HomeMy WebLinkAbout2021CV30425 - Save The Poudre And No Pipe Dream Coporation V. Northern Colorado Water Conservancy District, Northern Integrated Supply Project Water Activity Enterprise, The City Of Fort Collins - 007 - Response To Motion For Preliminary InjunctionLarimer County District Court
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
COURT USE ONLY
SAVE THE POUDRE, and
NO PIPE DREAM CORPORATION
Plaintiffs
v.
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
PAUL SIZEMORE, in his official capacity as Interim
Director of the City of Fort Collins Community Development
& Neighborhood Services Department,
NORTHERN INTERGRATED SUPPLY PROJECT
WATER ACTIVITY ENTERPRISE.
Defendants.
Attorneys for Northern Integrated Supply Project Water
Activity Enterprise:
Bennett W. Raley, #13429
Peggy E. Montaño, #11075
William Davis Wert, #48722
Mirko L. Kruse, #52488
TROUT RALEY
1120 Lincoln Street, Suite 1600
Denver, CO 80203
Telephone: (303) 861-1963
FAX Number: (303) 832-4465
email: braley@troutlaw.com, pmontano@troutlaw.com,
dwert@troutlaw.com, mkruse@troutlaw.com
Case No. 21CV30425
DEFENDANT NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY
ENTERPRISE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION AND REQUEST
FOR EMERGENCY HEARING
Defendant Northern Integrated Supply Project Water Activity Enterprise (“NISP
Enterprise”), by and through its undersigned attorneys, hereby responds to Plaintiffs’ Motion for
Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency Hearing
DATE FILED: June 18, 2021 5:21 PM
FILING ID: 8450A567E9FEE
CASE NUMBER: 2021CV30425
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filed in this case on June 9, 2021 (“Motion for Preliminary Injunction”). The NISP Enterprise
requests that the Court deny Plaintiffs’ Motion for Preliminary Injunction.
INTRODUCTION
The NISP Enterprise filed a land use application before the City of Fort Collins’ Planning
and Zoning Commission (“the Planning Commission”) for review of two local components of a
proposed regional water supply project. Through their Motion for Preliminary Injunction,
Plaintiffs effectively seek to delay a decision on that application, which the NISP Enterprise is
entitled to by statute within 60 days of the application being filed.
Plaintiffs fall well short of demonstrating the need for their requested relief under the
applicable standard set forth in Rathke v. Macfarlane. Plaintiffs face no threat of immediate and
irreparable harm. The NISP Enterprise will not begin construction on this project until 2023 and
Plaintiffs will have an opportunity to challenge this land use review under C.R.C.P. 106 once the
Planning Commission issues its final determination. Equally significant, Plaintiffs claims rely on
particularly strained interpretations of state statutes and the City of Fort Collins’ Land Use Code.
Plaintiffs ask this Court to intervene into a local government’s ongoing quasi-judicial
process, upsetting the normal course of those proceedings and effectively preventing the Planning
Commission from discharging its duties.1 The Court should avoid unnecessary intervention and
deny Plaintiffs’ Motion for Preliminary Injunction.
1 Plaintiffs pursued a similar tact during the NISP Enterprise’s application for a land use permit
from Larimer County. Judge Jouard denied Plaintiffs’ motion for a preliminary injunction and
dismissed Plaintiffs’ complaint on multiple grounds for failure to state a claim. See Order Granting
Defendant County Commissioners’ and Defendant NISP’s Motions to Dismiss Plaintiffs’
Complaint and Motion for Preliminary Injunction, 20CV30419 (Aug. 10, 2020). Plaintiffs have
since appealed and that appeal is pending.
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STATEMENT OF FACTS
I. The Northern Integrated Supply Project.
The Northern Integrated Supply Project is a water supply project proposed by the NISP
Enterprise. It would bring two new reservoirs to Northern Colorado, supplying fifteen Northern
Front Range water providers with 40,000 acre-feet of new reliable water supplies annually.
Motion for Preliminary Injunction, Ex. 2 at 1.
NISP spans several counties and consists of multiple components—all of which are subject
to other state and federal permitting requirements that are not at issue in this dispute. See generally
id., Ex. 2. The NISP Enterprise has obtained several of these permits and approvals and anticipates
receiving its last needed federal approval later in 2021. See id., Ex. 2 at 24-25.
