asserts jurisdiction over wetland areas.
83.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Wetland
Areas because a “Nationwide Permit from the Army Corps of Engineers may be required to
confirm that no jurisdictional wetland areas are affected by construction.”This is incorrect as
pointed out in Paragraph 82,but even if it were correct, immediately preceding this conclusion,
the Board found that wetland areas that are affected by the proposal are non-jurisdictional. In
addition, the Board found that Thornton proposed to bore under all designated wetland areas.
Finally, the Board found “\[t\]here is no evidence that Thornton will not seek all necessary permits
and permissions and coordinate as needed at the relevant time.” Exhibit 3, Findings at 13.
84.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Hazard
Areas for exactly the same reason as Larimer County staff determined that Thornton met this
portion of the criteria. SeeLarimer County staff reports referenced in Paragraphs 37, 43 and 55.
85.The Board’s determinationto deny a 1041 permit to Thornton on Criteria 3
Hazard Areas because there are flood plains that Thornton proposes to bore under is arbitrary
and capricious because it is contrary to its own regulations and not supported by competent
evidence.
86.The Board’s determination to deny a 1041 permit to Thornton on Criteria 3
Wildlife because the Board is not convinced that Thornton’s mitigation plan “including
avoidance, seasonal limitations or prohibitions on activities is adequate” is arbitrary and
capricious because it is contrary to its own regulations and not supported by competent evidence.
87.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Irrigation
Facilities because “Thornton may be required to obtain agreements or licenses” associated with
construction activities involving irrigation ditches. The Board found “\[t\]here is no evidence that
Thornton will not seek all necessary permits and permissions and coordinate as needed at the
relevant time.” Exhibit 3, Findings at 13.
88.The Board’s determinationto deny a 1041 permit to Thornton on Criteria 3
Irrigation Facilities because the “Board would seek alternative alignments that eliminate or
reduce impacts on irrigation ditches” is arbitrary and capricious because it is contrary to its own
regulations and not supported by competent evidence.
16
89.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Air
Quality Standards for exactly the same reason as Larimer County staff determined that Thornton
met this portion of the criteria. SeeLarimer County staff reports referenced in Paragraphs 37, 43
and 55.
90.The Board determinedto deny a 1041 permit to Thornton on Criteria 3 Air
Quality Standards because Thornton will need to obtain an air quality permit.The Board found
“\[t\]here is no evidence that Thornton will not seek all necessary permits and permissions and
coordinate as needed at the relevant time.”Exhibit 3, Findings at 13.
91.The Board determined to deny a 1041 permit to Thornton on Criteria 3 Water
Quality Management Standards for exactly the same reason as Larimer County staff determined
that Thornton met this portion of the criteria. SeeLarimer County staff reports referenced in
Paragraphs 37, 43 and 55.
92.The Board determinedto deny a 1041 permit to Thornton on Criteria 3 Water
Quality Management Standards because Thornton will need to obtain a storm water quality
permit.The Board found “\[t\]here is no evidence that Thornton will not seek all necessary
permits and permissionsand coordinate as needed at the relevant time.”Exhibit 3, Findings at
13.
Criteria 4
93.Criteria 4 requires that Thornton’s proposal “will not have a significant adverse
affect on or will adequately mitigate significant adverse affects on the land on whichthe
proposal is situated and on lands adjacent to the proposal.” The logical meaning of this
provision focuseson “permanent” adverse effects rather than temporary effects during the
construction. The Boarddid not identifyany permanent“significant adverse \[e\]ffect” on “the
land on which the proposal is situated and on lands adjacent to the proposal” on either of the
preferred routes (DR Route or CR56 Route).
94.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]here will beadverse impacts to thirty-six properties on the east side of Reservoir 3 and 4.
Thornton’s application doesnot propose a route on the east side of WSSC Reservoir No. 4. On
the east side of WSSC Reservoir No. 3 there are eight properties.The Board’s finding implies
that construction of an underground pipeline within a purchased easement on private property is
an “adverse impact.” There is not competent evidence in the record supporting this conclusion.
Anytemporaryimpacts to the eight properties will be adequately mitigated.
95.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]here will be adverse impacts on eight homes and private properties along County Road 56 . . .
.” Any temporary impacts to these properties will beadequately mitigated.
96.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]here will be adverse impacts . . . on eight homes and private property in Eagle Lake.” These
are the same properties described in Paragraph 95.Any temporary impacts to the eight
properties will be adequately mitigated.
