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 - 008 - Reply In Support Of Preliminary Injunction
Larimer County District Court
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
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 Community Development & Neighborhood
Services Department of the City of Fort Collins,
NORTHERN INTEGRATED SUPPLY PROJECT WATER
ACTIVITY ENTERPRISE.
Defendants.
COURT USE ONLY
John M. Barth, Attorney at Law
P.O. Box 409
Hygiene, CO 80533
(303) 774-8868 (fax and phone)
barthlawoffice@gmail.com
Counsel for Save the Poudre and No Pipe Dream Corp.
Case Number
2021CV030425
Division 5B
PLAINTIFFS’ REPLY TO NORTHERN’S RESPONSE TO MOTION FOR
TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY
INJUNCTION AND REQUEST FOR EMERGENCY HEARING
________________________________________________________________________
Plaintiffs submit this Reply to Northern’s Response to Plaintiffs’ Motion for
Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency
Hearing.
DATE FILED: June 22, 2021 3:03 PM
FILING ID: 2E50297FF2585
CASE NUMBER: 2021CV30425
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INTRODUCTION
Northern argues that this case involves “typical quasi-judicial proceedings.”
Response, p. 14. To the contrary, the proceedings at issue are neither “typical” nor
“quasi-judicial.” Northern’s SPAR application seeks to develop land it does not own
and claims to have ultimate decision making authority over its own land use
application. Northern’s legal strategy is dangerous and un-democratic. As such, a
declaratory judgment by this Court on the applicability of SPAR is vital. Plaintiffs ask
this Court to maintain the status quo by vacating the impending June 30, 2021 hearing to
allow time for the merits of this case to be reached.
Northern’s Response fails to contest any of the following operative facts
governing the merits of Plaintiffs’ requested declaratory and preliminary injunctive relief:
• Northern filed a SPAR land use application under Sections 2.1.3(E) of the
City of Fort Collins Code.
• Section 2.1.3(E) of the Code clearly states that SPAR is only applicable to
“parcels owned or operated” by the SPAR permit applicant.
• Northern does not own or operate the parcels that are the subject of its
SPAR land use application. Instead, the City of Fort Collins owns the
relevant parcels.
• The City Council must approve the sale or transfer of any of its property
rights. Complaint, Exhibit 6, p. 4.
• “The City will not consider the sale or conveyance of any real property
rights on any City property for the NISP project until Northern Water has
a final and non-appealable Clean Water Act Section 404 Permit.”
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Northern Response, Exhibit B, p. 16 (paragraph 16.3.). Northern does not
have a final and non-appealable Clean Water Act Section 404 permit.
• A land use hearing before the City of Fort Collins Planning and Zoning
Commission has been scheduled for June 30, 2021.
• Plaintiffs’ Motion was accompanied by a sworn affidavit establishing
irreparable harm. Plaintiffs’ Motion, Exhibit 1. Northern’s Response fails
to submit any affidavit or evidence rebutting Plaintiffs’ allegations of
irreparable harm. Northern’s Response also fails to submit any affidavits
establishing harm it would incur as a result of the issuance of preliminary
relief.
Unable to contest the operative facts, Northern instead offers a number of
extraneous legal arguments. Northern’s arguments are a distraction. The plain language
of Section 2.1.3(E) of the Code and the undisputed facts create a reasonable likelihood
that Plaintiffs will prevail on the merits. For the reasons stated below, Northern’s legal
arguments should be rejected and the requested preliminary injunctive relief should issue.
I. PLAINTIFFS HAVE PROVEN IRREPARABLE HARM.
Plaintiffs’ Motion was accompanied by the sworn Declaration of Gary Wockner.
Motion, Exhibit 1. Mr. Wockner’s declaration establishes irreparable harm associated
with allowing the June 30, 2021 SPAR hearing to proceed prior to a ruling on the merits,
including a violation of procedural and substantive land use rights guaranteed by the City
of Fort Collins Land Use Code. Id., p. 4, ¶16. See also, Motion, p. 7. Northern’s
Response fails to submit any declarations or evidence rebutting Mr. Wockner’s claims of
irreparable harm.