II. Fort Collins’ “SPAR” Land Use Process.
Section 31-23-209, C.R.S. requires public projects proposed within a municipality’s
boundaries to undertake a “location, character, and extent” review by the municipality’s planning
commission. The planning commission must render a decision within 60 days or the application
is deemed approved. § 31-23-209. If the planning commission disapproves of the proposed
project, the governmental body of the public entity authorizing the project can overrule the
disapproval. Id.
To implement this statute, the City of Fort Collins (“City” or “Fort Collins”) adopted its
Site Plan Advisory Review (“SPAR”) process. See Fort Collins Land Use Code [hereinafter
“LUC”] §§ 2.1.3(E)(2), 2.16.2(G); Plaintiffs’ Complaint [hereinafter “Compl.”], Ex. 3. at 2. Under
SPAR, the Planning Commission assesses whether a proposed public project meets siting and
design standards and considers what potential impacts it poses. LUC § 2.16.2(H). This assessment
is for advisory purposes only, and consistent with section 31-23-209, any disapproval by the
Planning Commission can ultimately be overruled by the governmental body of the public entity
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proposing the project. Id., § 2.16.2(L).
III. The NISP Enterprise’s SPAR Application.
Only two components of the Northern Integrated Supply Project are located within Fort
Collins city limits and require the Planning Commission to review these components under SPAR.
See Compl., Ex. 1 at 3 & Ex. 12 at 1. Those components are an intake structure from the Poudre
River and a pipeline that will run through Fort Collins city limits (“the Poudre Intake and
Pipeline”). Id.
In February of 2021, the NISP Enterprise began the first step of the SPAR process,
submitting an application to the Fort Collins Community Development and Neighborhood
Services Division (“the Division”)—a staff level subdivision of the Planning Commission—for a
“conceptual review” of the Poudre Intake and Pipeline. Ex. A. Conceptual review is a preliminary
step in the SPAR process that provides the Division an opportunity to discuss the requirements,
standards, and procedures applicable to the development proposal. See LUC, §§ 2.16.2(A),
2.2.1(A). In March, the Division provided comments to the NISP Enterprise’s conceptual review
application, including the determination that SPAR was the applicable land use process to review
the Poudre Intake and Pipeline. Ex. B at 1. Then in April, counsel for Plaintiff Save the Poudre
submitted a letter to now-defendant Paul Sizemore as Interim Director of the Division. Compl.,
Ex. 2. That letter requested a formal interpretation, pursuant to section 1.4 of the LUC, as to
whether SPAR is the proper land use process to review the Poudre Intake and Pipeline. Id. The
letter asserted several reasons why Save the Poudre believed the SPAR process was not applicable,
including because (1) the NISP Enterprise did not yet own the parcels upon which the Poudre
Intake and Pipeline would be constructed (as Save the Poudre believed was required under SPAR)
and (2) the NISP Enterprise was not the type of governmental body that the SPAR process applies
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to. Id. On May 5th, the Division issued Administrative Interpretation #3-21, responding to Save
the Poudre’s request. Compl., Ex. 3. The Division rejected Save the Poudre’s reasoning,
concluding that SPAR was the applicable process. Id. Upon information and belief, Save the
Poudre did not appeal that decision.
The NISP Enterprise submitted its formal SPAR application to the Division on May 5th,
consisting of maps, plans, studies, and reports relating to Poudre Intake and Pipeline. Compl., Ex.
4.
Under SPAR, the Planning Commission will assess the Poudre Intake and Pipeline under
the City’s siting, design, and impacts standards, and the Planning Commission must render its
decision by July 4,, 2021. See LUC § 2.16.2(G), (H). To that end, a hearing before the Planning
Commission is scheduled on June 30th in which the public may attend and provide comments.
Compl, Ex. 1. Once the Planning Commission renders its decision, any disapproval may be
overruled by the NISP Enterprise. See LUC, § 2.16.2(L); § 31-23-209.
IV. Procedural Background.
Plaintiffs filed this declaratory judgment action under C.R.C.P. 57 just three weeks from
the scheduled public hearing before the Planning Commission. See Compl. & Compl., Ex. 1.
