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 - 016 - First Amended Complaint
Larimer County District Court
201 La Porte Ave, Suite 100
Fort Collins, CO 80521
SAVE THE POUDRE, and
NO PIPE DREAM CORPORATION
Plaintiffs
v.
NORTHERN COLORADO WATER CONSERVANCY
DISTRICT,
NORTHERN INTEGRATED SUPPLY PROJECT WATER
ACTIVITY ENTERPRISE,
THE CITY OF FORT COLLINS, a Colorado home rule city
and municipal corporation,
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:
21CV30425
Courtroom: 5B
FIRST AMENDED COMPLAINT
Plaintiffs Save the Poudre and No Pipe Dream Corporation bring this First
Amended Complaint for declaratory relief pursuant to Colo.R.Civ.Pro. 57 and the
Colorado Uniform Declaratory Judgments Law; and, in the alternative, for relief under
Colo.R.Civ.Pro. 106(a)(4).
DATE FILED: August 31, 2021 10:40 AM
FILING ID: 631C0FDA58B55
CASE NUMBER: 2021CV30425
2
INTRODUCTION
1. This is a Complaint under Colo.R.Civ.Pro. 57 and the Colorado Uniform
Declaratory Judgments Law seeking declaratory rulings and vacating the August 12,
2021 actions and adoption of Resolution D-1367-08-21 (“Resolution”) by the Northern
Colorado Water Conservancy District (“District”) overturning the City of Fort Collins’
(“City”) denial of Northern Integrated Supply Project Water Activity Enterprise’s
(“Enterprise”) Site Plan Advisory Review (“SPAR”) land use application for aspects of
the Northern Integrated Supply Project (“NISP”). Exhibit 1 hereto (Resolution D-1367-
08-21 “Resolution”). In the alternative, Plaintiffs challenge the District’s August 12,
2021 actions and adoption of the Resolution pursuant to Colo.R.Civ.Pro. 106(a)(4) and
likewise seek a ruling vacating the District’s actions.
JURISDICTION AND VENUE
2. This Court has subject matter jurisdiction in this action as provided in
Colo.R.Civ.Pro. 57 and the Uniform Declaratory Judgment Law, C.R.S. §13-51-101 et
seq. Alternatively, this Court has subject matter jurisdiction pursuant to Colo.R.Civ.Pro.
106(a)(4).
3. Venue is proper before this Court pursuant to Colo.R.Civ.Pro. § 98(a)
because this is an action affecting real property in Larimer County, Colorado.
4. Plaintiffs’ members live and own properties in close proximity to the City
of Fort Collins’ owned Natural Areas that will be adversely affected by the District’s
August 12, 2021 actions and Resolution. Plaintiffs’ members pay taxes and fees to the
City of Fort Collins that help to fund the purchase, construction, and maintenance of the
Natural Areas.
3
5. Plaintiffs’ members recreate in and along the Cache la Poudre River and in
the City of Fort Collins Natural Areas that would be adversely impacted by the
Resolution.
6. Plaintiffs’ members are taxpayers and/or ratepayers to the City of Fort
Collins. Fort Collins taxpayers have invested tens of millions of dollars to conserve
unmatched ecological resources running through the heart of the City, including the
Natural Areas that would be damaged by the Resolution. Exhibit 2, p. 1. Fort Collins
taxpayers, including Plaintiffs’ members, believed that the Natural Areas would be
protected in perpetuity. Exhibit 2, p. 1.
7. The City of Fort Collins’ own Land Conservation and Stewardship Board,
within the City of Fort Collins Natural Areas Department, found on June 10, 2020 that
NISP’s removal of water from the river, through the Poudre River Intake, would further
drain and degrade the immediate and downstream Natural Areas. Exhibit 2, p. 1.
Hundred-year old trees will dry up, understory plants will shift to more drought tolerant
species, biodiversity will decrease, and forests and wetland dependent animals will
disappear. Exhibit 2, p. 1.
8. NISP would adversely impact the Plaintiffs’ members by imposing
unwanted noise, traffic, dust, reduced recreational use and enjoyment of the Natural
Areas, loss of ecological value of the Natural Areas, increased flooding on Natural Areas,
aesthetic injury, and waste of taxpayer invested money.
