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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 - 028 - Motion For Partial DismissalLarimer 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. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, NORTHERN INTERGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE, and THE CITY OF FORT COLLINS, a Colorado home rule city and municipal corporation, Defendants. Attorneys for Northern Colorado Water Conservancy District and 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 DEFENDANTS NORTHERN COLORADO WATER CONSERVANCY DISTRICT AND NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE’S MOTION TO PARTIALLY DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT Defendants, the Northern Colorado Water Conservancy District (“Northern Water”) and Northern Integrated Supply Project Water Activity Enterprise (“NISP Enterprise”), by and through their undersigned attorneys, hereby move under C.R.C.P. 12(b)(5) for partial dismissal of 1 Plaintiffs’ Amended Complaint for failure to state a claim upon which relief can be granted. As grounds therefor, Northern Water and the NISP Enterprise state as follows: C.R.C.P. 121 § 1-15(8) CERTIFICATION Pursuant to C.R.C.P. 121 § 1-15(8), counsel for Northern Water and the NISP Enterprise certify that they conferred with the other parties regarding the relief requested in this Motion. The City of Fort Collins takes no position on this Motion. Plaintiffs oppose this Motion. INTRODUCTION The NISP Enterprise filed a land use application for components of its water supply project with the City of Fort Collins’ Planning and Zoning Commission (“the Planning Commission”) that was ultimately disapproved. Pursuant to state statute, Northern Water’s Board of Directors (“the Board”)—which is also the governing body of the NISP Enterprise—adopted a resolution to (1) overturn that disapproval and proceed with the project and (2) approve a development plan for the project’s construction. Through this lawsuit, Plaintiffs seek to vacate the Board’s resolution. Plaintiffs’ legal theories fall into two categories of claims: (1) that the Board did not have the authority or properly overrule the Planning Commission’s disapproval under the Location and Extent Review Statute, C.R.S. § 31-23-209 (“L&E Statute”), and (2) that the Board did not have the authority to approve a site specific development plan for construction of the project under the Vested Property Rights Act, C.R.S. §§ 24-68-101 et seq. This Motion addresses Plaintiffs’ first category of claims only. Under the facts alleged in their Amended Complaint, Plaintiffs are not entitled to relief under these claims because as a matter of law the Board had the authority and properly overturned the Planning Commission pursuant to the L&E Statute. Northern Water and the NISP Enterprise believe Plaintiffs’ second category of claims are equally flawed but recognize their disposition may require consideration by the Court of potentially relevant facts. Therefore, pursuant to C.R.C.P. 12(b)(5), Northern Water and the 2 NISP Enterprise move the Court to dismiss Plaintiffs’ claims relating to the Board’s action under the L&E Statute. BACKGROUND AND PLAINTIFFS’ ALLEGED FACTS I. The NISP Enterprise and the Northern Integrated Supply Project The NISP Enterprise is a TABOR “enterprise” owned and controlled by Northern Water. Amend. Compl., ¶¶ 11, 12; see also C.R.S. §§ 37-45.1-101 et seq. (water activity enterprise statute). Northern Water is a water conservancy district organized pursuant to the Water Conservancy Act, C.R.S. §§ 37-45-101, et seq. Amend. Compl., ¶ 11. The NISP Enterprise is developing a new water supply project called the Northern Integrated Supply Project (“NISP”). Id., ¶ 16. NISP 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. Id., Ex. 6 at 2. 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. Id., Ex. 1 at 1. The NISP Enterprise has already obtained several of these permits and approvals. See id. II. Location and Extent Review and Fort Collins’ “SPAR” Process. The L&E Statute, found in section 31-23-209, requires public projects proposed within a municipality’s boundaries to undertake a “location, character, and extent” review by the city’s planning commission. If the planning commission disapproves of the proposed project, the governmental body of the public entity authorizing the project can overrule the disapproval. § 31- 23-209. 