17
97.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]here will be typical construction impacts to vegetation in the project area or adjacent to the
pipeline. There will also be impacts on groundwater and drainage in the area of any bore or cut.”
The Board’s denial of the 1041 application on Criteria 4 on this basis is arbitrary and capricious
because it is contrary to its own regulations and not supported bycompetent evidence.
98.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]he pipelines will not be able to be installed solely within County public right-of-way. This
will necessitate acquisition of private property which may result in eminent domain
proceedings.” Thornton’s application seeks to locate and construct a single pipeline. The
Board’s determinationto deny a 1041 permit to Thornton on Criteria 4 because Thornton may
have to acquire some property by eminent domain exceeds its jurisdiction and is contrary to law.
99.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[n\]eighbors are unclear as to whether Thornton will acquire their property as an easement or as
a fee interest.” The record is clear and uncontroverted that Thornton would acquire easements in
all areas except where the pump station would be located. The record is clear and
uncontroverted that the landowner where the pump station would be located is aware that
Thornton seeks to acquire a fee interestin a portion of that propertyas well as a temporary
construction easement.
100.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]here are rattlesnakes in the area of the proposed CR 56 Route. These snakes will likely be
driven into adjacent subdivisions as a result of construction.” The Board’s denial of the 1041
application on Criteria 4 is arbitrary and capricious because it is contrary to its own regulations
and not supported by competent evidence.
101.TheBoard determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[n\]oise and visual impacts from the pumphouse are of concern.” Thornton objected to inclusion
of the pump station as part of the 1041 application in a June 29, 2018 Statement because of
Larimer County’s lack of authority to regulate the pump station under its 1041 regulations.
Nevertheless, Thornton demonstrated that the pump station would comply with all Larimer
County regulations concerning noise and visual impacts.
102.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[w\]ell established trees exist along the east side of Reservoir 4. These trees will be lost or their
health threatened as a result of construction. These impacts will significantly impair residents'
quality of life and use of their properties.” Thornton’s application does not propose a route on
the east side of WSSC Reservoir No. 4. Zero trees along the east side of WSSC Reservoir No. 4
will be impacted by Thornton’s proposal.
103.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]he Douglas Road route would require an unreasonably lengthy construction cycle, up to four
years, which neighbors of the route testified would cause significant disruption to their homes
and daily lives.” There was ample evidence in the record that Thornton was going to take all
18
reasonable steps to accommodate residents during construction and ensure that safety concerns
were addressed. The Board’s denial of the 1041 application on Criteria 4 is arbitrary and
capricious because it is contrary to its own regulations and not supported by competent evidence.
104.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]raffic detours along this route \[DR Route\] wouldfunnel additional traffic to some
intersections that are already overburdened. The added detour traffic would further degrade the
function of these intersections to an unacceptable level.” The Board’s denial of the 1041
application on Criteria 4 is arbitrary and capricious because it is contrary to its own regulations
and not supported by competent evidence.
105.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“the CR 56 route will have a greater detrimental impact on private property because less public
right of way is available.” The Board’s finding impliesthat construction of an underground
pipeline within a purchased easement on private property is “detrimental.” The Board’s denial
of the 1041 application on Criteria 4 is arbitrary and capricious because it is contrary to its own
regulations and not supported by competent evidence.
106.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“as the pipeline moves north \[on the CR56 Route\] from Reservoir No. 4, the Braidwood
Neighborhood and Eagle Lake neighborhoods will suffer significant disruption to private
property.”This is not a finding that Thornton’s proposal would have significant adverse affect
on the Braidwood or Eagle Lake neighborhoods or that if there were a significant adverse affect
Thornton’s proposal would not adequately mitigate such affect.
107.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[f\]urther along this route \[CR56 Route\], a private property will be bisected by the pipeline
between the house and the barn.” The uncontroverted evidence is that Thornton expanded its
corridor on this property specifically to facilitate an alignment that doesnotgo between the
house and barn.
108.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[t\]he sheer size and uncertainty of the proposed 500' to ¼ mile wide corridor prevents the Board
and private property owners from reasonably considering all impacts. This uncertainty is, in
itself, a significant impact of this project.” The corridor approach was encouraged and approved
by Larimer County staff. The Board never stated that the corridor approach was unacceptable.