9. Plaintiffs have standing to bring these claims because Plaintiffs and/or
their members will be adversely impacted by the Resolution including but not limited to:
noise, air pollution, traffic, water pollution, City property damage, adverse possession of
4
City property, diminution of City property value, loss of recreational use, environmental
interests, and enjoyment thereof, and waste of City of Fort Collins tax dollars paid by
Plaintiffs’ members. Plaintiffs and their members also assert procedural standing by
seeking a ruling the District’s August 12, 20021 hearing violated their due process rights
to a fair administrative proceeding because there was no procedural rules or substantive
standards or criteria governing the District’s actions. Exhibit 3 (comment letter).
10. The injuries complained of by Plaintiffs can be remedied by an order from
this Court declaring that the Resolution and the District’s August 12, 2021 actions were
illegal, in excess of its jurisdiction and authority, and unconstitutional; and, vacating said
actions.
THE PARTIES
11. Northern Colorado Water Conservancy District is a water conservancy
district organized pursuant to C.R.S. §§ 37-45-101 et seq. The District owns the
Defendant Enterprise business. Exhibit 1, p. 1.
12. Defendant Northern Integrated Supply Project Water Activity Enterprise is
a business owned by the District, is an “enterprise” within the meaning of Article X,
Section 20(2)(d) of the Colorado Constitution, and is the SPAR land use permit applicant.
Exhibit 4 (SPAR application).
13. Defendant City of Fort Collins is a home rule city and municipal
corporation that denied the Enterprise’s SPAR land use application on June 30, 2021.
Exhibit 5. As per Colo.R.Civ.Pro. 57(j), the City is a party with an interest affected by
the declaration.
14. Plaintiff Save the Poudre (“STP”) is a Colorado Non Profit membership
5
corporation based in Larimer County, Colorado. STP’s mission is to protect and restore
the Cache la Poudre River of Northern Colorado.
15. Plaintiff No Pipe Dream Corporation (“NPD”) is a Colorado Non Profit
membership corporation based in Larimer County, Colorado. NPD’s purpose is to
protect citizens from the intense adverse impacts of multiple proposed water pipelines
and reservoir projects in Larimer County, including but not limited to NISP.
STATEMENT OF FACTS
16. NISP is a raw water development and pipeline project proposed by the
Enterprise through its SPAR land use application to the City. Exhibit 4.
17. NISP is a municipal water project involving, inter alia, the construction
and perpetual operation of a new river diversion structure, known as the Poudre River
Intake, on the Cache la Poudre River that would be located on parcels in the City of Fort
Collins owned Homestead Natural Area. NISP also involves, inter alia, the construction
and perpetual operation of a related raw water pipeline to be located on parcels in part in
the City of Fort Collins’ owned Riverbend Ponds Natural Area. The Poudre River Intake
and the above-referenced water pipeline would both be constructed on land within the
City of Fort Collins. Exhibit 6, p. 1.
18. The proposed Poudre River Intake would be located near the intersection
of South Lemay Avenue and East Mulberry Street, Fort Collins, in the active river
channel and the associated riparian zone in the City of Fort Collins Homestead Natural
Area property. Exhibit 7, p. 5.
19. The Homestead Natural Area was created and funded, at least in part, by
City of Fort Collins taxpayers. Exhibit 2.
6
20. The Homestead Natural Area is sensitive to disturbance and is an
important public use area with established access paths. Exhibit 7, p. 5.
21. The purpose of the Poudre River Intake is to divert water from the Cache
la Poudre River and eventually funnel the water to the water pipeline for transport to
treatment and distribution facilities east of I-25. Exhibit 7, p. 3.
22. When operational, the Poudre River Intake would divert a significant
percentage of the flows in the Cache la Poudre River, thus reducing downstream flows.
Exhibit 7, p. 3.
23. Northern does not own or operate the parcels or property upon which the
Poudre River Intake would be located. Exhibit 8.