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 3 “LUC”] §§ 2.1.3(E)(2), 2.16.2(G). Under SPAR, the Planning Commission assesses whether a proposed public project meets siting and location 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 be overruled by the governmental body of the public entity proposing the project. Id., § 2.16.2(L). III. The NISP Enterprise’s SPAR Application. Only two components of NISP are located within Fort Collins city limits and were reviewed by the Planning Commission under SPAR. See Amend. Compl., Ex. 6 at 1. Those components are a water intake structure from the Poudre River and a pipeline within Fort Collins city limits that will deliver the water to end-users (“the Poudre River Intake and Pipeline”). Id. The NISP Enterprise submitted its SPAR application on May 5, 2021, consisting of maps, plans, studies, and reports relating to Poudre River Intake and Pipeline. Amend. Compl., Ex. 4. On June 30, the Planning Commission held a hearing and denied the application by a vote of 3-2. Id., ¶ 38 & Ex. 1 at 1. On August 12, the Board held a proceeding after which it adopted Resolution D-1367-08- 21 (“Resolution”). Id., ¶ 39. The Resolution, among other actions, “resolves that the application disapproved by the Fort Collins Planning and Zoning Commission is hereby overturned by a vote of not less than two thirds of the board membership.” Id., Ex. 1 at 2. IV. Procedural Background. Plaintiffs initiated this action originally seeking a preliminary injunction from this Court to enjoin the SPAR hearing before the Planning Commission. See Plaintiffs’ Complaint for Declaratory Relief Under C.R.C.P. 57; Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency Hearing. The Court denied that motion, 4 determining that Plaintiffs had not demonstrated imminent harm. See Order Denying Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency Hearing. In accordance with the Court’s July 15 Scheduling Order, Plaintiffs filed an amended complaint under C.R.C.P. 57, or alternatively under C.R.C.P. 106, seeking to vacate the Resolution, including that portion of the Resolution that overturned the Planning Commission’s disapproval of the Poudre River Intake and Pipeline pursuant to the L&E Statute. Amend. Compl. Northern Water and the NISP Enterprise respond with this Motion to dismiss Plaintiffs’ claims relating to the L&E Statute. STANDARD OF REVIEW A C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim tests the legal sufficiency of a complaint, Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 385 (Colo. 2001), and a “partial” motion to dismiss under C.R.C.P. 12(b)(5) may be directed at the legal sufficiency of some but not all of the claims raised in the complaint, see e.g., Wilson v. Kennedy, 2020 COA 122, ¶¶ 1-3, 490 P.3d 855, 857. When considering a motion to dismiss pursuant to C.R.C.P. 12(b)(5), a court considers whether the facts alleged do not, as a matter of law, support a plausible claim for relief under any theory of the law. Pub. Serv. Co. of Colo., 27 P.3d at 386. ARGUMENT I. Northern Water’s Board Acted within Its Authority under the L&E Statute to Overrule Disapproval of the NISP Enterprise’s Application. The L&E Statute mandates the location-and-extent-review process for public projects and explicitly authorized the Board to overrule the Planning Commission. Plaintiffs’ several theories as to why the Board did not have this authority or why the statute is invalid fail as a matter of law. 5 A. The L&E Statute Authorizes Public Entities to Overrule Local Government Disapproval of Public Projects. The L&E Statute sets forth a specialized land-use review procedure for public projects— referred to as location and extent review—that substitutes for the traditional zoning procedures municipalities use for other developments. The statute provides that “no public building or structure” shall be constructed within a municipality until the “location, character, and extent thereof has been submitted for approval” to the municipality’s planning commission. § 31-23- 209. If the planning commission disapproves the application, then it must “communicate its reasons” to the applicant, but the “planning commission’s disapproval may be overruled by [the governmental body having jurisdiction] by a vote of not less than two-thirds of its membership.” Id. The practical effect of this statute is that “a public entity, such as a special district, must apply for location and extent review of a proposed project to accommodate where feasible, the zoning interests of the [city], but the governing body of that entity ultimately has authority to override the [city’s] disapproval of the project.” Bd. of Cty. Comm’rs of Boulder v. Hygiene Fire Protection Dist., 221 P.3d 1063, 1068 (Colo. 2009).1 If the public entity overrules the planning commission and determines that “construction is to proceed, the constructing entity must determine to proceed in the face of the [city’s] objection.” Blue River Defense Comm. v. Town of Silverthorne, 516 P.2d 452, 454 (Colo. App. 1973). In this way, the L&E Statute arranges the competing powers of local governments. It recognizes that special purpose governments, with the full powers granted to them by the state, 1 There are no reported decisions analyzing the location and extent review statute for municipalities, but there are several decisions reviewing the analogous statute for counties. Because these statutes are so similar, decisions addressing section 30-28-110, C.R.S. should be authoritative with respect to section 31-23-209 as well. Compare § 30-28-110(1)(a) with § 31-23- 209. 