The Board has approved other 1041 applications which used a corridor approach, including the
Roundhouse Renewable Energy Transmission Line Project 1041 Permit Application (Plan
Number: 18-ZONE2476) for a new overhead single-circuit, 230-kV transmission line
approximately 9.5 mile long in a 150 ft wide easement. The applicant thererequested and
obtained approval of a 300-500 ft wide corridor.
109.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
Thornton did not propose to use lake taps to tunnel portions of the pipeline under certain
reservoirs.The Board made no finding that Thornton’s proposal would have significant adverse
affect on the Braidwood and Eagle Lake neighborhoods, much less to justify the costs and
19
inherent risks of lake tap construction. The Board made no finding that if Thornton’s proposal
would have a significant adverse affect Thornton’s proposal would not adequately mitigate such
affect without using lake taps. In addition, even assuming that temporary construction impacts
are a “significant adverse affect,” the Board failed to justify cost and inherent risks of lake tap
construction against the mitigation in Thornton’s proposal for temporary construction impacts.
110.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“Thornton’s application addresses a single 48" water pipeline, however, two additional pipelines
are part of Thornton's overall project plan.” Thornton’s Decree contemplates a three phase
approach to utilizing the water rights decreed therein but does not require Thornton to implement
such phases simultaneously or at any particular point in time. Thornton’s proposal and “project
plan” at issue before the Board is for a single pipeline as stated in the application. The Board
speculatesthat because Thornton’sDecree contemplates a three phase approachthat Thornton’s
application for a single pipeline “deprives the Board and public of the opportunity to consider
cumulative impactsand the effectiveness of mitigation.” The planning director deemed
Thornton’s application complete without such information.The Board’s denial of the 1041
application on Criteria 4 exceeds its jurisdiction, is contrary to law, is arbitrary and capricious
because it is contrary to its own regulations and not supported by competent evidence.
111.The Board determined to deny a 1041 permit to Thornton on Criteria 4 because
“\[a\]n important factor in Thornton preferring the CR 56 route over the previously preferred
Douglas Road route is that Douglas Road may be insufficient for co-location of multiple
pipelines.” At the direction of Larimer County, Thornton evaluatedwhether Thornton’s pipeline
and NISP’s pipeline could be co-located in Douglas Road. Thorntonpresented uncontroverted
evidence that Thornton’s pipeline and NISP’s pipeline could be co-located in Douglas Road.
Thornton considered and balanced impacts versus benefits of co-locating Thornton’s pipeline
and NISP’s pipeline in Douglas Road and selected the CR56 Route as a less impactful route to
co-locate these two pipelines. However, it remained an option to the Board to permit Thornton’s
pipeline alone in Douglas Road, or to allow Thornton’s pipeline and NISP’s pipeline tobe co-
located in Douglas Road.
Criteria6
112.Criteria 6 requires that the proposal “will not negatively impact public health and
safety.”The Board stated that Thornton’s proposal did not meet Criteria 6. The Board provided
noverbal rationale as to why Thornton’s proposal did not meetCriteria 6. There is no competent
evidence of anypermanent negative impacts on either the DR Route or the CR56 Route.
113.There was ample evidence in the record that Thornton was going to take all
reasonable steps to accommodate residents during construction and ensure thatpublic health and
safety concerns were addressed. The Board’s written determination to deny a 1041 permit to
Thornton on Criteria 6 because residents adjacent to Douglas Road spoke of safety concerns
related to limited access from their neighborhood and a potential delay of emergency services is
arbitrary and capricious because it is contrary to its own regulations and not supported by
competent evidence.
20
114.The Board’s written determination to deny a 1041 permit to Thornton on Criteria
6 because one person expressed a concern about being exposed to strangers and equipment on
private property is arbitrary and capricious because it is contrary to its own regulations and not
supported by competent evidence.
115.The Board’s written determinationdoes not find or conclude that Thornton did
not meet Criteria 6 for the CR56 Route.
Criteria10
116.Criteria10 requires thatthe“benefits of the proposed development outweigh the
losses of any natural resources or reduction of productivity of agricultural lands as a result of the
proposed development.”
117.The Board’s findings explicitly state that the “benefits of Thornton’s proposal are
also significant, as clean and sufficient water supply is of critical importance.” Exhibit 3,
Findings at 12.
118.The Board did not find that Thornton’s proposal would result in the losses of any
natural resources.