Plaintiffs claim that SPAR is not the appropriate land use process under the LUC and section 31-
23-209 to review the Poudre Intake and Pipeline. Compl., ¶¶ 53-79. Concurrent with their
Complaint, Plaintiffs filed this Preliminary Injunction Motion, seeking to vacate the NISP
Enterprise’s June 30th hearing before the Planning Commission. Preliminary Injunction Motion at
Concl.
STANDARD OF REVIEW
A preliminary injunction is an extraordinary remedy, granted only “sparingly and
cautiously and with a full conviction on the part of the trial court of its urgent necessity.” Rathke
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v. Macfarlane, 648 P.2d 648, 653 (Colo. 1982). Such relief is only warranted when a movant can
convince the court that (1) the movant has a reasonable probability of success on the merits; (2)
the movant will suffer real, immediate, and irreparable injury which may be prevented by
injunctive relief; (3) that there is no plain, speedy, and adequate remedy at law; (4) that the granting
of a preliminary injunction will not disserve the public interest; (5) that the balance of equities
favors the injunction; and (6) that the injunction will preserve the status quo pending a trial on the
merits. Id. at 653-54.
ARGUMENT
I. Plaintiffs have not identified any irreparable harm.
Plaintiffs have not identified any real, immediate, and irreparable injury they would sustain
without an injunction. Plaintiffs set forth several grievances with NISP and the Poudre Intake and
Pipeline itself. Preliminary Injunction Motion at 7(b). But as Plaintiffs note themselves,
construction of NISP is not slated to begin until 2023, construction on the Poudre Intake and
Pipeline would not begin until 2024, and deliveries would not occur until 2030. Id., ¶¶ 15, 16, 17
& Pgs. 7, 8(e).
Plaintiffs also attempt to characterize their injury as deprivation to their rights to public
participation on the Poudre Intake and Pipeline. The public, however, was already afforded at
least one opportunity to comment during the SPAR process already and the public will once again
have an opportunity at the June 30th hearing. See Ex. C & Compl., Ex. 1. Public participation is
one of the most important aspects of location-and-extent review. See Blue River Defense Comm.
v. Town of Silverthorne, 516 P.2d 452, 454 (Colo. 1973) (observing that under location-and-extent
review the public is “entitled to an opportunity to present their objections and views and to have
these considered as part of the planning commission’s approval or disapproval”).
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Plaintiffs also claim injury because the NISP Enterprise, unlike in other land use review
processes, will be able to overrule the Planning Commission’s disapproval. Any such injury would
certainly not be “irreparable” because Plaintiffs can challenge the City’s decision to use SPAR
under C.R.C.P. 106 after the Planning Commission renders its final decision. If Plaintiffs are
correct, any decision made under SPAR may be vacated and the NISP Enterprise required to
proceed under another land use process.
Plaintiffs’ claims can be fully addressed in the normal course and do not require
extraordinary intervention in the form of a preliminary injunction from this Court.
II. Plaintiffs cannot show a probability of success on the merits because their
claims are legally deficient.
Plaintiffs are unlikely to succeed on the merits of their claim because (1) they misinterpret
the LUC and section 31-23-209, (2) their Rule 57 claim is not ripe, and (3) they failed to exhaust
their administrative remedies.
A. Plaintiffs’ misinterpret the LUC and section 31-23-209.
Plaintiffs assert two arguments for why the SPAR process should not apply to the Poudre
Intake and Pipeline. They first contend that SPAR requires the applicant to own or operate the
parcels upon which the project will be constructed at the time the application is submitted, which
was not the case here. Compl., ¶ 34. This argument rests on a truncated reading of the LUC and
would contravene section 31-23-209.
The SPAR process requires the submittal and approval of a site plan for the “location,
character and extent of improvements to parcels owned or operated by public entities.” LUC §
2.1.3(E)(1). Plaintiffs read into this language an express condition that at the time of an
application, the proposing public entity must own or operate the parcel of land upon which the
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proposed project will be constructed. Plaintiffs apparently find this condition in the LUC’s usage
of the past tense “owned or operated.”