6 will at times propose projects running through the local jurisdictions of cities and counties. Under the common law, these special purpose governments could generally ignore the land use regulations that would otherwise apply to private developers under the theory that they were vested with authority from the state to carry out specially defined functions for the public good. See 8 McQuillin Mun. Corp. § 25:19 (3d ed. 2021). Long ago, the General Assembly enacted the location-and-extent review process to strike a compromise: specialized governments could no longer simply ignore land-use laws, but the input required from the city or county could ultimately be overruled. See Hygiene Fire Dist., 221 P.3d at 1067-68 (commenting that location-and-extent review “codifies the long-standing rule that other political subdivisions may override the restrictions of county or municipal zoning regulations” and serves as “basically a courtesy review”). Therefore, the statute authorized the Board to overrule the Planning Commission’s disapproval of the Poudre River Intake and Pipeline Project. See e.g., Reber v. S. Lakewood Sanitation Dist., 362 P.2d 877, 879–80 (Colo. 1961) (water sanitation district had authority to overrule City of Lakewood’s disapproval of proposed sewage disposal plant). B. Northern Water’s Board Acts on Behalf of the NISP Enterprise Plaintiffs take issue with the fact that the Board of Northern Water adopted the Resolution even though the NISP Enterprise submitted the SPAR application to the Planning Commission. See Amend. Compl., ¶ 57. The Board, however, was the appropriate “governing body” under the L&E Statute with the authority to consider and ultimately overrule the Planning Commission. Under the L&E Statute, the Planning Commission’s disapproval of the location, character, and extent submitted to it may be overruled by “the governmental body having jurisdiction” by “a vote of not less than two-thirds of its membership.” § 31-23-209. The NISP Enterprise is a “water 7 activity enterprise” owned and controlled by Northern Water. See § 37-45.1-102(4), C.R.S. (defining “water activity enterprise”). Under the statute governing water activity enterprises, “[t]he governing body of the water activity enterprise shall be the governing body of the district which owns the enterprise. . . .” § 37-45.1-103(3), C.R.S.; see also Bennett Bear Creek Farm Water & San. Dist. v. City & Cty. of Denver, 928 P.2d 1254, 1267 n.18 (Colo. 1996) (“Local governments are also empowered to establish water activity enterprises under control of the governing body of such ‘districts.’”). Here, the NISP Enterprise’s “governing body” is the Board of Northern Water. Therefore, as a matter of law, the Board was the appropriate body to overturn the Planning Commission’s disapproval under the L&E Statute. C. The Board Was Not Required to “Own or Operate” the Parcels Needed for Construction of the Project at the Time of its SPAR Application. Plaintiffs also allege that the Board was without authority because the SPAR process was inapplicable to the application. Plaintiffs’ argue that the SPAR process should not have applied to the Poudre Intake and Pipeline because 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. Amend. Compl., ¶ 23. As previously briefed in the NISP Enterprise and the City of Fort Collins’ responses to Plaintiffs’ motion for a preliminary injunction, this argument misinterprets the LUC and would contravene the L&E Statute. 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 proposed project will be constructed. Plaintiffs apparently find this condition in the LUC’s usage of the past tense “owned or operated.” 8 The Fort Collins Municipal Code, which incorporates the LUC, see Fort Collins Muni. Code § 29-1, expressly states that when interpreting its provisions, the past tense must be interpreted to include the present and future tenses, id. § 1-2 (“Tense. Words used in the present or past tense include the future as well as the present or past.”). Additionally, Plaintiffs’ chosen interpretation would contravene the statute SPAR was designed to implement, which does not contain any suggestion that the underlying land must be owned by the entity that intends to construct improvements upon it before location-and-extent review can proceed. § 31-23-209. Furthermore, from a practical standpoint, public projects are often reviewed and permitted before all of the property rights are obtained for construction. Plaintiffs’ interpretation would require the public entity to take on considerable added risk and expense before knowing whether the project could succeed past the permitting stage, which often requires numerous permits and approvals from multiple government agencies and jurisdictions. Therefore, Plaintiffs’ argument relies on an erroneous interpretation of the LUC and does not affect the Board’s lawful authority under the L&E Statute to overrule the Planning Commission. D. The Board’s Action to Overturn the Planning Commission Was a Quasi- Legislative Act to Which Due Process Requirements Do Not Apply. Plaintiffs also raise a series of due process concerns with the August 12 proceeding the Board held during which it adopted its Resolution. Specifically, Plaintiffs assert that their procedural due process rights were violated because (1) the Board had a conflict of interest because the NISP Enterprise is owned by Northern Water, (2) the Board did not previously adopt any criteria or procedures to govern its decision, and (3) the L&E Statute is facially unconstitutional because it does not adopt any due process standards and procedures for these types of decisions. Amend Compl., ¶¶ 59(g)-(i). 