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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 - 031 - City Of Fort Collins Answer And Cross ClaimDISTRICT COURT, LARIMER COUNTY, COLORADO Larimer County Justice Center 201 Laporte Avenue, Suite 100 Fort Collins, CO 80521-2761 (970) 498-6100 SAVE THE POUDRE, and NO PIPE DREAM COPRPORATION Plaintiffs, v. NORTHERN COLORADO WATER CONSERVANCY DISTRICT, NORTHERN INTERGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE, THE CITY OF FORT COLLINS, a Colorado home rule city and municipal corporation Defendants. COURT USE ONLY Attorneys for the City of Fort Collins: Marni Nathan Kloster, Reg. No. 34947 Nicholas C. Poppe, Reg. No. 47507 NATHAN DUMM & MAYER P.C. 7900 E. Union Avenue, Suite 600 Denver, CO 80237-2776 Phone Number: (303) 691-3737 Email: MNathan@ndm-law.com NPoppe@ndm-law.com John R. Duval, Reg. No. 10185 FORT COLLINS CITY ATTORNEY’S OFFICE P.O. Box 580 Fort Collins, CO 80522 Phone: (970) 221-6520 Email: jduval@fcgov.com Case Number: 21CV30425 Courtroom: 5B CITY OF FORT COLLINS ANSWER AND CROSS CLAIM COMES NOW the Defendant City of Fort Collins (“City”), by and through its attorneys at Nathan Dumm & Mayer P.C. and the Fort Collins City Attorney’s Office, and respectfully DATE FILED: September 28, 2021 3:44 PM FILING ID: F078C3C1782E8 CASE NUMBER: 2021CV30425 2 submits the following: (i) Answer in response to the First Amended Complaint (“Complaint”) of Plaintiffs Save the Poudre and No Pipe Dream Corporation (jointly, the “Plaintiffs”) and (ii) Cross Claim against Defendants Northern Colorado Water Conservancy District (the “District”) and Northern Integrated Supply Project Water Activity Enterprise (the “Enterprise), with the District and Enterprise hereafter referred to jointly as “Northern,” seeking a declaratory judgment under C.R.C.P. 57 and the Uniform Declaratory Judgments Law, and judicial review under C.R.C.P. 106(a)(4) and, in support thereof, states as follows. ANSWER 1. The allegations in paragraph 1 of the Complaint are conclusory while at the same time setting forth legal conclusions and, therefore, no response is required. To the extent any allegations in paragraph 1 are determined to be factual, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 2. The allegations in paragraph 2 of the Complaint are conclusory while at the same time setting forth legal conclusions and, therefore, no response is required. To the extent any allegations in paragraph 2 are determined to be factual, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 3. The allegations in paragraph 3 of the Complaint are conclusory while at the same time setting forth legal conclusions and, therefore, no response is required. The City nevertheless agrees that venue for this action is properly with this Court. 4. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 4 of the Complaint and, therefore, denies said allegations. 5. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 5 of the Complaint and, therefore, denies said allegations. 6. The City admits the allegations in paragraph 6 of the Complaint that the City and its taxpayers have invested tens of millions of dollars to conserve in perpetuity ecological resources within the City, including its natural areas, but the City is without knowledge or information sufficient to either admit or deny the remaining allegations in paragraph 6 and, therefore, denies said allegations 7. The City admits that the allegations of paragraph 7 of the Complaint refer to and characterize certain statements in the City’s Land Conservation and Stewardship Board’s memorandum attached as Exhibit 2 to the Complaint, which memorandum speaks for itself and, therefore, a response is not required. The City denies any remaining allegations of paragraph 7 inconsistent with the plain language of Exhibit 2. 8. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 8 of the Complaint and, therefore, denies said allegations. 3 9. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 9 of the Complaint and, therefore, denies said allegations. 10. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 10 of the Complaint and, therefore, denies said allegations. 11. The City admits the allegations of paragraph 11 of the Complaint. 12. The City admits the allegations of paragraph 12 of the Complaint. 13. The City admits the allegations of paragraph 13 of the Complaint. 14. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 14 of the Complaint and, therefore, denies said allegations. 15. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 15 of the Complaint and, therefore, denies said allegations. 16. The City admits the allegations of paragraph 16 of the Complaint to the extent they identify NISP as a project including the Poudre Intake Diversion Structure and Poudre Intake Pipeline within the City’s boundaries as proposed by the Enterprise’s SPAR land use application filed with the City, but otherwise the SPAR land use application and related materials speak for themselves. As to the remaining allegations of paragraph 16, the City is without knowledge or information sufficient to either admit or deny those allegations and, therefore, denies them. 17. The City admits the allegations of paragraph 17 of the Complaint. 18. The City admits the allegations of paragraph 18 of the Complaint. 