119.The Board’s assertion that Thornton purchased approximately21,000acres in
Larimer County is not supported by competent evidence. Thornton purchased 1,766 acres of
land in Larimer County. Thornton currently holds 1,590 acres in Larimer County.To the extent
the Board determined that Thornton’s proposal would cause significant reduction to the
productivity of agricultural lands in Larimer Countyas a whole, the Board’s denial is not
supported by competent evidence.
120.To the extent the Board determined to deny a 1041 permit to Thornton on Criteria
10 because it believes Thornton’s proposal will cause significant reduction in the productivity of
Thornton owned properties within Larimer County, “\[t\]he Board’s authority is limited to
approving the siting and development of pipelines.” Exhibit 3, Findings at 12. In addition, the
Board recognizes that “it may not deny Thornton the use and benefit of its water rights . . .” Id.
The Board does not have authority to regulate the use of Thornton’s land or water rights in
Larimer County for purposes of Thornton’s 1041 application.
121.The Board determined to deny a 1041 permit to Thornton on Criteria 10 because
“Thornton’s proposal will cause significant reduction in the productivity of agricultural lands
within Larimer County.” Larimer County’s 1041 regulation LUC14.4.J.,is for the siting and
development of domestic water transmission lines in certain sized easements.“The Board’s
authority is limited to approving the siting and development of pipelines.” Exhibit 3, Findings at
13.The undisputed evidence before the Board is that the impact to productivity of agricultural
lands due to the location and construction of Thornton’s proposal is limited to the area of the
temporary and permanent easement. The undisputed evidence before the Board is that such
impacts are temporary. The undisputed evidence before the Board is that any temporary impacts
caused by Thornton’s proposal to affected landowners will be compensated for and that once
21
construction is complete, the land over the pipeline will be restored and landowners can continue
to usesuch landfor agricultural purposes.
122.The Boardinterprets Criteria 10to allow it to, due to the siting and construction
of an underground domestic water transmission linein a 50-foot permanent easement,go beyond
the temporary physical impacts on agricultural lands caused by construction activity and instead
considerwhether the water source to be transmitted in the pipeline may potentially causea
reduction of productivity ofThornton-owned propertiesin Larimer County.“The Board’s
authority is limited to approving the siting and development of pipelines.” Exhibit 3, Findings at
13.In addition, the Board recognizes that “it may not deny Thornton the use andbenefit of its
water rights . . .”.Id.The Board’s regulatory authority over the location and construction of a
pipeline does not grant it authority to regulate or impose conditions on Thornton’s source water
or Thornton-owned properties.
123.The Board interprets Criteria 10 to allow it to, due to the siting and construction
of an underground domestic water transmission line in a 50-foot permanent easement, go beyond
addressing mitigation for temporary physical impacts on agricultural lands caused by
construction activity and instead, as the result of the water source to be transmitted in the
pipeline, require mitigation for economic, cultural and social consequences of a potential
reduction of productivity of Thornton-ownedproperties.“The Board’s authority is limited to
approving the siting and development of pipelines.” Exhibit 3, Findings at 13. In addition, the
Board recognizes that “it may not deny Thornton the use and benefit of its water rights . . . ”.Id.
The Board’s regulatory authority over the location and construction of a pipeline does not grant
it authority to regulate or impose conditions on Thornton’s source water or Thornton-owned
propertiesor to mitigate supposed issues not related to the location or construction of a pipeline.
124.Thornton’s Decree sets forth the terms and conditions related to Thornton’s
obligations regarding its use of agricultural lands within Larimer County. Thornton’s Decree
specifically approveda change to Thornton’s agricultural water to be used for municipal use, and
requires that for Thornton to use this water, Thornton-owned lands must be revegetated under
stringent requirements or put into other non-irrigated use. “The Board’s authority is limited to
approving the siting and development of pipelines.” Exhibit 3, Findings at 13. The Board has no
authorityto alter the terms and conditions of Thornton’s Decree.
Criteria11
125.Criteria 11 requires that the “proposal demonstrates a reasonable balance between
the costs to the applicant to mitigate significant adverse affects and the benefits achieved by such
mitigation.” There is no competentevidence in the record of any permanent, adverse effectsof
Thornton’s proposal.Consequently, the balance necessarily strikes in Thornton’s favor on this
criteria before even considering the costs of mitigation.