As an initial matter, “owned or operated” does not modify “parcels” alone; it modifies the
entire term “improvements to parcels.” This is clear because the LUC is using “improvements to
parcels” here to broadly capture any type of public project, that is, any type of man-made
improvement to raw land, which is consistent with the LUC’s definition of “improvement.” See
LUC § 5.1.2 (defining “improvement” to mean “any man-made, immovable item which becomes
part of, is placed upon or is affixed to real estate”). As further support, “operated” naturally
modifies “improvements to parcels” (i.e. projects), but one would not normally describe a “parcel”
alone as something “operated.” Because “owned or operated” modifies “improvements to
parcels,” it also becomes clear that “owned or operated” cannot take on the significance Plaintiffs
attribute to it. These improvements are merely concepts at the time of their review under SPAR,
they have not been constructed; yet Plaintiffs would require them to be “owned or operated” at the
time of SPAR review. More naturally, the use of the past tense “owned or operated” was simply
a default verb tense chosen by the drafters, sufficient to communicate the real requirement of this
clause that only improvements owned or operated “by public entities” may utilize the SPAR
process.
Plaintiffs’ chosen interpretation would also contravene the statute SPAR was designed to
implement. Section 31-23-209 2 provides in part that no public building or structure shall be
constructed or authorized in the municipality . . . until the location, character, and extent thereof
has been submitted for approval by the [planning] commission.” § 31-23-209. This language does
2 SPAR contains several express references to section 209. See LUC § 2.1.3(E)(1) (using the
same “location, character and extent” language used in the statute); LUC § 2.16.2(G)
(referencing section 209); LUC § 2.16.2(L) (referencing section 209).
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not include any suggestion that the underlying land must be owned before location-and-extent
review can proceed. Id.; see also Bd. of Cty. Comm’rs of La Plata Cty. v. Bd. of Adjustment of
Durango, 768 P.2d 1250, 1251 (Colo. App. 1988) (noting simply that section 209 is applicable “to
public buildings to be constructed or authorized.”); City of Boulder v. Hygiene, 221 P.3d 1063,
1067 (Colo. 2009) (explaining that location-and-extent review provides “an opportunity to review
and approve or disapprove a proposed public project”). The SPAR process should not be
interpreted to contravene the statute it was designed to implement. See Antonin Scalia & Bryan
A. Garner, Reading Law at 66 (1st ed. 2012) (“An interpretation that validates outweighs one that
invalidates.”).
Additionally, other SPAR provisions in the LUC reaffirm that the import of this language
was merely to clarify that only public projects qualify for SPAR review. Neighboring subsection
2.1.3(E)(2), entitled “Applicability,” simply states, “A Site Plan Advisory Review [SPAR] shall
be applied to any public building or structure.” See also LUC § 2.16.2(C). Nowhere in the SPAR
provisions of the LUC is it suggested that prior land ownership is a necessary pre-condition to
filing an application.
Finally, Fort Collins has customarily used the SPAR process regardless of prior
landownership. See Compl., Ex. 3. This is not only customary but sensible in light of how public
projects are often reviewed and permitted before the property rights are obtained for their
construction.
Plaintiffs also contend that SPAR is inconsistent with section 31-23-209, which they assert
only allows other towns and cities—not other governmental entities such as the NISP Enterprise—
to overrule decisions made by the planning commission. Compl., ¶ 70. This interpretation
conflicts with the plain meaning of the statute, case law, and the LUC.
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Section 31-23-209 contemplates a land use process for public projects that is ultimately
advisory in nature. The planning commission performing the review may disapprove of the public
project but ultimately the public entity proposing the project may overrule that disapproval upon
a qualifying vote. See Hygiene Fire Dist., 221 P.3d at 1067 (“Location and extent review is
basically a courtesy review . . . because the governing body of the political subdivisions may
overrule the county’s disapproval.”). This override authority is expressly set forth in the statute:
If the [public project] is one the authorization or financing of which does not . . .
fall within the province of the municipal governing body, the submission to the
commission shall be by the governmental body having jurisdiction, and the
planning commission’s disapproval may be overruled by said governmental body
by a vote of not less than two-thirds of its membership.
§ 31-23-209 (emphasis added). “Governing body,” as Plaintiffs correctly point out, is a defined
term used throughout title 31 to refer to the authorizing body of a town or city. See § 31-1-101(4).
“Governmental body,” however, is not a defined term under title 31, but is used throughout the
title to refer to the body of another governmental entity which has lawful authority over that entity.
