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 - 001B - Exhibit 2 1
LAW OFFICE OF
JOHN M. BARTH
___________________________________________________
P.O. BOX 409 HYGIENE, COLORADO 80533 (303) 774-8868 BARTHLAWOFFICE@GMAIL.COM
By email: psizemore@fcgov.com, cchampine@fcgov.com
Paul Sizemore, Interim Director
Community Development and Neighborhood Services
Caryn Champine, Director
Planning, Development & Transportation
City of Fort Collins
281 North College Avenue
Fort Collins, CO 80524
April 19, 2021
Mr. Sizemore and Ms. Champine:
On behalf of Save the Poudre and its numerous members residing in Fort Collins, we are
requesting an interpretation of the Fort Collins Land Use Code pursuant to Division 1.4 et seq. as
it relates to the recently submitted Conceptual Review Application (“application”) for the project
described as “Northern Integrated Supply Project (NISP) Site Plan Advisory Review” for the
“request to install approximately 18,000 linear feet of buried water pipeline…[and] Poudre
Intake Diversion Structure.”1
Northern’s “Conceptual Review Application” also includes an “attached map for extents
of infrastructure within City Limits.”2 The map includes the proposed pipeline path, the location
of the diversion structure, and also appears to locate a “Poudre River Intake Pump Station” either
on City owned property and/or on property located within the City limits.3 We note that neither
the NISP Conceptual Review Application nor the March 4, 2021 Conceptual Review Agenda
states that legal authority or legal basis for the City Staff’s purported conclusion that “[t]his
project is subject to a Site Plan Advisory Review.”4 The item is docket number CDR210016 and
the conceptual review hearing was held on March 4, 2021.
Please be aware that Save The Poudre has filed two legal actions in Larimer County
District Court that challenge Larimer County’s 1041 permit/approval, including but not limited
to challenges to the construction and operation of the pipeline, diversion structure, and Poudre
1
See, City of Fort Collins, “Conceptual Review Agenda” dated March 4, 2021 attached hereto
as Exhibit 1, p. 1.
2
Exhibit 1, p. 14 of pdf hereto.
3
Exhibit 1, p. 15 of pdf hereto.
4
Exhibit 2, p. 1 hereto.
DATE FILED: June 9, 2021 2:57 PM
FILING ID: 25B6CAFF36124
CASE NUMBER: 2021CV30425
2
River Intake Pump Station.
Legal Authority for Request for Interpretation
The applicable provisions of Division 1.4 of the Fort Collins Land Use Code read as
follows:
1.4.1 - Authority
The Director shall have the authority to make all interpretations of the text of this land
use code and the boundaries of zone districts on the zoning map.
1.4.2 - Initiation
An interpretation may be requested by any person.
1.4.3 - Procedures
(A) Submission of request for interpretation. Before an interpretation may be provided by
the director, a request for interpretation must be submitted to the director in a form
established by him or her.
(B) Determination of Sufficiency. After receipt o f a Request for Interpretation, the Director
shall determine whether the request is complete, specific, clear and ready for review. If
the Director determines that the request is not complete, he or she shall serve a written
notice on the applicant specifying the deficiencies. The Director shall take no further
action on the Request for Interpretation until the deficiencies are remedied.
(C) Rendering of Interpretation. After the Request for Interpretation has been determined
to be sufficient, the Director shall review and evaluate the request in light of the terms
and provisions of this Land Use Code and/or the Zoning Map, whichever is applicable,
and render an interpretation. The Director may consult with the City Attorney and other
City departments before rendering an interpretation.
(D) Form. The interpretation shall be in writing and shall be delivered to the applicant.
Interpretations that are not in writing shall have no force or effect. Interpretations shall
have no precedential value and shall be limited in their application to the property, if
any, identified in the interpretation.
(E) Official Record. The Director shall maintain an official record of all interpretations in
the Department. Such official record shall be available for public inspection during
normal business hours.
(F) Appeal. Appeals of any interpretation under this Section shall be made only in
accordance with Division 2.11.
Per prior communication with your office, there appears to be no particular form required
for the submission of this request for interpretation, so please accept this letter as a formal
request for interpretation regarding the following questions related to the NISP proposal.
Interpretation Request 1. Does the SPAR process apply to the NISP Conceptual Review
Application when Northern does not “own or operate” the parcels upon which the proposal is
3
located? For the following reasons, we ask that the City reach an interpretation of State
law and/or the City Land Use Code does not allow SPAR to be used for the NISP project as
proposed. Please provide an interpretation consistent with this request and provide all
legal authority for any interpretation.
Division 2.1.3(E)(1) of the Fort Collins Land Use Code reads as follows:
(E) Site Plan Advisory Review.
(1) Purpose and Effect. The 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.