126.The Board’s reference to an undefined “improved alignment” and“other
alternative routes” arethinly veiled references to the Board’s belief that it can require that
Thornton use the Cache la Poudre Riveras a conduit to transport its water and somehow pick it
up below Fort Collins, rather than address the siting and development of a pipeline, which is the
issue before the Board in Thornton’s1041 permit application.“The Board’s authority is limited
22
to approving the siting and development of pipelines.” Exhibit 3, Findings at 13. Delivery of
Thornton municipal water down the Cache la Poudre is not location and construction of a
pipeline. Such concept does not afford Thornton the use and benefit of its water rights. The
Board “may not deny Thornton the use and benefit of its water rights . . .”.Id.
127.The Board found that “\[t\]he benefits of Thornton’s proposal are also significant,
as cleanand sufficient water supplyis of critical importance.” Exhibit 3, Findings at 12.The
Board’s finding that “there would be less degradation of the water through Fort Collins than
through the Denver metro area is not supported by competent evidence. The Board’s finding that
“there would be less degradation of the water through Fort Collins . . .” impliesthat,if the Board
could require Thornton touse the Cache la Poudre River as a conduit to transport its water and
somehow pick it upbelow Fort Collins, as opposed to delivering it via pipeline from WSSC
Reservoir No. 4, there would be degradation to what the Board just found to be Thornton’s
critically important clean water source.Requiring Thornton to purposefully degrade its water
quality would deny Thornton the use and benefit of its water rights. The Board “may not deny
Thornton the use and benefit of its water rights . . .”.Exhibit 3, Findings at 13.
128.The Board does not have authority to require that Thornton deliver its water down
the Cache la Poudre. The Board’s “authority is limited to approving the siting and development
of pipelines.” Exhibit 3, Findings at 13. Moreover, Thornton thoroughly explained on both legal
and factual bases as to why this idea is not a reasonable alternative to a pipeline.
129.The Boarddeniedthe 1041 application on Criteria 11 because it determined that
the cost to Thorntonof not having a pipeline in Larimer Countyin orderto mitigate no identified
adverse affects, much less significant adverse affects, because of the pipeline, is a reasonable
balanceagainst thecost to Thorntonto:
a) try to overcome myriad legal and physical challenges required to deliver its
water down the Cache la Poudre River and pick it up below Fort Collins (including
required changes to its Decree); and
b) assuming those issues could be overcome, to then be left with:
i) less water;and
ii) lower quality water(with its associated increased treatment costs) than
Thornton is currently legally entitled to receive under its Decree.
130.RequiringThornton to purposefully degrade its water quality deniesThornton the
use and benefit of its water rights. The Board “may not deny Thornton the use and benefit of its
water rights . . .”. Exhibit 3, Findings at 13. Requiring Thornton to use the Cache la Poudre as a
conduit for its municipal water supply as a claimed reasonable balance against locating and
constructing a pipeline in Larimer CountydeniesThornton the right to locate and construct a
pipeline in Larimer County. The Board has the power to regulate, but not to prohibit Thornton
the right to locate and construct a pipeline in Larimer County.
131.The Board denied the1041 application on Criteria 11 determining that if
Thornton delivered its water down the Cache la Poudre, that Thornton would receive “water of
sufficient quality and quantity.” The Board’s “authority is limited to approving the siting and
development of pipelines.” Exhibit 3, Findings at 13. The Board “may not deny Thornton the
23
use and benefit of its water rights . . .”. Id.The Board exceeds its authority insubstituting its
judgment for that of Thornton’s on the sufficiency of the quantity and quality of water to be
provided by Thornton to the people of the state.
132.The Board’s determination to deny a 1041 permit to Thornton on Criteria 11
because other unspecified alternative routes may result in fewer adverse impacts to the County
which would reduce or equal the costs of mitigating unspecified impacts to the CR56 Route or
DRRoute is arbitrary and capricious because it is contrary to its own regulations and not
supported by competent evidence.
The Board’s Misinterpretation and Misapplication of the Act
133.The Board’s findings, truncating several portions of § 24-65.1-204, C.R.S., state
that “components of water facilities ‘shall be constructed in areas which will result in the proper
utilization of existing treatment plants and the orderly development of domestic water systems .
. . of adjacent communities;’ and ‘emphasize the most efficient use of water . . . including
recycling and reuse of water.’” Larimer County did not adopt site selection of new or major
extension of domestic water treatment systems to regulateto which these administrative criteria
apply. Consequently, the focus must be on the narrow activity of state interest Larimer County
did adopt.