19. The City admits the allegations of paragraph 19 of the Complaint. 20. The City admits the allegations of paragraph 20 of the Complaint. 21. The City admits the allegations of paragraph 21 of the Complaint. 22. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 22 of the Complaint and, therefore, denies said allegations. 23. The City admits the allegations of paragraph 23 of the Complaint. 24. While the City Manager’s statements quoted in paragraph 24 of the Complaint from Complaint Exhibit 9 speak for themselves, the City admits the quotations set forth in paragraph 24. 4 25. The allegations in paragraph 25 of the Complaint are conclusory while at the same time setting forth legal conclusions and, therefore, no response is required. In addition, LUC Section 2.1.3(E)(1) speaks for itself. To the extent any allegations in paragraph 25 are determined to be factual, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 26. The City admits the allegations of paragraph 26 of the Complaint. 27. The City admits the allegations of paragraph 27 of the Complaint. 28. The City admits the allegations of paragraph 28 of the Complaint. 29. The City admits the allegations of paragraph 29 of the Complaint. 30. The City’s Management Plan speaks for itself, but the City admits the allegations of paragraph 30 of the Complaint to the extent they are consistent with the plain reading of the Management Plan. To the extent any of the allegations of paragraph 30 are inconsistent with such plain reading, the City denies such allegations. 31. The allegations in paragraph 31 of the Complaint are conclusory while setting forth legal conclusions and, therefore, no response is required. LUC Section 2.1.3(E)(1) speaks for itself. To the extent any allegations in paragraph 31 are determined to be factual, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 32. The City admits the allegations of paragraph 32 of the Complaint. 33. The City admits the allegations of paragraph 33 of the Complaint to the extent they refer to a voluntary transfer by the City. The extent they refer to an involuntary transfer, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 34. The City admits the allegations of paragraph 34 of the Complaint. 35. The City admits the allegations of paragraph 35 of the Complaint. 36. The City admits the allegations of paragraph 36 of the Complaint. 37. The City admits the allegations of paragraph 37 of the Complaint. 38. The City admits the allegations of paragraph 38 of the Complaint. 39. The City admits the allegations of paragraph 39 of the Complaint. 5 40. The City admits the allegations of paragraph 40 of the Complaint. 41. The City admits the allegations of paragraph 41 of the Complaint. 42. The City admits the allegations of paragraph 42 of the Complaint. 43. The City admits the allegations of paragraph 43 of the Complaint. 44. The City admits the allegations of paragraph 44 of the Complaint. 45. The City admits the allegations of paragraph 45 of the Complaint. 46. The City admits the allegations of paragraph 46 of the Complaint. 47. The City admits the allegations of paragraph 47 of the Complaint. 48. The City admits the allegations of paragraph 48 of the Complaint. 49. The City admits the allegations of paragraph 49 of the Complaint. 50. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 50 of the Complaint and, therefore, denies said allegations. 51. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 51 of the Complaint and, therefore, denies said allegations. 52. The City admits the allegations of paragraph 52 of the Complaint. 53. The City admits the allegations of paragraph 53 of the Complaint. 54. The City admits the allegations of paragraph 54 of the Complaint. 55. The City admits the allegations of paragraph 55 of the Complaint. 56. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 56 of the Complaint and, therefore, denies said allegations. 57. The City admits the allegations of paragraph 57 of the Complaint. 58. In response to paragraph 58 of the Complaint, the City restates and incorporates herein by referenced its responses to paragraphs 1 through 57 of the Complaint as stated above. 6 59. The City admits the allegations in subparagraphs c, d, and e of paragraph 59 as they relate to alleging that a controversy exists concerning whether the District has the legal authority under Article 68 of Title 24 of the Colorado Revised Statutes (the “Vested Rights Act”) to approve a “site specific development plan” to create a vested right as contemplated in the Vested Rights Act, but the City is without knowledge or information sufficient to either admit or deny the remaining allegations in paragraph 59 and in all its paragraphs and, therefore, the City denies said allegations. 60. Paragraph 60 of the Complaint contains Plaintiffs’ request for relief and does not require a response. 61. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 61 of the Complaint and, therefore, denies said allegations. 62. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 62 of the Complaint and, therefore, denies said allegations. 63. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 63 of the Complaint and, therefore, denies said allegations. 