Loading...
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 - 002 - Motion For Preliminary Injunction Larimer County District Court 201 La Porte Ave, Suite 100 Fort Collins, CO 80521 SAVE THE POUDRE, and NO PIPE DREAM CORPORATION Plaintiffs v. THE CITY OF FORT COLLINS, a Colorado home rule city and municipal corporation, PAUL SIZEMORE, in his official capacity as Interim Director of Community Development & Neighborhood Services Department of the City of Fort Collins, NORTHERN INTEGRATED SUPPLY PROJECT WATER ACTIVITY ENTERPRISE. 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 2021CV030425 Division 5B PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION AND REQUEST FOR EMERGENCY HEARING ________________________________________________________________________ Plaintiffs Save the Poudre and No Pipe Dream Corporation (collectively, “Plaintiffs”) move this Court to issue a temporary restraining order and/or preliminary injunction ordering the Defendant City of Fort Collins and/or Defendant Paul Sizemore (in his official capacity as Interim Director of the Community Development & Neighborhood Services Department of the City of Fort Collins) to vacate the Site Plan Advisory Review (“SPAR”) land use hearing before the City of Fort Collins Planning & DATE FILED: June 9, 2021 4:02 PM FILING ID: AFF1937935C59 CASE NUMBER: 2021CV30425 2 Zoning Commission currently scheduled for June 30, 2021 on the Northern Integrated Supply Project (“NISP”) SPAR application. Plaintiffs’ counsel consulted with the Fort Collins City Attorney’s Office and Defendant Northern’s counsel Bennett Raley before filing this Motion. The City of Fort Collins did not respond to Plaintiffs’ June 8, 2021 consultation as of the date of filing this Motion. Northern opposes the Motion. I. PROCEDURAL BACKGROUND Plaintiffs have filed a complaint under Colo.R.Civ.Pro. 57 seeking declaratory relief that the City of Fort Collins’ Site Plan Advisory Review (“SPAR”) land use process, as stated in Section 2.1.3(E) of the City’s Land Use Code (“LUC” or “Code”), is not legally applicable to the NISP SPAR application, as submitted by Defendant Northern on May 5, 2021, because the SPAR permit applicant does not own or operate the parcels subject to the SPAR application. Plaintiffs’ complaint also seeks preliminary relief to vacate the NISP SPAR public hearing before the City’s Planning & Zoning Commission currently scheduled for June 30, 2021. II. STATEMENT OF FACTS 1. The Northern Integrated Supply Project, a water storage and supply project proposed by Northern Integrated Supply Project Water Activity Enterprise, is one of the largest construction projects to ever be proposed for Larimer County. 2. NISP involves, inter alia, the construction of a water diversion structure on the Cache la Poudre River known as the Poudre River Intake. Complaint, Exhibit 4. NISP also involves construction of a related water pipeline. Id. 3 3. Northern submitted a SPAR land use application for NISP on May 5, 2021. Complaint, Exhibit 4. 4. The parcels upon which Northern proposes to construct the Poudre River Intake and portions of the water pipeline are located on parcels owned by the City of Fort Collins and within the boundaries of the City of Fort Collins. Complaint Exhibit 5, p. 2; Complaint Exhibit 6, p. 4; Complaint Exhibit 8, p. 5; Complaint Exhibit 13; and Complaint Exhibit 14. 5. The proposed Poudre River Intake would be located on City-owned property known as the Homestead Natural Area. Complaint Exhibit 5, p. 2. 6. The relevant portions of the water pipeline would be located on City- owned property known as the Riverbend Ponds Natural Area. Complaint Exhibit , p. 2. 7. The SPAR permit applicant, Northern, does not own or operate the parcels upon which the Poudre River Intake and relevant portions of the pipeline would be located. 8. The Homestead and Riverbend Ponds Natural Areas were purchased, developed, and maintained by the City using taxpayer dollars for the protection of the natural resources in and around the Cache la Poudre River. Complaint Exhibit 5, p. 1. 9. 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. Complaint Exhibit 5, p. 1. Hundred year old trees will dry up, understory plants will shift to more drought 4 tolerant species, biodiversity will decrease, and forests and wetland dependent animals will disappear. Id. Once these injuries occur, they would be irreparable. 10. The construction and operation of the Poudre River Intake and relevant portions of the water pipeline would generate noise, dust, truck traffic, air pollution, water pollution, recreational closures and other adverse recreational and domestic impacts on City of Fort Collins residents that use and enjoy the Natural Areas paid for through their taxes and fees. Exhibit 1, p. 3, ¶ 14 hereto (Declaration of Gary Wockner); Complaint Exhibit 5, p. 1. 