134.The Board adopted a narrow subset being the siting and development of new or
extended domestic water transmission lines in certain sized easements, seeExhibit 5, LUC
14.4.J.
135.§ 24-65.1-204(1)(a), C.R.S. provides: “new domestic water . . . systems shall be
constructed in areas which will result in the proper utilization of existing treatment plants and the
orderly development of domestic water. . . systems of adjacent communities.” This statutory
administration criteria does not apply to Larimer County’s LUC 14.4.J. “The Board’s authority
is limited to approving the siting and development of pipelines.” To the extent that the Board is
asserting jurisdiction over “the proper utilization of existing treatment plants” or “orderly
development of . . . systemsof adjacent communities”, through Thornton’s pipeline application,
the Board exceeds its jurisdiction.
136.§ 24-65.1-204(8), C.R.S. provides: “Municipal . . . water projects shall emphasize
the most efficient use of water, including to the extent permissible under existing law, the
recycling and reuse of water.” This statutory administration criteria does not apply to Larimer
County’s LUC 14.4.J. “The Board’s authority is limited to approving the siting and development
of pipelines.” To the extent that theBoard is asserting jurisdiction over Thornton’s water
system, through Thornton’s pipeline application, the Board exceeds its jurisdiction.
The Board Exceeded its 1041 Authority/Jurisdiction
137.The Act prohibits the diminishment or the enhancement of the rights of property
owners.
24
138.The Act prohibits modifying or amending existing laws or court decrees with
respect to the determination and administration of water rights.
139.The Act requires regulations to be promulgated that relate to the specific activities
ofstate interest implemented.
140.Throughout the process, the Planning Commission,Boardand public focused
heavily on demanding that Thornton deliver its water down the Cache la River or down the
Larimer County Canal.The Board considered that it had the authority to require that Thornton
be required to send its water down the Cache la Poudre river rather than deliver it by pipeline
through Larimer County.The Board used this belief as a basis to deny Thornton’s 1041
application. The Board’s denial on this basis unlawfully: 1) diminishes Thornton’s property
rights and enhances the property of others under the Act; and 2) modifies or amends existing
laws or court decrees with respect to the determination and administration of water rightsunder
the Act. Moreover, the Board’s interpretation of its regulations to allow itsuch authorityis
unlawfulbecausesuch regulations are not included in or even rationally related to the specific
activity of state interest adopted by the Board under the Act, the sitingand development of water
pipelines.The Board’s denial of Thornton’s 1041 application on this basis exceeded its authority
and jurisdiction under the Act and its own regulations.
141.The Board determinedto deny a 1041 permit to Thorntonbecause of concerns
related to the impacts of irrigated farmland turning to dryland based on either Thornton’s use of
its own water rights and property or other municipalities’use of their water rights or property.
The Board’s denial on this basis unlawfully: 1) diminishes Thornton’s property rights and
enhances the rights of others under the Act; and 2) modifies or amends existing laws or court
decrees with respect to the determination and administration of water rightsunder the Act.
Moreover, the Board’s interpretation of its regulations to allow it such authority is unlawful
because such regulations are not included in or even rationally related to the specific activity of
state interest adopted by the Board under the Act, the siting and developmentof water pipelines.
The Board’s denial of Thornton’s 1041 application on this basis exceeded its authority and
jurisdiction under the Act and its own regulations.
142.The Board determinedto deny a 1041 permit to Thornton because Thornton may
have to acquire some property by eminent domain.The Board’s denial on this basis unlawfully
diminishes Thornton’s property rights and enhances the rights of others under the Act.
Moreover, the Board’s interpretation of its regulations to allow it the authority to deny the power
of eminent domainis unlawful because such regulations are not included in or even rationally
related to the specific activity of state interest adopted by the Board under the Act, the siting and
development of water pipelines.The Board’s denial of Thornton’s 1041 application on this basis
exceeded its authority and jurisdiction under the Act and its own regulations.