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Further, if Northern obtains SPAR approval on, or shortly after,1 the June 30,
2021 land use hearing, nothing would prevent Northern from immediately commencing
land clearing activities on the City owned-properties. Such activities would irreparably
harm Mr. Wockner’s aesthetic, environmental and recreational interests. Motion, Exhibit
1, p. 3, ¶ 14. To date, Northern has made no binding promises to Plaintiffs, or this Court,
that land-disturbing activities would not commence before a decision on the merits of this
case.
II. PLAINTIFFS HAVE A “REASONABLE” LIKLIHOOD OF SUCCESS.
To obtain preliminary relief, Plaintiffs need only show a “reasonable” likelihood
of success on the merits. Plaintiffs have done so.
A. Section 2.1.3 (E)(1) is clear on its face and requires no
“interpretation.”
Northern argues that Plaintiffs “misinterpret” the applicable Code Section 2.1.3
(E)(1). To the contrary, Plaintiffs do not engage in any “interpretation” of the Code and
neither should the Court. Section 2.1.3(E)(1) clearly states, “[t]he Site Plan Advisory
Review process requires the submittal and approval of a site development plan that
describes the location, character and extent of improvements to parcels owned or
operated by public entities.” Complaint, Exhibit 7. Code Section 2.16.1 reiterates that
“[t]he …applicability of a Site Plan Advisory Review is contained in Section 2.1.3 (E).”
Id. Section 2.1.3(E) is clear on its face that SPAR is only applicable “to parcels owned or
operated” at the time of “the submittal and approval of a site development plan.” When a
1 According to Northern, if the City of Fort Collins Planning Commission denies the
SPAR application on June 30, 2021, Northern could immediately schedule a hearing of
the NISP Board and override the City’s disapproval.
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municipal ordinance is clear on its face, it must be applied as written. Walker
Commercial, Inc. v. Brown, 2021COA 60, ¶32 (Ct.App. 2021).
Northern’s Response does not contest that on the date of “the submittal2 and
approval3 of a site development plan” it did not, or will not, own or operate the parcels in
question. Plaintiffs have a reasonable likelihood of success on the merits based on the
clear language of the Code and the uncontested facts.
Northern then urges the Court to stray from the plain language of Code Section
2.1.3(E) and “interpret” the Code in light of State statutory law (C.R.S. §31-23-209) and
other extraneous provisions of the Code (Code Sections 5.1.2, 2.16.2(G), 2.16.2(L).
Northern Response, pp. 6-11. Because the language of Code Section 2.1.3(E) is clear on
its face, the Court need not and should not “interpret” the provision or compare it to State
statutory law or other Code provisions. Walker, 2021COA 60, ¶32.
Northern also urges the Court to evaluate the terms “governing body” and
“governmental body” found in C.R.S. Title 31. Northern Response, pp. 9-10. However,
Plaintiffs do not rely on, or refer to, these definitions in their Motion. Nor is it necessary
to review the language of Title 31 to confirm the plain meaning of Section 2.1.3(E) of the
Code. Northern’s arguments are simply irrelevant because the plain language of Code
Section 2.1.3(E) limits the applicability of SPAR to parcels owned or operated at the time
of the submission of the SPAR application. The Court should ignore Northern’s attempt
at distraction when the plain language of Code Section 2.1.3(E) is crystal clear.
The case law relied upon in Northern’s Response also provides little support for
its legal arguments. None of the case law cited by Northern involve Section 2.1.3(E) of
2 May 5, 2021
3 June 30, 2021
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the Fort Collins City Code. Further, none of the case law directly addresses whether a
political subdivision must “own or operate” the parcels in question at the time of
submission of a SPAR application when the local Code requires such ownership.