See, e.g., § 31-23-206, C.R.S. (stating that the planning commission may adopt a master plan,
including for areas outside its boundaries, “subject to the approval of the governmental body
having jurisdiction thereof”); see also § 31-23-215, C.R.S.; § 31-23-208, C.R.S. In at least one
other instance in title 31, “governing body” and “governmental body” are used in the same
provision and given these separate, distinct meanings. See § 31-25-404(4), C.R.S (authorizing the
“governing body” of municipalities to establish pedestrian malls if they satisfy the requirements
of applicable law for any “special districts, improvement districts, or other governmental bodies
or agencies” that assist in paying for the mall). “Governing body” and “governmental body” are
different terms, see Scalia & Garner, supra, at 170 (“[A] material variation in terms suggests a
variation in meaning.”), they are given distinct meanings throughout title 31, and when read in
10
context section 31-23-209 also clearly attributes separate meanings to these terms. Conflating the
two in section 209 is the interpretative error made by Plaintiffs. “Governmental body” does not
refer to cities and towns only, but rather all types of political subdivisions of the state which may
be the authorizing authority for the proposed public project.
Court decisions interpreting the location-and-extent-review statute for counties, which is
very similar to section 31-23-209,3 confirms that all political subdivisions of the state—not just
cities and towns—may override planning commission disapproval. See Hygiene Fire Protection
District, 221 P.3d at 1067-68 (stating “political subdivisions” of the state may override county “or
municipal” zoning regulations under location and extent review); Blue River Defense Comm. v.
Town of Silverthorne, 516 P.2d 452, 454 (Colo. 1973) (stating that “other governmental units”
may override the county’s disapproval); Reber v. S. Lakewood Sanitation Dist., 362 P.2d 877,
879-80 (Colo. 1961) (holding that sanitation district had override authority over county planning
commission and commenting generally that “governmental subdivisions” have override authority
for county “or municipal” zoning regulations).
Finally, Plaintiffs’ interpretation of section 31-23-209 conflicts with the City’s SPAR
provisions outlined in the LUC , which apply SPAR to projects proposed by all “public entities,”
not just projects from another city or town. See LUC §§ 2.1.3(E)(1), 2.16.2(L).
3 Compare § 30-28-110(1)(a) (“Whenever any county planning commission or, if there is none,
any regional planning commission has adopted a master plan of the county or any part thereof,
no road, park, or other public way, ground, or space, no public building or structure, or no public
utility, whether publicly or privately owned, shall be constructed or authorized in the
unincorporated territory of the county until and unless the proposed location and extent thereof
has been submitted to and approved by such county or regional planning commission.”) with §
21-23-209 (“When the commission has adopted the master plan of the municipality or of one or
more major sections or districts thereof, no street, square, park or other public way, ground or
open space, public building or structure, or publicly or privately owned public utility shall be
constructed or authorized in the municipality or in such planned section and district until the
location, character, and extent thereof has been submitted for approval by the commission.”).
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Plaintiffs’ misinterpret section 31-23-209’s override provision, and therefore have little
likelihood of success on the merits of their claim.
B. Plaintiffs’ claims would only be ripe if brought under Rule 106 after
the Planning Commission issues a final decision on the NISP
Enterprise’s SPAR application.
For a claim to be ripe, the issue must be real, immediate, and fit for adjudication.
Developmental Pathways v. Ritter, 178 P.3d 524, 530, 533–35 (Colo. 2008). In the administrative
context a claim is not fit for adjudication if the administrative entity has not made a final decision
on the matter in controversy. Wilkinson v. Bd. of Cty. Comm’rs of Pitkin Cty., 872 P.2d 1269,
1279 (Colo. App. 1993).
For actions challenging the quasi-judicial decisions of local governments, review under
Rule 106—after a final decision is made—constitutes the exclusive remedy. Quaker Court Ltd.
Liability. Co., v. Bd. of Cty. Comm’rs of Cty. of Jefferson, 109 P.3d 1027, 1031 (Colo. App.
2004); Native American Rights Fund, Inc. v. City of Boulder, 97 P.3d 283, 287 (Colo. App. 2004).
Similar to the underlying reasons requiring exhaustion of administrative remedies, see Crow v.