143.The Boarddetermined to deny a 1041 permit to Thornton because Thornton’s
Decree contemplates a three phase approach to utilizing the water rights decreed. The Board
determined that because the Decree contemplates a three phase approach that Thornton’s
application for a single pipeline “deprives the Board and public of the opportunity to consider
cumulative impacts and the effectiveness of mitigation.” The Board’s interpretation of its
25
regulations to allow it the authority to require Thornton to bring more than the single pipeline
proposal before the Boardis unlawful because such regulations are not included in or even
rationally related to the specific activity of state interest adopted by the Board under the Act, the
siting and development of water pipelines. The Board’s denial of Thornton’s 1041 application
on this basis exceeded its authority and jurisdiction under the Act and its own regulations.
144.The Board determined to deny a 1041 permit to Thornton because, over
Thornton’s objection, it considered the pump station to be a required part of Thornton’s 1041
application and found that “\[n\]oise and visual impacts from the pumphouse are of concern.” The
Board’s denial on this basis unlawfully diminishes Thornton’s property rights under the Act.
Moreover, the Board’s interpretation of its regulations to allow it such authority is erroneous.
The Board’s denial of Thornton’s 1041 application on this basis exceeded its authority and
jurisdiction under the Act and its own regulations.
FIRST CLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abuse of Discretion)
145.Thornton incorporatesinto this claim for relief all of the allegations made
elsewhere in this Complaint.
146.The request for a pipeline and the approval of a 1041 Permit are all judicial or
quasi-judicial actions by the Board.
147.The Boardfailed to follow its own regulations in denying the 1041 application
and failed to rely on competent evidence. Therefore, it acted arbitrarily and capriciously.
148.Thornton hasno other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.Moreover, given the extraordinary
information provided to the Board and the passage of nearly a year, Thornton would suffer
substantial prejudice if this matter was remanded for the Board to considerroutes other than the
either the DR Route or the CR56 Route, for which exhaustive and exacting information has been
provided,for the siting and development of Thornton’s proposal. Accordingly, Thornton asks
this court to overturn Larimer County's decision and, either itself approve or require that the
Board approve either the DR Route or the CR56 Route for the siting and development of
Thornton’s proposal.
SECOND CLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdiction)
149.Thorntonincorporatesinto this claim for relief allof the allegations made
elsewhere in this Complaint.
150.The Boardmade demands that fell outside of the authority granted by the 1041
Regulations.
26
151.Thornton hasno other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.Moreover, given the extraordinary
information provided to the Board and the passage of nearly a year, Thornton would suffer
substantial prejudice if this matter was remanded for the Board to consider routes other than the
either the DR Route or the CR56 Route, for which exhaustive and exacting information has been
provided,for the siting and development of Thornton’s proposal. Accordingly, Thornton asks
this court to overturn Larimer County's decision and, either itself approve or require that the
Board approve either the DR Route or the CR56 Route for the siting and development of
Thornton’s proposal.
THIRD CLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abused its Discretion as to a Down the Cache
la Poudre River Alternative)
152.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
153.The Board misconstrued its own regulations by including a down the Cache la
Poudre alternativein the 1041 hearingprocess and, therefore, acted arbitrarily and capriciously.
154.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
FOURTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdictionas aDown the Cache la
Poudre River Alternative)
155.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
156.The Board lacked authority to reviewa down the Cache la Poudre alternative as
part of the 1041.
157.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
FIFTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abused its Discretion to try to Regulate
Thornton’s or Other Municipalities’ Use of Water Rights or Property in Larimer County)
158.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
159.The Board misconstrued its own regulations determining it can regulate
Thornton’s or other municipalities’ use of water rights or property in Larimer County through
27
Thornton’s 1041 application to site and develop a water pipelineand, therefore, acted arbitrarily
and capriciously.
160.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
SIXTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdictiontotry to Regulate
Thornton’s or Other Municipalities’ Use of Water Rights or Property in Larimer County)
161.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
162.The Board lacked authority to determineit can regulate Thornton’s or other
municipalities’ use of water rights or property in Larimer County through Thornton’s 1041
application to site and develop a water pipeline.
163.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
SEVENTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abused its Discretion to Require Thornton to
Bring Forth Possible Future Pipelines as Part of its 1041 Application)
164.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
165.The Board misconstrued its own regulations determining it canrequire Thornton
to bring forth possible future pipeline proposals as part of its 1041 application for a single
pipelineand, therefore, acted arbitrarily and capriciously.
166.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
EIGHTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdictionto Require Thornton to
Bring Forth Possible Future Pipelines as Part of its 1041 Application)
167.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in thisComplaint.
168.The Board lacked authority to determine it can require Thornton to bring forth
possible future pipeline proposals as part of its 1041 application for a single pipeline.