9 Plaintiffs’ due process claims fail as a matter of law because the Board’s decision to overturn the Planning Commission’s disapproval constituted a quasi-legislative action, which does not implicate the safeguards of procedural due process. The Colorado Supreme Court has set forth the standard for distinguishing between quasi-judicial and quasi-legislative actions. Quasi-judicial action “involves the determination of the rights, duties, or obligations of specific individuals on the basis of the application of presently existing legal standards or policy considerations to past or present facts developed at a hearing conducted for the purpose of resolving the particular interests in question.” Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 757 P.2d 622, 625 (Colo. 1988). The Court has set forth several factors indicative of quasi-judicial action: (1) a state or local law required notice to the community; (2) a state or local law required a public hearing at which concerned citizens are given an opportunity to be heard and present evidence; and (3) a state or local law require[d] the body to make a determination by applying the facts of a specific case to certain criteria established by law. Snyder v. City of Lakewood, 542 P.2d 371, 374 (Colo. 1975), overruled on other grounds by Margolis v. Dist. Court, 638 P.2d 297 (Colo. 1981). Quasi-legislative action, by contrast, is “usually reflective of some public policy relating to matters of a permanent or general character, [and is] not normally restricted to identifiable persons or groups, and [is] usually prospective in nature.” Cherry Hills Resort Dev. Co., 757 P.2d at 526 Applying this standard, the Court held in Farmers Water Development Co. v. Colorado Water Conservation Board, that the Colorado Water Conservation Board’s (“CWCB”) decision to file an application to appropriate an instream flow right “to preserve the natural environment” was a quasi-legislative action because the decision involved a policy determination within the CWCB’s discretion. 2015 CO 21, ¶ 26, 346 P.3d 52, 59-60. The court rejected the argument that the CWCB’s decision was a quasi-judicial action even though the applicable in-stream flow statute 10 required the CWCB to make specific findings that the appropriation would serve the purpose of the statute and required notice and public participation. Id. at 60. Here, as Plaintiffs note, the L&E Statute does not set forth any requirements for notice, requirements for public comment, or evaluation criteria for the public entity to apply when deciding to overturn a planning commission’s disapproval of its project. Amend. Compl., ¶ 59(i). Contrary to Plaintiffs’ contention that this renders the statute facially unconstitutional as a quasi- judicial process, it actually strongly suggests that the statute contemplates a quasi-legislative action for this decision. See Snyder, 542 P.2d at 374. Furthermore, similar to the discretionary and policy-driven decision the in-stream flow statute required in Farmers Water Development Co., the L&E Statute requires the public entity proposing the project to determine whether the project should proceed despite disapproval from the city. See Blue River Defense Committee, 516 P.2d at 454 (“[I]f construction is to proceed, the constructing entity must determine to proceed in the face of the county’s objection.”). This decision is policy-oriented and objectives-based, requiring a judgment that balances the needs of the project with the relationship with, and recommendations from, the city and its constituents. The public proponent does not engage in an exercise that retrospectively second-guesses whether the planning commission correctly applied its land use code to the project; rather, the proponent prospectively determines, despite disapproval of the city, whether its project should continue towards development. This decision is inherently discretionary, policy driven, forward-looking, and therefore quasi-legislative in nature. See City and Cty. of Denver v. Eggert, 647 P.2d at 222 (noting that quasi-legislative action “requires the balancing of questions of judgment and discretion”). 