However, the cases cites by Northern do provide further support to Plaintiffs’
argument that the City Code’s procedural requirements must be met. Although finding
that C.R.S. § 31-23-209 was “inapplicable,” the Court in La Plata County Com’rs v.
Board of Adjustment of the City of Durango, found that similar provisions do not “grant
blanket immunity or exemption” from local land use procedural requirements. 768 P.2d
1250, 1252 (1988). The court in Blue River Defense Committee v. Town of Silverthorne,
516 P.2d 452, 454 (1973) also previously made clear that local land use “zoning
procedures” must be followed even if the political applicant had the ultimate power to
overturn an adverse land use decision. Section 2.1.3(E) of the Code is such a procedural
requirement that Northern must comply with before SPAR becomes applicable to its
development proposal.
B. Rule 106 is not an available remedy because there is no exercise of
quasi-judicial function.
Northern then argues that Plaintiffs’ Motion should be denied because a Rule 106
appeal is Plaintiffs’ exclusive remedy. Northern Response, pp. 11-13. Northern’s
Response fails to cite any controlling case law holding that Rule 106 relief is available on
a planning commission SPAR decision or a governing board “override” of such a
decision. To the contrary, Rule 106 is only available when the “governmental body” is
“exercising judicial or quasi-judicial functions” and issues a “final decision.” See,
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Colo.R.Civ.Pro. 106(a)(4) and 106(b). Here, the Planning Commission is neither
“exercising judicial or quasi-judicial functions” nor can it issue a “final decision.”
Northern’s Response concedes that the Planning Commission is only acting in an
“advisory” capacity. Northern Response, p. 2 (the Planning Commission’s “assessment
is for advisory purposes only…”); p. 9 (the Planning Commission’s role “is ultimately
advisory in nature”). Thus, Rule 106 is not available to Plaintiffs because the Planning
Commission is not “exercising judicial or quasi-judicial functions” on Northern’s SPAR
application, as is a prerequisite for a Rule 106 action. Rule 106(a)(4). Further, Northern
also concedes that “[i]f the planning commission disapproves of the proposed project, the
governmental body of the public entity authorizing the project can overrule the
disapproval.” Northern’s Response, p. 2. As such, the Planning Commission cannot issue
a “final decision,” which is also prerequisite for a Rule 106 action. Rule 106(b).
Northern has also failed to submit evidence that any subsequent “overriding” of
the Planning Commission action by the NISP governing board would provide Rule 106
relief to Plaintiffs. Northern has failed to submit any evidence of the procedures
applicable to any “overriding” action by the NISP board. Thus, there is no evidence that
such an overriding action would include the necessary prerequisites of quasi-judicial
action, including public notice, public comment, and submission of evidence and cross
examination. Cherry Hills Resort Development Co., v. City of Cherry Hills Village, 757
P.2d 622, 624 (Colo. 1988 en banc). Further, Northern has failed to submit any
promulgated regulations governing the legal criteria that would be applied by the NISP
board in any “overriding” process. Id. (a prerequisite for quasi-judicial action requires “a
state or local law requiring the body to make a determination by applying the facts of a
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specific case to certain criteria established by law) emphasis added. Thus, Northern has
failed to prove that an action by the NISP board would be quasi-judicial entitling
Plaintiffs to relief under Rule 106.
Finally, the Code clearly states that “Appeals” are “Not applicable” to Planning
Commission SPAR findings. Complaint, Exhibit 7 (Code Section 2.16.2(L)).
In summary, Northern’s Response completely fails to prove that Rule 106 is an
available remedy for any SPAR determination.