There is no evidence in the record that Northern “owns or operates” the parcels upon which it
proposes construction. Instead, the parcels appear to be owned and operated by the City of Fort
Collins and/or other private entities. For example, it does not appear that Northern “owns or
operates” all parcels upon which the pipeline would be located within the City, the parcels upon
which the diversion structure would be located, and the property upon which the pump station would
be located. Please identify each parcel shown on the Conceptual Review Application map that
would be affected by the proposed project and state the owner of each parcel.
For the reasons stated above, Save the Poudre does not believe SPAR is applicable to the
NISP project because Northern does not “own or operate” the parcels in questions.
Interpretation Request 2. Division 2.1.3(E)(2) of the Fort Collins land use code reads as
follows:
(E) Site Plan Advisory Review. (2) Applicability. A Site Plan Advisory Review shall be
applied to any public building or structure.
As noted above in Division 2.1.3(E)(1) and (2), Northern must prove that it proposes
“improvements” to existing “public buildings or structures” in property it owns or operates. We
request that the City reach an interpretation that SPAR is not applicable because the
proposed project would not result in “improvements” to existing “public buildings or
structures” owned or operated by Northern. The diversion structure, pipeline, and/or pump
station do not constitute “improvements” to existing “public buildings or structures.” Instead,
these would be entirely new facilities and would not be “improvements” to existing “public
buildings or structures.”
Interpretation Request 3. Is the applicant, “Northern Integrated Supply Project Water Activity
Enterprise” a “public entity” that may utilize the SPAR process? Save the Poudre does not
believe that the applicant is a “public entity” that may invoke SPAR. We ask that the City find
that the applicant is not a “public entity” as contemplated by Division 2.1.3(E)(1) of the Fort
Collins Land Use Code. Please provide a legal interpretation regarding whether the applicant is a
public entity and provide all legal authority relied upon.
Interpretation Request 4. For the following reasons, we ask that you reach an interpretation
that C.R.S. § 31-23-209 and SPAR are not applicable to Northern’s Conceptual Review
Application. All facts asserted in Interpretation Requests 1-3 above are incorporated herein by
reference.
4
C.R.S. § 31-23-209 applies to planning commissions and municipalities, not state public entities.
The statute reads as follows:
When the commission has adopted the master plan of the municipality or of one or more
major sections or districts thereof, no street, square, park or other public way, ground or
open space, public building or structure, or publicly or privately owned public utility
shall be constructed or authorized in the municipality or in such planned section and
district until the location, character, and extent thereof has been submitted for approval
by the commission. In case of disapproval, the commission shall communicate its reasons
to the municipality's governing body, which has the power to overrule such disapproval
by a recorded vote of not less than two-thirds of its entire membership. If the public way,
ground space, building, structure, or utility is one the authorization or financing of which
does not, under the law or charter provisions governing the same, fall within the province
of the municipal governing body, the submission to the commission shall be by the
governmental body having jurisdiction, and the planning commission's disapproval may
be overruled by said governmental body by a vote of not less than two-thirds of its
membership. The failure of the commission to act within sixty days from and after the
date of official submission to it shall be deemed approval.
The term “municipality” is defined in C.R.S. § 31-1-101 (6) as “a city or town…”. The term
“governing body” is defined in C.R.S. § 31-1-101 (4) as “the city council of a city…or any other
body, by whatever name known, given lawful authority to adopt ordinances for a specific
municipality.” Neither Northern nor the Enterprise a “city or town” as defined in C.R.S. § 31-1-
101 (6). Further, neither Northern nor the Enterprise is a “governing body” as defined in C.R.S.
§ 31-1-101 (6) because neither has been “given lawful authority to adopt ordinances for” the City
of Fort Collins. Thus, please reach a finding neither Northern nor the Enterprise has the legal
authority to “overrule” a SPAR decision by the Planning and Zoning Board and/or the City
Council.
We request an expedited response to the above four interpretation requests based on the
impending neighborhood meeting scheduled for April 20, 2021. An interpretation of the
applicability of SPAR is needed for this project proposal once it is received as n Conceptual
Review Application. The City should not proceed with a review of the Conceptual Review
Application until a determination of the applicability of SPAR is determined.
We also request that the City of Fort Collins immediately impose a stay on any further
processing of Northern’s Conceptual Review Application pursuant to Land Use Code §2.16.2. If
an interpretation is not made in timely response to this request, and the City continues to process
the application, as if SPAR was applicable, the process could be completed within the 60 day
statutory response time even if the City ultimately found that SPAR was not applicable to the
project. Under any circumstances, a project needs to meet the requirements of SPAR before
entering the Site Plan Advisory Review procedures.
Sincerely,
s/ John Barth
5
Exhibits 1 & 2
cc: Gary Wockner
Fort Collins City Council
Fort Collins City Attorney