11 Ultimately, the public proponent’s decision must have a rational basis, Bennett Bear Creek Farm Water & San Dist., 928 P.2d at 1262 (stating that “the rational basis test” applies to “quasi- legislative action”), but the entity need not extend the safeguards of due process to the decision-making process, which do not apply, see State Farm Mut. Auto Ins. Co. v. City of Lakewood, 788 P.2d 808, 814 (Colo. 1990) (“[W]hen a municipal body is acting in a quasi- legislative rather than a quasi-judicial capacity, there is no constitutional requirement for notice and a hearing.”); Farmers Water Dev. Co., 346 P.3d at 58 (noting that quasi-judicial action requires procedural due process but quasi-legislative action does not). Although Northern Water did give notice and an opportunity for interested persons to comment on its decision, it was not required by law. See State Farm Mut. Auto Ins. Co., 788 P.2d at 814 (“[T]he granting of notice and an opportunity to be heard by the city council was gratuitous, and not constitutionally required.”). Accordingly, Plaintiffs’ due process challenges to the Board’s proceeding fail as a matter of law. E. Plaintiffs Do Not Have a Constitutionally Protected Property Interest Implicating the Due Process Clauses of the Federal and State Constitutions. Even if the Board’s decision to overturn the Planning Commission was quasi-judicial in nature, Plaintiffs’ due process grievances would still fail because Plaintiffs do not have a property or liberty interest at stake in this proceeding for which due process is implicated. “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘property’ or ‘liberty.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). While the Due Process clause protects property interests, state law largely determines what is or is not a protected property interest. Hillside Cmty. Church v. Olson, 58 P.3d 1021, 1025 (Colo. 2002). In general, protected property interests include physical property and certain entitled benefits. Id. The procedures governing property, however, are not themselves protected property interests because “there can be no property right in mere procedure.” Id. at 1026. 12 The Colorado Supreme Court has held that “procedural guarantees stemming from state law or local ordinance do not create a constitutionally cognizable property interest.” Id. at 1023. In Hillside Community Church, the City of Golden issued a special use permit to a church without holding a public hearing at all as required by the city’s municipal code. Id. at 1024. Opposing neighbors filed suit, alleging that the city’s failure to hold a public hearing deprived them of their due process rights. Id. The Court determined that the neighbors “did not have a cognizable property interest in their claimed right to notice of, and opportunity to participate in, a special use permit hearing. . . .” Id. at 1027. The holding in Hillside Community Church “broadly addresses the nature of property rights within the land use context.” Whatley v. Summit Cty. Bd. of Cty. Comm’rs, 77 P.3d 793, 798 (Colo. App. 2003). In Whatley, the Court of Appeals held that the plaintiffs’ did not have a protected property right in the procedures established under the PUD Act and the Summit County Land Use Code to amend a Planned Unit Development. Id. at 799. And in JJR 1, LLC v. Mt. Crested Butte, the court of appeals likewise held that a group of local landowners did not have a protected property right in Mount Crested Butte’s notice and participation procedures for its proposed design review of a developer’s building permit application. 160 P.3d 365, 371 (Colo. App. 2007); see also Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211 (10th Cir. 2003) (rejecting plaintiff’s claim that it had a property right in the Town of Parker’s review procedures for developer’s special use permit application). Plaintiffs’ complaint does not allege facts establishing their property interest at stake in the Board’s August 12, 2021 proceeding that would implicate the Due Process clauses of the federal and Colorado constitutions. Rather, Plaintiffs simply assume that they have a constitutionally protected property right in the hearing procedures the Board conducted when considering whether 13 to overturn the Planning Commission’s decision. Those procedures, Plaintiffs contend, should have ensured impartiality and should have been conducted under previously adopted standards and criteria. But just as the complaining neighbors in Hillside Community Church were not deprived of a property interest when the City of Golden failed to hold a public hearing before issuing a special use permit to the church, Plaintiffs could not be deprived of a property interest even assuming defective proceedings from the Board. Therefore, even assuming the Board took a quasi- judicial action when it overturned the Planning Commission, the Plaintiffs’ failure to establish a protected property interest is fatal to their due process claims. F. The L&E Statute Is Not Unconstitutionally Vague. Finally, Plaintiffs allege that the L&E Statute is unconstitutionally vague. This argument likewise fails as a matter of law because the void-for-vagueness doctrine only applies to penal statutes; even if it did apply here, the L&E Statute is sufficiently definite in its meaning and applicability. Plaintiffs face an especially difficult burden when raising this challenge. A statute is presumed constitutional, the challenging party must prove its unconstitutionality beyond a reasonable doubt, see People v. Longoria, 862 P.2d 266, 270 (Colo. 1993), and the challenging party must show that the statute is impermissibly vague in all of its applications, Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo. 1988) ((citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982)). The