64. In response to paragraph 64 of the Complaint, the City restates and incorporates herein by referenced its responses to paragraphs 1 through 63 of the Complaint as stated above. 65. The allegations in paragraph 65 of the Complaint are conclusory while at the same time setting forth legal conclusions and, therefore, no response is required. To the extent any allegations in paragraph 65 are determined to be factual, the City is without knowledge or information sufficient to either admit or deny such allegations and, therefore, denies them. 66. Paragraph 66 of the Complaint contains Plaintiffs’ request for relief and does not require a response. To the extent any allegations in paragraph 66 are determined to be factual, the City incorporates herein by reference its responses to paragraph 59 of the Complaint as stated above in paragraph 59 of this Answer. 67. The City is without knowledge or information sufficient to either admit or deny the allegations in paragraph 67 of the Complaint and, therefore, denies said allegations. 68. The City denies any other allegations in the Complaint not heretofore admitted. AFFIRMATIVE DEFENSES 1. The Complaint fails to state a claim against the City upon which relief can be granted. 2. The Plaintiffs lack standing to bring this action. 7 3. The City reserves the right to add or delete affirmative defenses based on information gathered in the process of defending the Plaintiff’s claims. CROSS CLAIM General Allegations 1. The City is a Colorado home rule municipality organized and existing under Article XX of the Colorado Constitution. 2. The District is a water conservancy district organized and existing under Colorado’s Water Conservancy Act, with its principal office at 220 Water Avenue, Berthoud, Colorado 80513, in Larimer County, Colorado. 3. The Enterprise is a water activity enterprise of the District organized and existing under Article 45.1 in Title 37 of the Colorado Revised Statutes, with its principal office at 220 Water Avenue, Berthoud, Colorado 80513, in Larimer County, Colorado. 4. The Enterprise has been organized to develop and construct the Northern Integrated Supply Project (“NISP”). 5. NISP is proposed to supply raw water to fifteen towns and water districts in Northern Colorado and, to accomplish this, NISP includes, among other things, the construction of two new storage reservoirs, construction of various ditch and canal improvements, and installation of large underground pipelines for water exchanges and deliveries benefiting the fifteen towns and water districts. 6. On or about May 5, 2021, the Enterprise filed with the City its application for a site plan advisory review (“SPAR”) under Section 2.1.3(E) and Division 2.16 of the City’s Land Use Code (“LUC”). 7. The Enterprise’s SPAR application identified two components of NISP for the City’s SPAR review: (i) the “Poudre Intake Diversion Structure” to be located within the City’s boundaries northwest of the Mulberry and Lemay intersection (the “Diversion Structure”); and (ii) those portions of the “Poudre Intake Pipeline” to be located within the City’s boundaries traveling generally east and south from the Diversion Structure (the “Pipeline”). 8. The Diversion Structure and significant portions of the Pipeline are proposed to be located on real property owned by the City. 9. To date, the City has not conveyed or granted to the Enterprise any permanent property right to locate and install the Diversion Structure or the Pipeline on or within any City owned real property. 8 10. On June 30, 2021, the City’s Planning and Zoning Commission (the “Commission”) held and conducted a noticed public hearing on the Enterprises SPAR application and voted to deny the application. 11. On August 12, 2021, the boards of the District and of the Enterprise (jointly, the “Board”) held and conducted a noticed public hearing on the Commission’s denial of the Enterprise’s SPAR application for the Diversion Structure and Pipeline and voted to overturn the Commission’s denial as set out in the Board’s Resolution D-1367-08-21, a copy of which is attached as Exhibit “A” and incorporated by reference (the “Resolution”). 12. Section 2 of the Resolution states that the Board approves a “site specific development plan as provided in C.R.S. Section § 24-68-101, et seq. for the” Diversion Structure and Pipeline. 13. Section 3 of the Resolution describes the “site specific plans” for the Diversion Structure and Pipeline as attached to the Resolution as “Exhibit B”. 14. In Section 6 of the Resolution, the Board “directs that this site specific development plan be published in the Fort Collins Coloradoan within 14 days.” 15. Article 68 in Title 24 of the Colorado Revised Statutes sets forth the statutory authority and process for establishing a “vested property right” to undertake and complete the development and use of property under the terms and conditions of a “site specific development plan” approved by a “local government” (the “Vested Rights Statutes”). 16. Section 24-68-102(2) of the Vested Rights Statutes defines “local government” as this term is used in the Vested Rights Statutes, which section reads in full: “‘Local government’ means any county, city and county, city, or town, whether statutory or home rule, acting through its governing body or any board, commission, or agency thereof having final approval authority over a site specific development plan, including without limitation any legally empowered urban renewal authority.” 