24. On April 16, 2020 the Fort Collins City Manager informed the Fort
Collins City Council of “Northern Water’s need to acquire real property rights on City-
owned land and in the City right-of-way near the intersection of Lemay Avenue and
Mulberry Street, where Northern Water would redivert NISP water from the Cache la
Poudre River.” Exhibit 9, p. 4. As of that date “[t]he City and Northern Water have not
yet begun those discussions.” Id. “Any acquisition of real property rights for NISP on
City-owned land would require City Council approval.” Id.
25. Under City of Fort Collins Land Use Code (“LUC” or “Code”) Section
2.1.3(E)(1), the SPAR land use process only applies to “parcels owned or operated” by
the appropriate permit applicant. Exhibit 10.
26. As of August 12, 2021, neither the District nor the Enterprise owned or
operated the parcels of property upon which the Poudre River Intake would be located.
7
27. The District/Enterprise also propose to construct a portion of the NISP
water pipeline in the City of Fort Collins’ owned Riverbend Ponds Natural Area.
28. Riverbend Ponds Natural Area is located downstream of the proposed
Poudre River Intake. Exhibit 11.
29. Riverbend Ponds Natural Area was created and funded, at least in part, by
City of Fort Collins taxpayers. Exhibit 2.
30. The City’s June 10, 2011 Cache la Poudre River Natural Areas
Management Plan Update (“Management Plan”) includes the Riverbend Ponds Natural
Area. The Management Plan includes policies that “provide adequate instream flows to
maintain the ecological functionality, recreational, and scenic values of the Cache la
Poudre River through Fort Collins” (Policy ENV 24.5). The Management Plan also
includes a policy to maintain natural area protection buffers “of three hundred (300) feet
wide” along both banks of the Poudre River to protect natural features and scenic
qualities…” (Policy ENV 24.3). Exhibit 12, p. 3 (Cache la Poudre River Natural Areas
Management Plan Update).
31. Under LUC Section 2.1.3(E)(1), the SPAR land use process only applies
to “parcels owned or operated” by the appropriate permit applicant. Exhibit 10.
32. As of August 12. 2021, neither the District nor the Enterprise owned or
operated the parcels of property in the Riverbend Ponds Natural Area where the proposed
water pipeline would be located.
33. The Fort Collins City Council must approve any transfer of City of Fort
Collins parcels, land, or property rights for construction of the Poudre River Intake and/or
water pipeline. Exhibit 9, p. 4.
8
34. To date, the Fort Collins City Council has not approved any transfer of
any of its property or property rights that would be required for construction and
operation of the Poudre River Intake or water pipeline in the Natural Areas.
35. The Fort Collins City Council could deny any voluntary transfer of
property or property rights needed for the construction and operation of the Poudre River
Intake or the water pipeline in the Natural Areas.
36. The proposed Poudre River Intake and water pipeline would be entirely
new structures and are not improvements to any existing public building or structure.
37. On or about May 5, 2021, the Enterprise applied to the City for a Site Plan
Advisory Review land use approval for portions of NISP known as the Poudre River
Intake and Pipeline. Exhibit 4.
38. On June 30, 2021, the City Planning and Zoning Commission denied the
Enterprise’s SPAR land use application. Exhibit 5.
39. On August 12, 2021, the District’s Board of Directors held a hearing at
which it adopted Resolution D-1367-08-21 purportedly overturning the City’s denial of
the Enterprise’s SPAR land use application pursuant to C.R.S. § 31-23-209.
40. The Resolution purportedly approves “a site specific development plan”
pursuant to C.R.S. § 24-68-101 et seq. Exhibit 1, p. 2, ¶ 4.
41. C.R.S. § 31-23-209 does not grant jurisdiction or authority to the District
to approve a “site specific development plan” to its own government-owned Enterprise
business.
9
42. C.R.S. § 24-68-101 et seq. does not grant jurisdiction or authority to the
District to approve a “site specific development plan” to its own government-owned
Enterprise business.
43. C.R.S. § 24-68-101 et seq.is known as the Vested Rights Act.
44. The Vested Rights Act allows a local government to grant a vested right to
a developer associated with an approved site specific development plan following notice
and public hearing. C.R.S. §24-68-103(1)(c).