169.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
28
NINTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abused its Discretionto deny Thornton the
Power of Eminent Domain)
170.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
171.The Board misconstrued its own regulations determining it can denyThornton’s
right to exercise the power of eminent domain through Thornton’s 1041 application to site and
develop a water pipelineand, therefore, acted arbitrarily and capriciously.
172.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
TENTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdictiontodeny Thornton the
Power of Eminent Domain)
173.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
174.The Board lacked authority to determinethat because Thornton might exercise its
power of eminent domain it can denyThornton’s 1041 application to site and develop a water
pipeline.
175.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
ELEVENTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Abused its Discretion as to The Pump Station)
176.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
177.The Board misconstrued its own regulations by including the pump station in the
1041 application process and, therefore, acted arbitrarily and capriciously. Furthermore,
assuming arguendo that the pump station could be considered under the 1041 regulations, the
basis for its denial lacks competent evidence.
178.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
29
TWELFTHCLAIM FOR RELIEF
(Judicial Review under C.R.C.P. 106(a)(4): Exceeding Jurisdictionas to The Pump
Station)
179.Thornton incorporates into this claim for relief all of the allegations made
elsewhere in this Complaint.
180.The Board lacked authority to review the pump station as part of the 1041.
181.Thornton has no other plain, speedy and adequate remedy otherwise provided by
law; therefore, Thornton is entitled to relief under Rule 106.
THIRTEENTHCLAIM FOR RELIEF
(Declaratory Judgmentpursuant §13-51-101C.RS. et seq. and C.R.C.P. 57; Colo. Const.
Art. III)
182.Thornton incorporatesinto this claim for relief all of the allegations in the
preceding paragraphs.
183.The Boardmisconstrued its criteria and the scope of its powers under the 1041
Act in denying Thornton’s 1041 application.
184.Thornton is entitled to the Court’s determinations and declarations that Thornton
complied with the 1041 criteria.A ruling from the court will resolve a current dispute.
185.Thornton hasno other plain, speedy and adequate remedy otherwise provided by
law;therefore, Thornton is entitled to declaratory relief.
WHEREFORE, Thornton respectfully request that the Court grant the following relief:
A.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciouslyin denyingThornton’s request for a 1041 permit to construct either
the DR Route or the CR56 Route, for which exhaustive and exacting information has been
provided, for the siting and development of Thornton’s proposal;
B.Find and declare that the Larimer County Board of County Commissioners
exceeded its authority in denying Thornton’s request for a 1041 permit to construct either the DR
Route or the CR56 Route, for which exhaustive and exacting information has been provided, for
the siting and development of Thornton’s proposal;
C.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciously in ruling that it has authority to require adown the Cache la Poudre
alternative in the 1041 hearing process;
30
D.Find and declare that the Larimer County Board of County Commissioners
exceeded its jurisdiction in ruling that it has authority to require a down the Cache la Poudre
alternative as part of Thornton’s 1041application;
E.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciously in ruling that it can regulate Thornton’s or other municipalities’ use
of water rights or property in Larimer County through Thornton’s 1041 application;
F.Find and declare that the Larimer County Board of County Commissioners
exceeded its jurisdiction in ruling that it can regulate Thornton’s or other municipalities’ use of
water rights or property in Larimer County through Thornton’s 1041 application;
G.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciously in ruling that it could require Thornton to bring forth possible future
pipeline proposals as part of its 1041 application for a single pipeline;
H.Find and declare that the Larimer County Board of County Commissioners
exceeded its jurisdiction in ruling that that it could require Thornton to bring forth possible future
pipeline proposals as part of its 1041 application for a single;
I.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciously in ruling that it can deny Thornton’s 1041 application because
Thornton may have to exercise its power of eminent domain;
J.Find and declare that the Larimer County Board of County Commissioners
exceeded its jurisdiction in ruling that that it can deny Thornton’s 1041 application because
Thornton may have to exercise its power of eminent domain;
K.Find and declare that the Larimer County Board of County Commissioners acted
arbitrarily and capriciously in ruling that Thornton could not construct a pumpstation;
L.Find and declare that the Larimer County Board of County Commissioners
exceeded its jurisdiction in ruling that Thornton could not construct a pumpstation;
M.Award Thornton its reasonable attorneys’fees and costs; and
N.Grant such other and further relief as the Court may deem just and proper.
31