Penrose-St. Francis Healthcare Sys., 169 P.3d 158, 164-165 (Colo. 2007), requiring review of
quasi-judicial proceedings only after that proceeding is complete (1) allows the local government
to develop a sufficient factual record, (2) promotes efficiencies by ensuring an uninterrupted quasi-
judicial process, (3) respects the autonomy of local governments, and (4) conserves judicial
resources. See also Moschetti v. Liquor Licensing Auth. of City of Boulder, 490 P.2d 299, 301
(Colo. 1971) (stating that requiring parties to challenge final decisions after they are made under
Rule 106 “prevents piecemeal application to, or interference by, the judiciary” into the quasi-
judicial process).
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Colorado courts have found a limited exception to this rule, allowing relief through Rule
57 to address issues raised in a quasi-judicial action where those issues were not determined within
the quasi-judicial proceeding. See Native American Rights Fund, Inc., 97 P.3d at 287-88 (allowing
plaintiff’s Rule 57 action where city’s quasi-judicial proceedings and determination did not
address constitutional issues raised by plaintiff during the course of those proceedings); Denver
Center for Performing Arts v. Briggs, 696 P.2d 299, 305 (Colo. 1999) (allowing a Rule 57 claim
because Rule 106 “may be ineffective in addressing the issues raised by the petitioner”). This
exception has not been applied, however, to allow for a declaratory challenge under Rule 57 before
the quasi-judicial proceeding has come to a final determination.
Here, Plaintiffs ask this Court to intervene in the middle of a quasi-judicial process that has
not resulted in a final action from the Planning Commission. The Division made a provisional
determination when it issued Administrative Interpretation #3-21 concluding that SPAR was the
proper land use process to review the Poudre Intake and Pipeline. Compl., Ex. 3. This
interpretation was issued as part of the ongoing quasi-judicial SPAR process that was initiated by
the NISP Enterprise’s February 2021 conceptual review application. See LUC § 2.16.2(A) (listing
conceptual review as the first step in the SPAR process). That process has not yet resulted in a
final determination from the Planning Commission and therefore Plaintiffs’ claims are not ripe, as
a matter of law, until that time. Plaintiffs should not be permitted to seek review under Rule 57 of
an ongoing quasi-judicial process; their exclusive remedy lies in an action under Rule 106 after
this quasi-judicial action concludes.
C. If the Division’s administrative interpretation is a standalone action,
Plaintiffs failed to exhaust their administrative remedies.
If the Division’s administrative interpretation is not considered part of the ongoing quasi-
judicial process under SPAR but rather a standalone action, then Plaintiffs failed to exhaust their
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administrative remedies. City & Cty. of Denver v. United Air Lines, Inc., 8 P.3d 1206, 1213 (Colo.
2000) (holding that the exhaustion doctrine applies equally to declaratory actions as with any other
civil action).
In April, Plaintiff Save the Poudre requested a formal administrative interpretation from
the Division, under section 1.4 of the LUC, as to whether SPAR was the applicable land-use
process to review the Poudre Intake and Pipeline. See Compl., Ex. 2; LUC § 1.4.3 (setting forth
the process to request interpretations of the LUC). That request included all of the grounds
Plaintiffs raise to support their claims in this action. See Compl., Ex. 2. The Division issued
Administrative Interpretation #3-21 rejecting Save the Poudre’s arguments in May. See id., Ex.
3. Save the Poudre did not contest that determination under the appeal procedures available to
them in the LUC. See LUC § 1.4.3(F) (appeals to administrative interpretations may be made
under section 2.11); LUC § 2.11 (process for appeals of administrative decisions). Therefore, if
Administrative Determination #3-21 constitutes its own standalone and final action, Plaintiffs are
likewise prohibited from bringing this action for failure to exhaust administrative remedies.
For these three reasons, Plaintiffs do not have, and have not demonstrated, a reasonable
probability of success on the merits of their claim.
III. Plaintiffs have other adequate remedies at law.
As explained above, Rule 106 provides Plaintiffs their exclusive remedy to address their
concerns. If not exclusive, Rule 106 at least provides another adequate remedy available to them.
See Envirotest Sys., Corp. v. Colo. Dep’t of Rev., 109 P.3d 142, 145 (Colo. 2005) (holding that
temporary restraining order was improperly issued where plaintiffs could have utilized appeals
process to review hearing officer’s ruling).
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IV. Granting Plaintiffs’ relief would disserve the public interest.