45. The Resolution purports to grant a vested right, “as provided in C.R.S. 24-
68-101, et seq.,” to the Enterprise for “construction of the Poudre River Intake and
Pipeline…” Exhibit 1, p. 2, ¶¶ 3 & 4.
46. The City has not approved a site specific development plan for the projects
proposed in the Enterprise’s SPAR application.
47. The City denied the Enterprise’s SPAR application.
48. C.R.S. § 24-68-101 et seq, does not grant jurisdiction or authority
allowing the District to approve a “vested right” to its own government-owned Enterprise
business.
49. C.R.S. § 31-23-209 does not grant jurisdiction or authority allowing the
District to approve a “vested right” to its own government-owned Enterprise business.
50. Prior to the August 12, 2021 hearing, the District had not promulgated or
adopted any generally applicable administrative procedures that would govern the
hearing.
10
51. Prior to the August 12, 2021 hearing, the District had not promulgated or
adopted any generally applicable administrative standards or criteria that would govern
the Board’s substantive action in overturning the SPAR permit denial by the City.
52. C.R.S. § 31-23-209 states “the planning commission’s disapproval may be
overruled by said governmental body by a vote of not less than two-thirds of its
membership.”
53. C.R.S. § 31-23-209 does not contain administrative procedural
requirements governing a vote to overturn a planning commission’s SPAR disapproval.
54. C.R.S. § 31-23-209 does not contain administrative standards or criteria
governing to a vote to overturn a planning commission’s SPAR disapproval.
55. C.R.S. § 31-23-209 requires that the SPAR application “submission to the
commission shall be by the governmental body….”
56. The District is the governmental body with authorization or financing of
NISP.
57. The District did not submit the SPAR application to the City and the
Planning & Zoning Commission. The Enterprise submitted the SPAR application to the
City and Planning and Zoning Commission. Exhibit 4.
CLAIM FOR RELIEF 1
(Request for Declaratory and Injunctive Relief Under Rule 57)
58. The Plaintiffs incorporate all of the foregoing allegations as if set forth
herein.
59. A controversy exists between the parties as to whether the District may
overturn the City’s disapproval of the Enterprise’s SPAR land use application because:
a) a controversy exists as to whether the District had the legal authority and
11
jurisdiction under C.R.S. § 31-23-209 to overturn the City’s disapproval of the
Enterprise’s SPAR land application;
b) a controversy exists as to whether the District, as a “governmental body,” must
make the SPAR permit application “submission to the commission,” rather than its
business “Enterprise” as required by C.R.S. § 31-23-209.
c) a controversy exists as to whether the District has the legal authority under
C.R.S. § 31-23-209, or C.R.S. § 24-68-101 et seq, to approve “a site specific
development plan” for the Enterprise, as purportedly occurred in the Resolution and the
District’s actions of August 12, 2021. Exhibit 1, p. 2, ¶ 3 (Resolution).
d) a controversy exists as to whether the District has the legal authority under
C.R.S. § 31-23-209, or C.R.S. § 24-68-101 et seq, to approve the “construction of the
Poudre River Intake and Pipeline” by the Enterprise as purportedly occurred by the
Resolution and the District’s actions of August 12, 2021. Exhibit 1, p. 2, ¶ 4
(Resolution).
e) a controversy exists as to whether the District has the legal authority to grant
its Enterprise a “vested right” pursuant to “C.R.S. § 24-68-101 et seq.” (“Vested Rights
Act”), or C.R.S. § 31-23-209, to construct the Poudre River Intake and/or Pipeline as
purportedly occurred by the Resolution and the District’s actions on August 12, 2021.
Exhibit 1, p. 2, ¶ 3 (Resolution).
f) a controversy exists regarding whether the District and/or the Enterprise are
entitled to proceed under SPAR and/or C.R.S. § 31-23-209 because they did not “own or
operate” the parcels upon which the construction of the Poudre River Intake and/or
Pipeline would occur as required by the City Code Section 2.1.3(E)(1);
12
g) a controversy exists because each and every Board member of the District had
an unconstitutional conflict of interest when they voted to approve the Resolution
because the Enterprise is a “business” owned by the District itself. Exhibit 1, p. 1.