11. On April 16, 2020 the Fort Collins City Manager informed then 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.” Complaint Exhibit 6, 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. 12. As of May 5, 2021, Northern did not own or operate the parcels of property that are the subject of its SPAR application. Therefore, Plaintiffs’ procedural rights are being violated by Northern pursuing the inapplicable SPAR land use approval process and the City’s determination that the SPAR process applies to NISP and its ongoing processing of Northern’s SPAR application. 13. On May 5, 2021 the City Defendants issued a written interpretation that the SPAR land use process was applicable to NISP. Complaint Exhibit 3. 5 14. Plaintiffs and their members’ procedural and/or due process rights are also adversely impacted by the City’s May 5, 2021 Interpretation and the City’s processing of Northern’s land use application under SPAR. The SPAR process does not provide a full quasi-judicial process--public notice, public comment, and rights of appeal. The SPAR process may also allow the applicant’s governing body to override a final decision by the City on the land use application. Exhibit 1, p. hereto (Declaration of Gary Wockner, p. 4, ¶16). Plaintiffs and their members assert in this action that the SPAR procedure is not legally applicable to NISP as proposed by Northern. 15. Northern will not commence construction of the Poudre River Intake and pipelines until 2024. Exhibit 2 hereto, p. 21. Construction will continue through 2029. Id. Operation of the pipelines will not occur until 2030. Id. 16. Northern has yet to acquire all of the federal, state and/or local permit approvals required to commence construction of NISP, including not having acquired a federal Clean Water Act Section 404 dredge and fill permit, 33 U.S.C. § 1344. Id. at pp. 23-25. 17. Northern has not yet acquired the water agreements to complete NISP. Exhibit 3 hereto. STATEMENT OF LAW Under LUC Section 2.1.3(E)(1), the SPAR land use process applies only to “parcels owned or operated” by the appropriate SPAR permit applicant. Complaint Exhibit 7. Section 2.16 of the Code makes clear that “applicability of a Site Plan Advisory Review is contained in Section 2.1.3(E).” Complaint Exhibit 7. 6 ARGUMENT Plaintiffs’ motion for preliminary relief should be granted because they have a reasonable probability of success on the merits, there is a real danger of irreparable injury to Plaintiffs and the environment, an injunction can prevent the harm, and the public interest and equities favor issuance of preliminary relief. (a) Plaintiffs have a reasonable probability of success on the merits. Under LUC Section 2.1.3(E)(1), the SPAR land use only applies to “parcels owned or operated” by the appropriate SPAR permit applicant. Complaint Exhibit 7. Section 2.16 of the Code makes clear that “applicability of a Site Plan Advisory Review is” governed by Section 2.1.3(E).” Id. (emphasis added). As a matter of law, courts “first look to the statutory language, giving words and phrases their commonly accepted and generally understood meanings.” Golden Run Estates, LLC v. Town of Erie, 401 P.3d 87, 92 (Colo.App. 2016)(involving a municipal ordinance). “Where the language of a statute is plain and the meaning is clear, we need not resort to interpretive rules of statutory construction, but must apply the statute as written.” Id. The plain language of Section 2.1.3 (E)(1) of the Code is crystal clear. The SPAR land use process is only applicable to parcels owned or operated by the SPAR permit applicant. Northern does not own or operate the parcels that are the subject of its SPAR application. Instead, it is the City of Fort Collins that owns and operates the parcels as City of Fort Collins Natural Areas, which are used and enjoyed by the public. Thus, until such time as Northern acquires a property interest in the relevant parcels, it is not entitled 7 to utilize the SPAR land use process to develop those parcels. (b) There is a danger of real, immediate, and irreparable injury that may be prevented by injunctive relief. The City of Fort Collins’ own Land Conservation and Stewardship Board, within the City of Fort Collins Natural Areas Department, found 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. Complaint Exhibit 5, 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. Id. Once these injuries occur, they would be irreparable. Further, construction of the Poudre River Intake and water pipeline would likely involve recreational closure of the Natural Areas enjoyed by Plaintiffs’ members, as well as noise, water pollution, air pollution, aesthetic injury and other irreparable injuries. Exhibit 1 hereto, p. 3, ¶ 14. Finally, allowing the June 30, 2021 Planning & Zoning