17. Section 24-68-103(1)(b) of the Vested Rights Statutes reads in full: “A vested property right shall be deemed established with respect to any property upon the approval, or conditional approval, of a site specific development plan, following notice and public hearing, by the local government in which the property is situated.” 18. Neither the District nor the Enterprise is a “local government” as this term is defined and used in the Vested Rights Statutes. 19. While the City is a “local government” under the Vested Rights Statutes, the Commission did not approve the Enterprise’s SPAR application and, even it had, such approval 9 would not have been the approval of a “site specific development plan” under the City’s LUC or under the Vested Rights Statutes. 20. The Board’s adoption of the Resolution has not established under the Vested Rights Statute a vested property right for the Enterprise’s development and use of the Diversion Structure and the Pipeline. 21. Venue for this action is proper in this Court under C.R.C.P. 98(a) because the Diversion Structure and Pipeline are proposed to be located on real property located within Larimer County and under C.R.C.P. 98(c)(1) because the City, the District and the Enterprise are all residents of Larimer County. First Claim for Relief (Declaratory Relief Against Northern Pursuant to C.R.C.P. 57 and Uniform Declaratory Judgments Law) 22. The City incorporates herein by reference its allegations above in paragraphs 1 through 21 of this Cross Claim. 23. The Court has subject matter jurisdiction over this First Claim for Relief as provided in C.R.C.P. 57 and in the Uniform Declaratory Judgments Law in Article 51 of Title 31 of the Colorado Revised Statutes. 24. A controversy exists between the City and Northern as to whether the Board’s adoption of the Resolution has established a vested property right under the Vested Rights Statutes for the Enterprise’s development and use of the Diversion Structure and the Pipeline. 25. The City requests a declaration from this Court that the Board’s adoption of the Resolution has not established a vested property right under the Vested Rights Statutes for the Enterprise’s development and use of the Diversion Structure and the Pipeline. Second Claim for Relief (Review Pursuant to C.R.C.P. 106(a)(4) of Board’s Resolution) 26. The City incorporates herein by reference its allegations above in paragraphs 1 through 21 of this Cross Claim. 27. To the extent the Board’s Resolution is a final quasi-judicial decision, the Court has the jurisdiction to review the Resolution under C.R.C.P. 106(a)(4). 28. Since neither the District nor the Enterprise is a “local government” under the Vested Rights Statutes, the Board is without any jurisdiction and legal authority to establish in the Resolution a vested property right under the Vested Rights Statutes for the Enterprise’s development and use of the Diversion Structure and the Pipeline. 10 29. In adopting the Resolution and claiming the establishment of a vested property right under the Vested Rights Statutes for the Diversion Structure and the Pipeline, the Board has therefore exceeded its jurisdiction and abused its discretion. 30. The City is without a plain, speedy and adequate remedy otherwise provide by law and, therefore, is entitled to relief under C.R.C.P. 106(a)(4). WHEREFORE, the City respectfully requests the Court to grant the following relief against the District and Enterprise: A. Find and declare that the Board’s adoption of the Resolution has not established a vested property right under the Vested Rights Statutes for the Enterprise’s development and use of the Diversion Structure and the Pipeline; B. Find and declare that the Board’s adoption of the Resolution claiming the establishment of vested property right under Vested Rights Statutes for the Enterprise’s development and use of the Diversion Structure and the Pipeline constitutes the Board exceeding its jurisdiction and abusing its discretion; C. Award the City its attorney fees and costs pursuant to Colorado law; and D. For such other and further relief as this Court deems just and proper. DATED this 28th day of September, 2021. Respectfully submitted, NATHAN DUMM & MAYER P.C. s/Marni Nathan Kloster_______ Marni Nathan Kloster, #34947 Nicholas C. Poppe, #47507 -AND- FORT COLLINS CITY ATTORNEY’S OFFICE /s/John R. Duval_____________ John R. Duval #10185 Attorneys for the City of Fort Collins 11 CERTIFICATE OF ELECTRONIC FILING The undersigned hereby certifies that a true and correct copy of the foregoing was filed via Colorado Courts E-Filing and served this 28th day of September 2021, on the following: John M. Barth, Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 (fax and phone) barthlawoffice@gmail.com Attorney for Plaintiff Bennett W. Raley, #13429 Peggy E. Montano, #11075 William Davis Wert, #48722 Mirko L. Kruse, #52488 TROUT RALEY 1120 Lincoln Street, Suite 1600 Denver, CO 80203 Telephone: (303) 861-1963 Fax: (303) 832-4465 barley@troutlaw.com, pmontano@troutlaw.com, dwert@troutlaw.com, mkruse@troutlaw.com Attorneys for Northern Integrated Supply Project Water Activity Enterprise /s/ Cary J. Carricato ________________