Tumey v. Ohio, 273 U.S. 510, 523 (2000); Caperton v. A.T. Massey Coal Co., Inc., 556
U.S. 868, 887 (2009); In re Murchison, 349 U.S. 133, 135 (1955)(the Due Process Clause
prohibits a judge from acting as “a judge in his own case”); City of Manassa v. Ruff, 235
P.3d 1051, 1056-57 (Colo. 2010); and, Colorado Constitution, Article XXIX(1)(c).
h) a controversy exists as to whether the District committed an “as applied”
violation of Plaintiffs’ and/or their members’ due process rights guaranteed by the
Colorado Constitution when it approved the Resolution without previously adopting any
procedural regulations governing the proceedings and without previously adopting any
standards or criteria governing a decision to overturn the City’s disapproval of the
Enterprise’s SPAR land use application. People v. Maxwell, 401 P.3d 518, 520
(Colo.App. 2017); Sherman v. Colorado Springs Planning Commission, 763 P.2d 292
(1988).
i) a controversy exists as to whether C.R.S. § 31-23-209 is facially
unconstitutional and/or void for vagueness because it fails to prescribe any due process
procedures, standards, or criteria to be applied in an SPAR overturn proceeding and thus
violates the Colorado Constitution by allowing the District to make arbitrary, subjective,
and uneven treatment of due process rights. People v. Nissen, 650 P.2d 547 (Colo. 1982).
60. For the reasons stated herein, Plaintiffs request a declaration from this
Court vacating the Resolution and the District’s actions on August 12, 2021; declaring
that the Resolution and District actions were illegal and/or in excess of authority and/or
13
jurisdiction; and/or declaring the actions unconstitutional as applied. Plaintiffs also
request a declaration that C.R.S. § 31-23-209 is facially unconstitutional by virtue of the
statute being void for vagueness by lacking any procedures, standards, or criteria upon
which to judge the Resolution and/or District’s August 12, 2021 actions.
61. A judgment or decree by the Court, if rendered or entered on these Rule
57 issues, would end the uncertainty, insecurity, and controversy with respect to the
rights, status, or other legal relations between the parties and the issues identified in the
paragraphs above.
62. Plaintiffs, and/or their members have suffered and will continue to suffer
harm as a result of the Resolution and District’s August 12, 2021 actions because
construction and operation of the Poudre River Intake and pipeline will adversely affect
the recreational, ecological, and taxpayer interests identifies above.
63. Plaintiffs have no other plain, speedy, or adequate remedy provided by
law.
CLAIM FOR RELIEF 2
(Alternative Claim for Relief Under Rule 106(a)(4))
64. The Plaintiffs incorporate all of the foregoing allegations as if set forth
herein.
65. Plaintiffs do not believe Colo.R.Civ.Pro. 106(a)(4) is the proper procedure
for challenging the Resolution or the District’s August 12, 2021 actions because the
proceeding did not meet the legal requirements of a “quasi-judicial” administrative
process. Nevertheless, Plaintiffs’ assert an alternative claim under Colo.R.Civ.Pro.
106(a)(4) in the event the Court determines that the District’s August 12, 2021 actions
were “quasi-judicial” in nature and that jurisdiction exists under Rule 106(a)(4).
14
66. Plaintiffs request that the Court find, pursuant to Colo.R.Civ.Pro.
106(a)(4)(I), that the Resolution and actions of August 12, 2021 exceeded the jurisdiction
of the District and that the District abused its discretion because:
a) the District did not have the legal authority and jurisdiction under C.R.S. § 31-
23-209 to overturn the City’s disapproval of the Enterprise’s SPAR land application;
b) the District, as a “governmental body,” failed to make the SPAR permit
application “submission to the commission” as is required by C.R.S. § 31-23-209.
c) the District did not have the legal authority under C.R.S. § 31-23-209, or
C.R.S. § 24-68-101 et seq, to approve “a site specific development plan” for the
Enterprise, as purportedly occurred in the Resolution and the District’s actions of August
12, 2021. Exhibit 1, p. 2, ¶ 3 (Resolution).