The public interest can be captured by an applicable statute. See Kourlis v. Dist. Ct., El
Paso Cty., 930 P.2d 1329, 1336 (Colo. 1997) (“[T]he public interest expressed throughout the
design of this statute favored issuance of the requested relief.”). Here, section 31-23-209 expresses
a public interest in the expedient resolution of the NISP Enterprise’s SPAR application. Section
209 requires any location-and-extent-review application to be processed by the planning
commission within 60 days. Granting a preliminary injunction here would instead delay the
processing of the NISP Enterprise’s SPAR application in contravention of section 209.
V. The balance of equities favors denial of an injunction.
The equities do not favor an injunction. Plaintiffs will not be harmed if these SPAR
proceedings continue in their ordinary course. The NISP Enterprise, however, would be harmed
by not receiving an expedient decision on its application within the allotted 60 day time period.
VI. An injunction would constitute extraordinary intervention into typical quasi-
judicial proceedings and disruption of the status quo.
A preliminary injunction in favor of Plaintiffs would upset the status quo. Contrary to the
status quo suggested by Plaintiffs, see Preliminary Injunction Motion at 9, the status quo is actually
the timely review of the NISP Enterprise’s SPAR application by the Planning Commission. The
status quo contemplates and accommodates the kind of opposition advanced by Plaintiffs: any
party may avail itself of the opportunity to air their grievances at the June 30th hearing scheduled
before the Planning Commission, including the ability to raise concerns that SPAR is not the
appropriate process. Upon final disposition, any interested party may then seek review of the
proceedings under Rule 106, which will be available well before construction is set to begin on
the Poudre Intake and Pipeline in 2024. As explained above, the availability of review under Rule
106 not only sets the status quo but also constitutes Plaintiffs’ exclusive remedy.
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CONCLUSION
For the foregoing reasons, the Court should deny Plaintiffs’ request for a preliminary
injunction postponing the Planning Commission’s SPAR hearing set for June 30, 2021.
RESPONSE TO REQUEST TO SET PRELIMINARY INJUNCTION HEARING
The NISP Enterprise believes an emergency hearing is unnecessary because the parties’
positions on the Motion for Preliminary Injunction are adequately set forth in the parties’ briefs
and there is no additional factual development needed to render a decision on the motion. See
Reynolds & Reynolds Co. v. Eaves, 149 F.3d 1191, at *3 (10th Cir. 1998) (explaining courts are
not required to hold an evidentiary hearing prior to granting or denying a preliminary injunction
motion).
Nevertheless, if the Court determines that a hearing would be helpful, the NISP Enterprise
would not oppose attendance at any such hearing and reserves the right to conduct limited
discovery in connection with, and present evidence at, that hearing.
Respectfully submitted: June 18, 2021.
TROUT RALEY
s/Peggy E. Montaño
Peggy E. Montaño, #11075
Bennett W. Raley, #13429
William Davis Wert, #48722
Mirko L. Kruse, #52488
1120 Lincoln Street, Suite 1600
Denver, CO 80203
Telephone: (303) 861-1963
Facsimile: (303) 832-4465
braley@troutlaw.com
pmontano@troutlaw.com
dwert@troutlaw.com
mkruse@troutlaw.com
Attorneys for Defendant, Northern Integrated Supply
Project Water Activity Enterprise
Pursuant to C.R.C.P. 121, a printed or printable copy of the
document bearing the original, electronic, or scanned signatures is
on file in the offices of counsel.
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CERTIFICATE OF SERVICE
I certify that on June 18, 2021, a true and correct copy of the foregoing Defendant
Northern Integrated Supply Project Water Activity Enterprise’s Response to Plaintiffs’ Motion
for Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency
Hearing was served via the Colorado Courts E-Filing System, on the following:
Name Attorney Organization
City of Fort Collins John Duval City of Fort Collins
No Pipe Dream Corporations John McClain Barth John M Barth Attorney at Law
Paul Sizemore John Duval City of Fort Collins
Save the Poudre John McClain Barth John M Barth Attorney at Law
S/ Britta Petersen
E-filed pursuant to C.R.C.P. 121 §1-26 via the
Colorado Courts E-Filing System. A printed or
printable copy of this document bearing the
original, electronic, or scanned signatures is on
file at the office of Trout Raley