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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 - 016C - Exhibit 3 1 LAW OFFICE OF JOHN M. BARTH ___________________________________________________ P.O. BOX 409 HYGIENE, COLORADO 80533 (303) 774-8868 BARTHLAWOFFICE@GMAIL.COM August 11, 2021 By submission to eComment website and by request via email to Peggy Montaño (pmontano@troutlaw.com) Northern Colorado Water Conservancy District Board of Directors Municipal Subdistrict of Northern Colorado Water Conservancy District 220 Water Avenue Berthoud, CO 80513 Re: Comments: August 12, 2021 Public Hearing-Response to the City of Fort Collins Site Plan Advisory Review (SPAR) Process for the Northern Integrated Supply Project (NISP). To the Board: On behalf of Save the Poudre and No Pipe Dream Corporation and their numerous members living, working, and recreating in Larimer County, Colorado, I submit the following comments on the NISP SPAR public hearing to commence at 1:30 pm on August 12, 2021 before the Northern Board and/or Municipal Subdistrict Board. 1. Conflict of Interest. To the extent Northern intends the August 12, 2021 hearing to constitute a quasi-judicial action, the Board adjudicating the NISP SPAR application has an inherent conflict of interest. The NISP SPAR applicant is the Northern Integrated Supply Project Water Activity Enterprise. That entity is owned, controlled, and/or operated by the Northern Colorado Water Conservancy District. This public hearing is being held by Northern’s Board of Directors. The purpose of the hearing is to determine whether to overturn the denial of the NISP SPAR application by the City of Fort Collins. In essence, the Northern Board would be adjudicating its own SPAR land use application. As such, the entire Northern Board has an inherent conflict of interest and must recuse itself from adjudicating any aspect of the NISP SPAR application. Given the Board’s inherent conflict of interest, it may not adjudicate its own NISP SPAR application and the decision of the City of Fort Collins must remain in effect. In the event the Board refuses to recuse itself from adjudicating the NISP SPAR application, any action taken by the Board is tainted by this conflict of interest and does not constitute a legal quasi-judicial action. 2. Lack of published procedures and legal criteria for the Board’s action. DATE FILED: August 31, 2021 10:40 AM FILING ID: 631C0FDA58B55 CASE NUMBER: 2021CV30425 2 In order to qualify as a legal quasi-judicial proceeding, the hearing must be subject to preexisting promulgated procedures for the hearing as well as preexisting standards or criteria to guide the Board’s decision making. Without such procedures and standards, the Board will be acting arbitrarily, capriciously, and with an abuse of unlimited discretion. In our review of the Northern’s webpage and other materials we have been unable to locate any preexisting promulgated procedures that apply to all public hearings before the Board. We also have been unable to find any notice of this public hearing published in a local Larimer County newspaper. Additionally, our research has been unable to identify any preexisting promulgated standards or criteria to guide the Board in making a decision on whether to overturn the City’s denial of the NISP SPAR application. Without any preexisting legal standards, procedures, or criteria for Board decision making, any final action by the Board will be arbitrary, capricious, an abuse of discretion, and in excess of the jurisdiction of the Board. Sherman v. Colorado Springs Planning Commission, 763 P.2d 292 (1988). Further, any such action by the Board, as applied to the NISP SPAR application, will violate Save the Poudre and its members due process rights protected by the Colorado Constitution. Finally, in the event the Board claims it has adopted procedures, standards, and/or criteria for the hearing, any such rules or regulations are void for unconstitutional vagueness because they convey unreviewable discretion to the Board. Id. Finally, the Board’s failure to promulgate procedures and legal standards that apply to the hearing impede our ability to provide substantive comments on the Board’s proposed action. 3. The Board’s action is not entitled to deference. Because the Board has no preexisting standards or criteria for taking action on a NISP SPAR application, the only such preexisting standards are those contained in the City’s land use code. Thus, the City’s SPAR regulations must be applied in the hearing. The City’s interpretation and application of those SPAR standards are entitled to deference. Because the Board did not promulgate the City’s SPAR regulations, its interpretation of those regulations is not entitled to deference. The City has reviewed Northern’s SPAR application, interpreted its SPAR land use regulations, and concluded that the application does not comply with the regulations and must be denied. The Board has no expertise in promulgating, interpreting, or applying the City’s NISP SPAR regulations. The Board has no independently promulgated SPAR regulations to guide its decision. As such, any action by the Board that is inconsistent with the action by the City is arbitrary, capricious, an abuse of discretion, and in excess of the jurisdiction of the Board. 4. Northern does not own or operate the parcels. Northern submitted its SPAR permit application to the City on May 5, 2021. The City’s land use regulations require a SPAR permit applicant to own or operate the parcels affected by the project at the time of submission of a SPAR application. City Land Use Code Division 2.1.3(E)(1). Northern did not, and does not, own the parcels that are the subject of its NISP SPAR development application. In fact, the City of Fort Collins owns and operates the parcels. 3 On June 29, 2021 Save the Poudre submitted a comment letter to the City requesting denial of Northern’s SPAR application because Northern did not own the parcels that are the subject of the development. Our June 29, 2021 comment letter is attached, as well as the exhibit thereto. We incorporate herein by reference our June 29, 2021 comment letter in its entirety and all arguments therein. In the event the Board takes final action in the public hearing, it must deny any request to overturn the action by the City because Northern was not, and is not, the owner of the parcels that are the subject of its NISP SPAR application. Conclusion. Finally, in the event the Board takes final action in the public hearing, please explain during the public hearing whether the 28-day statute of limitations under Colorado Rule of Civil Procedure 106(a)(4) will commence at the conclusion of the hearing, or whether the statute of limitations will commence upon issuance of a future written decision by the Board. Again, we were unable to identify any preexisting Board regulations explaining what constitutes final agency action in a public hearing by the Board. Sincerely, s/ John Barth Exhibits cc: Peggy Montaño (pmontano@troutlaw.com), Trout & Raley John Duval (jduval@fcgov.com) City Attorney’s Office, City of Fort Collins