d) the District did not have the legal authority under C.R.S. § 31-23-209, or
C.R.S. § 24-68-101 et seq, to approve the “construction of the Poudre River Intake and
Pipeline” by the Enterprise as purportedly occurred by the Resolution and the District’s
actions of August 12, 2021. Exhibit 1, p. 2, ¶ 4 (Resolution).
e) the District did not have the legal authority to grant its Enterprise a “vested
right” pursuant to “C.R.S. § 24-68-101 et seq.” (“Vested Rights Act”), or C.R.S. § 31-23-
209, to construct the Poudre River Intake and/or Pipeline as purportedly occurred by the
Resolution and the District’s actions on August 12, 2021. Exhibit 1, p. 2, ¶ 3
(Resolution).
f) the District and/or the Enterprise did not qualify for SPAR and/or C.R.S. § 31-
23-209 because they did not “own or operate” the parcels upon which the construction of
the Poudre River Intake and/or Pipeline would occur as required by the City Code
15
Section 2.1.3(E)(1);
g) the District and each Board member violated Plaintiffs’ and/or their members’
procedural due process rights and had an unconstitutional conflict of interest when they
voted to approve the Resolution because the Enterprise is a “business” owned by the
District itself. Exhibit 1, p. 1. Tumey v. Ohio, 273 U.S. 510, 523 (2000); Caperton v.
A.T. Massey Coal Co., Inc., 556 U.S. 868, 887 (2009); In re Murchison, 349 U.S. 133,
135 (1955)(the Due Process Clause prohibits a judge from acting as “a judge in his own
case”); City of Manassa v. Ruff, 235 P.3d 1051, 1056-57 (Colo. 2010); and, Colorado
Constitution, Article XXIX(1)(c).
h) the District committed an “as applied” violation of Plaintiffs’ and/or their
members’ due process rights guaranteed by the Colorado Constitution when it approved
the Resolution without previously adopting any procedural regulations governing the
proceedings and without previously adopting any standards or criteria governing a
decision to overturn the City’s disapproval of the Enterprise’s SPAR land use application.
People v. Maxwell, 401 P.3d 518, 520 (Colo.App. 2017); Sherman v. Colorado Springs
Planning Commission, 763 P.2d 292 (1988).
67. Plaintiffs have no other plain, speedy, or adequate remedy provided by
law.
WHEREFORE, Plaintiffs respectfully request that this Court enter the declarations
requested herein and vacate the Resolution and the District’s actions of August 12, 2021,
and grant such other and further relief as the Court deems just and proper.
Respectfully submitted this 31st day of August 2021.
16
/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
and No Pipe Dream
LIST OF EXHIBITS
Exhibit 1- Resolution D-1367-08-21
Exhibit 2- City of Fort Collins Natural Areas NISO Letter
Exhibit 3- Save the Poudre August 11, 2021 Comment Letter
Exhibit 4- Enterprise’s May 5, 2021 SPAR permit application cover letter
Exhibit 5- City of Fort Collins SPAR Denial Letter
Exhibit 6- Technical Memo
Exhibit 7- NISP Alternative Analysis
Exhibit 8- Parcel Ownership Map
Exhibit 9- City of Fort Collins April 16, 2020 Memo
Exhibit 10- City Code (excerpt)
Exhibit 11- NISP Pipeline Map
Exhibit 12- Poudre River Management Plan
CERTIFICATE OF DELIVERY
I hereby certify that on this 31st day of August 2021, a true and correct copy of
the foregoing FIRST AMENDED COMPLAINT and all Exhibits thereto were filed
via Colorado Courts E-filing System.
The First Amended Complaint, all exhibits thereto, summons, and Motion to
Prepare and Certify Administrative Record are being personally served on Defendant
Northern Colorado Water Conservancy District on or about September 1, 2021. A return
of service will be filed.
As per Colo.R.Civ.Pro. 57 (j) and Colo.R.Civ.Pro. 5(b), this First Amended
Complaint was also served by Certified Mail/Return Receipt Requested on the State of
Colorado, Office of the Attorney General, 1300 Broadway, 10th Floor, Denver, CO
80203.
/s/ John M. Barth
John M. Barth