vagueness doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); see also People v. Gross, 830 P.2d 933, 937 (Colo. 1992) (stating 14 that the vagueness doctrine “provides assurance that a penal statute gives fair warning of proscribed conduct”). The level of scrutiny used in reviewing a vagueness challenge depends on the nature of the statute. Less specificity is required when a statute is an economic regulation, imposes civil penalties, or contains a scienter requirement. Parrish, 758 P.2d at 1366 (citing Flipside, 455 U.S. at 498-99). More specificity is required when the statute imposes criminal penalties or threatens to inhibit the exercise of constitutionally protected rights, such as free speech. Id. Here, Plaintiffs fall far short of meeting their heightened burden for several reasons. In the first instance, it is unclear that the void-for-vagueness doctrine applies at all to non-penal statutes such as the L&E Statute. See In re Bullard, 206 S.E.2d 305, 307 (N.C. 1974) (holding state statute was not unconstitutionally vague in part because it “is not a penal statute . . . . It is a procedural statute.”). Colorado courts have rarely if ever applied the doctrine outside the context of criminal or other penal laws. See e.g., People In Interest of L.C., 486 P.3d 1168 (Colo. App. 2017) (concealed weapon statute); People v. Perez-Rodriguez, 411 P.3d 259 (Colo. App. 2017) (aggravated incest statute); People v. Richardson, 181 P.3d 340 (Colo. App. 2007) (stalking harassment statute). The L&E Statute merely sets forth a land-use-review procedure that arranges the competing powers of local governments. It is not “[a] law that defines an offense and prescribes its corresponding fine, penalty or punishment.” See Penal Statute, Black’s Law Dictionary (7th ed. 1999). Furthermore, a “litigant cannot complain of the vagueness of the law as applied to the conduct of others.” People v. Graves, 2016 CO 15, ¶ 19, 368 P.3d 317, 325 (citing Flipside, 455 U.S. at 495). Here, Plaintiffs are not challenging the L&E Statute’s vagueness with respect to their own actions; they are challenging it with respect to what procedures it requires of the Board. Thus, 15 even if the void-for-vagueness doctrine is applicable in this context, Plaintiffs cannot challenge the L&E Statute on vagueness grounds. Finally, even if the doctrine does apply, the L&E Statute would be reviewed under the most lenient level of scrutiny because it is not a criminal law, it does not impose penalties of any kind, and it does not implicate constitutionally protected rights. The L&E Statute is sufficiently definite and easily meets this standard. Under no uncertain terms it requires public entities to obtain location and siting review of their projects from the city’s planning commission, and, upon disapproval, allows those public entities to overrule the disapproval. Colorado courts have not had difficulty interpreting the decision faced by a public entity when determining whether to overturn the planning commission. See Hygiene Fire Protection Dist., 221 P.3d at 1068; Blue River Defense Comm., 516 P.2d at 454; Reber, 362 P.2d at 879-80. As discussed above, that decision is inherently discretionary and policy driven—not standards-based—and only requires a rational basis for the decision to move forward with the project. CONCLUSION As a matter of law, Plaintiffs are not entitled to relief for their claims challenging the Board’s action to overturn the Planning Commission’s disapproval pursuant to the L&E Statute. Under Rule 12(b)(5), the Court should therefore dismiss this portion of Plaintiffs’ claims, found in paragraphs 59(a), 59(b), 59(f), 59(g), 59(h), 59(i), 60, 66(a), 66(b), 66(f), 66(g), and 66(h) of their Amended Complaint. A proposed order is attached hereto. Upon entry of such an order, Northern Water and the NISP Enterprise will file an answer within 14 days responding to the remainder of Plaintiffs’ claims challenging Northern Water’s authority to approve a site-specific development plan and create a vested right for the Poudre River Intake and Pipeline pursuant to the Vested Property Rights Act. 16 Respectfully submitted: September 28, 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 Defendants, Northern Colorado Water Conservancy District and 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. 17 CERTIFICATE OF SERVICE I certify that on September 28, 2021, a true and correct copy of the foregoing DEFENDANTS NORTHERN COLORADO WATER CONSERVANCY DISTRICT AND NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE’S MOTION TO PARTIALLY DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT was served via the Colorado Courts E-Filing System, on the following: Name Attorney Organization City of Fort Collins Marni L Nathan Kloster Nathan Dumm and Mayer PC City of Fort Collins Nicholas Poppe Nathan Dumm and Mayer PC City of Fort Collins John R Duval City Attorneys Office No Pipe Dream Corp John Mclain Barth John M Barth Attorney at Law Save the Poudre John Mclain Barth John M Barth Attorney at Law S/ Meichell Walsh 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