Commission SPAR hearing to proceed would irreparably deny Plaintiffs and their members of their rights under the Land Use Code to a full development review process involving public notice, comment, and rights of appeal. Exhibit 1 hereto, p. 4, ¶ 16. Finally, the City takes the position that any adverse determination on Northern’s SPAR land use application by the Planning & Zoning Commission could be overturned by the SPAR applicant itself. Complaint Exhibit 3, p. 4. Such extraordinary veto power does not exist under a full development review process. Allowing a land use applicant to overturn the desires of City residents and City government would cause irreparable harm 8 to the Natural Areas and Plaintiffs’ members rights under the Land Use Code. The danger of irreparable harm is immediate because the Commission hearing is scheduled for June 30, 2021. Complaint Exhibit 1. Further, under the Code, the Planning & Zoning Commission has only 60 days to render a decision on Northern’s SPAR application. Complaint Exhibit 7 (LUC § 2.1.3(E)(2)). (c) There is no plain, speedy, and adequate remedy at law A declaratory judgment and injunctive relief under Colo.R.Civ.Pro 57 is the only plain, speedy and adequate legal remedy available to Plaintiffs to prevent adjudication of the NISP SPAR application by Planning & Zoning Commission. (d) Granting of preliminary relief will not disserve the public interest. Plaintiffs bring this case in the public interest. Plaintiffs’ members are residents, taxpayers, and homeowners in the City of Fort Collins that would be adversely impacted by adjudication, construction, and operation of NISP in a manner that fails to meet the requirements of the City’s Land Use Code. Thus, Plaintiffs’ request for preliminary relief is in furtherance of the public’s interest of fairness and due process. (e) The balance of equities favors the injunction Issuance of a preliminary injunction will not harm Defendants. The City of Fort Collins and Defendant Sizemore do not have any legal or equitable right to process NISP land use proposals in a manner inconsistent with the Code. Further, a delay in the processing of a NISP land use application will not harm Northern. Northern does not currently have all federal permit approvals to begin construction of NISP. Exhibit 2 hereto, pp. 23-25. In fact, Northern will not commence construction of NISP until 2023 under the current schedule. Id. at p. 21. Actual water deliveries would not occur until 9 2030 were the project to be approved and constructed according to schedule. Id. As such, none of the Defendants will be harmed by the requested preliminary relief. In contrast, the equities greatly favor Plaintiffs’ request for issuance of preliminary relief. Unless a preliminary relief is issued, Plaintiffs’ procedural and/or due process rights will be violated on June 30, 2021—the date of the SPAR Planning & Zoning Commission hearing. The only way to prevent this procedural and substantive violation of the Code is the issuance of preliminary relief. The equities balance in favor of Plaintiffs. (e) The injunction will preserve the status quo pending a trial on the merits. Finally, a preliminary injunction will preserve the status quo. The status quo is that Northern’s SPAR application has yet to be processed and decided by the Planning & Zoning Commission. Preliminary relief will preserve that status quo. In contrast, without preliminary relief, the Commission’s Board’s June 30, 2021 hearing will proceed, breaking with the current status quo. CONCLUSION For the reasons stated herein, Plaintiffs request that the Court issue preliminary relief ordering Defendants City of Fort Collins and/or Paul Sizemore to vacate the Planning & Zoning Commission NISP SPAR hearing scheduled for June 30, 2021 and to postpone any further processing the NISP SPAR application until a final decision on the merits of this case by the Court. Plaintiffs request an emergency hearing before June 30, 2021. 10 Respectfully submitted this 9th day of June 2021. /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 EXHIBIT LIST Exhibit 1- Declaration of Gary Wockner Exhibit 2-Project Description Exhibit 3- Article CERTIFICATE OF DELIVERY I hereby certify that on this 9th day of June 2021, a true and correct copy of the foregoing Plaintiffs’ Motion for Temporary Restraining Order and/or Preliminary Injunction and Request for Emergency Hearing, as well as all exhibits hereto were filed via Colorado Courts E-filing System and was served by email to Defendants’ legal counsel. DEFENDANTS CITY OF FORT COLLINS AND PAUL SIZEMORE jduval@fcgov.com John Duval Deputy City Attorney, City of Fort Collins DEFENDANT NORTHERN WATER braley@troutlaw.com Bennett Raley Trout and Raley 1120 Lincoln St., Suite 1600 Denver, CO 80203-2141 /s/ John M. Barth John M. Barth