C. There is no administrative exhaustion requirement.
Northern then argues that Plaintiffs failed to exhaust all administrative appeal
requirements related to the SPAR application. Northern Response, p. 12. As noted
above, under Code Section 2.16.2(L) administrative appeals are “Not applicable” to
SPAR. Complaint, Exhibit 7. The policy reason for eliminating administrative appeals
and exhaustion requirements is because any such appeal would be fruitless when the
outcome of the administrative appeal “may be overruled by the governing board of the
public entity…” Complaint, Exhibit 7 (Code Section 2.16.2(L)). The Code is clear that
administrative “appeals” are “not applicable” to SPAR. Thus, there is no administrative
appeal opportunity that Plaintiffs failed to exhaust.
In any event a City administrative exhaustion requirement should not be a barrier
to a Rule 57 action when the permit applicant, and not the City, that has final decision
making authority over a SPAR land use application.
III. Rule 57 is Plaintiffs’ only remedy.
As noted above, Rule 106 is unavailable because the Planning Commission will
not render a final decision after exercising judicial or quasi-judicial functions. Further,
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Northern has failed to produce any evidence that a NISP override process would be
quasi-judicial and guarantee Plaintiffs’ a right to appeal under Rule 106. Plaintiffs’ only
remedy is this Rule 57 action.
IV. Preliminary relief is in the public interest.
Northern is attempting to obtain development approval over property it does not
own that was paid for and improved by the residents of the City of Fort Collins. Before
the City disposes of its property, it must obtain approval of the City Council. Complaint,
Exhibit 6, p. 4. Northern is attempting to side step the City Council approval process.
Northern’s strategy could be applied to any property in the City of Fort Collins, including
existing residential property. Northern’s legal strategy to use SPAR on property it does
not own is un-democratic, dangerous, and an affront to private property rights. The public
interest clearly favors issuance of preliminary relief.
V. The balance of equities favors Plaintiffs.
Plaintiffs have submitted a sworn declaration establishing the harm that would
results from a denial of preliminary relief. Motion, Exhibit 1. In contrast, without
submitting any supporting evidence or declarations, Northern summarily states it “would
be harmed by not receiving an expedient decision on its application within the allotted 60
day time period.” Northern Response, p. 14. Northern’s unsupported allegation of harm
is contradicted by its own acknowledgment that “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.” Northern Response, p. 5.
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Northern has not submitted any admissible evidence supporting harm associated
with the issuance of preliminary relief. In contrast, Plaintiffs have submitted ample
evidence. The equities balance in favor of issuance of preliminary relief.
VI. Maintaining the status quo requires preliminary relief.
The status quo is to be evaluated now, not June 30, 2021. Northern has not proven
that Rule 106 relief is available to Plaintiffs on or after June 30, 2021. Maintaining the
status quo requires the entry of the preliminary relief requested by Plaintiffs.
CONCLUSION
Because Northern has not contested any of the operative facts, Plaintiffs agree
that an evidentiary hearing is not necessary and that the Court can render a decision on
Plaintiffs Motion based on the pleadings. Plaintiffs request that the Court issue the
preliminary relief requested.
Respectfully submitted this 22nd day of June 2021.
/s/ John M. Barth
John M. Barth
Attorney at Law
P.O. Box 409
Hygiene, CO 80533
barthlawoffice@gmail.com
303-774-8868 telephone and fax
Counsel for Save the Poudre
CERTIFICATE OF DELIVERY
I hereby certify that on this 22nd day of June 2021, a true and correct copy of the
foregoing Plaintiffs’ Reply to Northern’s Response to Motion for Temporary
Restraining Order and/or Preliminary Injunction and Request for Emergency
Hearing, was filed via Colorado Courts E-filing System and was served by email to
Defendants’ legal counsel.
DEFENDANTS CITY OF FORT COLLINS AND PAUL SIZEMORE
jduval@fcgov.com
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John Duval
Deputy City Attorney, City of Fort Collins
DEFENDANT NORTHERN WATER
braley@troutlaw.com
Bennett Raley
Trout and Raley
1120 Lincoln St., Suite 1600
Denver, CO 80203-2141
/s/ John M. Barth
John M. Barth